Appointment of Judges to the Supreme Court

Appointment of Judges to the Supreme Court : 

The composition of Judges in the Supreme Court comprises its establishment, and it involves in constitution of Supreme Court – This subject is specifically dealt under chapter IV of the Constitution. The Union Judiciary Article 124(1)

Article 124(1) – The Constitution of Supreme Court of India consisting of a Chief Justice of India and not more than 7 other Judges initially. That was subsequently amended to 25 other Judges by Act 22 of 1986 Amendment.

Article 124(2) – Every Judge of Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the states for the purpose, and the Judges of Supreme Court shall retire until he attains the age of 65 years. 

Justice Bhagavathi desired for a National Court of Appeal, which would be in a position to entertaine Appeals[1].

From the bare reading of Article 124 with its clauses 1 to 7 it is clearly spelt out regarding the qualifications, procedure and other requirements, regarding the appointment of other judges of the Supreme Court. Whereas, significantly the manner, the procedure, the qualification for the appointment of Chief Justice of India is not dealt with under this Article 124. Therefore the appointment of Chief Justice of India impliedly is left to be followed by convention. That means the Chief Justice of India shall be appointed from a Judge who is senior most among the Judges of the Supreme Court. This convention has been continuously followed from 1950 onwards. But, however, there was a breach in the convention. 

When Indira Gandhi as Prime Minister in the year 1974, preferred Justice A.N.Ray of the Supreme Court of India to be elevated as Chief Justice of India by superseding the seniority of Justice Shalat, Justice Grover and Justice K.S.Hedge. This was the first ever occasion a controversy has been raised on the appointment of Chief Justice of India, the highest judicial post of the country. The President appointed Justice A.N.Ray as Chief Justice of India on this matter a lot of discussion was raised among the legal fraternity across the country. Consequently, the 3 senior judges of Supreme Court Justice Shalat, Justice Grover and Justice K.S.Hedge resigned their post as the judges of the Supreme Court since as a measure of protest since they were overlooked. And the convention of seniority was not followed. The resigned judges preferred to keep up their integrity, character and personality.

Provided that in case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. The Judge may resign, he may be removed from office in the manner provided under (4) of Article 124.

1. A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India.

2. He has been at least 5 years as a Judge of a High Court or 2 or more courts such in succession. (Or) He has been for at least 10 years as Advocate of High Court or 2 or more courts such in succession.

[1] Bhihar Legal Supports Society Vs CJ of India and another, 1986 (4) SCC 797.