The Supreme Court consists of the Chief Justice and 25 other judges. In 1950, when the Court was inaugurated with the new Constitution, it had only 8 judges. But a parliamentary enactment in 1960 increased the strength to 11 and subsequent enactment in 1968, raised it to 14. That was the position until 1978 when an amendment further raised the authorised strength of the judges from 14 to 18. The latest amendment makes the total 26 including the Chief Justice.
The Constitution envisages an independent Court. The independence of the judges is ensured by the following provisions:
Every judge of the Supreme Court is appointed by the President of India after consultation with such of the judges of the Supreme Court and the High Courts of the States as the President may deem necessary for the purpose. But in the appointment of a judge, other than the Chief Justice, consultation of the Chief Justice of India by the President is obligatory.
The provision for consultation with the Chief Justice is founded on the principle that in a matter that vitally concerns the judiciary no decision ought to be taken by the Executive without obtaining the advice of the Chief Justice who is the best person by training and experience to give such advice.
Even so, the Chief Justice does not exercise the function alone. A collegiums of four senior most judges of the Supreme Court along with the Chief Justice jointly deliberates the issue and as a result the advice is given to the President. Such a procedure ensures impartiality and objectivity in this very important matter which has far-reaching implications in the independence of the judiciary.
The Constitutional Review Commission has considered this matter in detail and made recommendation for the constitution of the National Judicial Commission to deal with this and other related matters.
The Commission should consist of the Chief Justice of India (Chairman), two senior most Judges of the Supreme Court of India, the Union Minister of Law and Justice and an eminent person nominated by the President of India after consulting the Chief Justice of India. The establishment of the National Judicial Commission and its composition are intended to preserve the independence of the Judiciary.
However, so far the proposed National Judicial Commission has not yet been constituted. That means, today for all practical purposes, the Chief Justice of India and for senior-most judges of the Supreme Court of India decide every matter connected with the appointment of Judges both of the Supreme Court and High Courts in India.
They also decide the question of transfer judges from one High Court to another. They also deal with any other matter connected with the functioning of the High Courts including the discipline of the High Court judges.
The elimination of politics in the appointment of judges is further achieved by prescribing high minimum qualifications in the Constitution itself. This is also intended to enhance the competence of those appointed as the judges of the highest court in the land.
The qualifications are: the person concerned must be a citizen of India and (a) has been a judge of a High Court at least for five years; or (b) has been for at least ten years an advocate of a High Court; or (c) is in the opinion of the President a distinguished jurist.
The inclusion of the last provision which would enable the President to appoint a distinguished jurist on the Supreme Court, even if he did not qualify by a specified number of years of practice at the Bar, was intended to open a wider field of choice. Under this provision, for instance, a distinguished jurist who holds a chair in a University will be qualified for appointment to the Supreme Court 1 .
Although the Constitution does not provide for life tenure, the existing provision in effect amounts to nearly the same, as judges once appointed, hold office until they complete the age of 65 years. A retiring age of 65 is by Indian standards, very high, considering the average expectation of life in India and the average fitness of persons for work in old age.
(4) Prohibition of Practice after Retirement
A retired judge of the Supreme Court is prohibited from practicing law before any Court or authority within the territory of India. But there is no constitutional prohibition against a retired judge being appointed for a specialised form of work by the Government.
A judge of the Supreme Court can be removed from his position only on the ground of proved misbehaviour or incapacity. Parliament is empowered to regulate the procedure for the investigation and proof of such misbehaviour or incapacity.
But whatever be the procedure, each House, in order to remove the judge, will have to pass a resolution supported by two-thirds of the members present and voting and a majority of the total membership of the House. Such a resolution will be addressed to the President who will then pass the order of removal of the judge.
So far, there has been only one case where the process of removal of a Judge of the Supreme Court was initiated. But the resolution to remove him did not get the required majority in Parliament and hence the move was a failure.
A very important element that determines the independence of any functionary is the remuneration that he receives as well as its dependence or otherwise on the will of somebody else. With respect of the judges of the Supreme Court, the Constitution has taken good care of this.
Unlike many other Constitutions which leave the fixation of the salary to the legislature, it has prescribed that a salary of Rs. 9,000 per month should be paid to every judge except the Chief Justice who should receive a salary of Rs. 10,000 per month.
In addition, each judge is also entitled to a free house and certain other allowances and privileges. Neither the salary, allowances and privileges, nor his rights in respect of leave of absence or pension (to which he is entitled after retirement) can be varied to his disadvantage after his appointment.
There is, however, one exception to this almost absolute rule. The salaries of the judges may be reduced by a law of Parliament during a grave financial emergency proclaimed by the President.
The framers were not content with this alone. They went a step further and authorised the Supreme Court to have its own establishment and to have complete control over it. In the absence of such a provision they thought that the Court’s independence may become illusory.
If the establishment looks for preferment or for promotion to other quarters, it is likely to sap the independence of the judiciary. Hence all appointments of officers and servants of the Supreme Court are to be made by the Chief Justice or any other judge or officer whom he may direct for the purpose.
The conditions of service of such officers and servants also are determined by the Court. Further, all administrative expenses, salaries, etc., connected with these officials and servants as well as the other maintenance charges of the Court’s establishment as a whole, are charged on the Consolidated Fund of India.
Finally, the independence of the Court is further safeguarded by making all the actions and decisions of the judges in their official capacity immune from criticism. This does not mean that no one may subject a decision of the Court or an opinion of a judge to a critical academic analysis.
All that is prohibited is the imputation of motives on the part of the judges in arriving at decisions and taking action. Even Parliament may not discuss the conduct of a judge except when a resolution for his removal is before it. In order to maintain the dignity of the Court and to protect it from malicious and tendencies criticism, it has the power of initiating contempt proceedings against any alleged offender and take appropriate action.
As Ambedkar said in the Constituent Assembly, it was the intention of the framers to create a judiciary and to give it ample independence so that it could act without fear or favour of the executive or anybody else.
There was no intention, however, to create an imperium in imperio which would have created unwanted rivalries between the judiciary and the executive resulting in unexpected conflicts. The last six decades of the work of the Court have vindicated the expectations of the framers of the Constitution.