KNC501/KNC601 Constitution of India, Law and Engineering
Chapter 6: Judiciary
Unit 1
Unit 2
Unit 3
Unit 4
Unit 5
Appendix
Appointment and Transfer of Judges in Indian Judiciary:
Introduction
Judiciary in our country is the main pillar of democracy which helps in the smooth functioning of democracy. Judges are the main aspects of the judiciary. It is mandatory that the judges have to be efficient in order for the judiciary to be successful. There are many famous judges in our country who have brought out a lot of changes through their judgments which led to the overall development of this country. Judges are respected in our country and people have lots of faith and hopes on them, thus it is necessary to make sure that the appointment of judges is proper and not biased. Various provisions of our Indian Constitution deals with the appointment of Judges which has to be followed in every aspect of appointment.
1. Appointment of Judges in the Supreme Court:
• Procedure
There are various procedures for the appointment of Judges in the Supreme Court. The appointment is governed by various provisions in the Indian Constitution.
Article 124 of the Indian Constitution deals with the appointment of Chief Justice and Judges of the Supreme Court. The collegium system is still followed for the appointment of the Judges.
Article 124 of the Constitution says only seven judges can be appointed in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary.
The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the Supreme Court and also in certain cases other judges of the High Court.
The Judges can hold office until they attain 65 years of age.
Article 127 of the Indian Constitution deals with the appointment of ad-hoc judges in the Supreme Court.
• Qualification
Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the appointment. The person who satisfies all these necessary qualifications is only recommended. They are:
- The recommended person must be a citizen of India;
- They should not be above 65 years of age;
- They must have been a judge of one or more High courts continuously for five years.
- They must have been an advocate in the high court for at least ten years;
- The recommended person must be a distinguished jurist in the opinion of the President.
• Salary
The salaries of the Supreme Court judges are determined according to Article 125 of the Indian Constitution. The salary provided to the Supreme Court judges is high compared to the High Courts. The salary is determined by the Parliament by law and if provisions are not made clear the salary mentioned in the second schedule must be provided.
• Appointment of acting Chief Justice and Ad Hoc judges
Article-126 of the Indian Constitution deals with the appointment of acting Chief Justice.
The President can appoint other judges of this court as acting Chief Justice when the office of Chief Justice is vacant or they are unable to perform their duties due to various issues like health issues. Article 127 deals with the appointment of Ad Hoc judges. According to this Article, Ad Hoc judges can be appointed in various situations like when the quorum of the Judges of the Supreme Court are not available to hold or continue any session of the Court, then it is the duty of the Chief Justice to appoint Ad hoc judges with the consent of the President of India.
• Transfer of Judges in the High Court
Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The same procedure is also followed even for the transfer of Chief Justice. The President has the power to transfer the Judges from one High Court to another. This transfer must be made only after consulting the Chief Justice. There is also a provision for providing a compensatory allowance to the Judges who are transferred in addition to their salary.
• Conclusion
Judges are the most important part of the judiciary. It is important to ensure that the Judges are competent enough to handle various issues that arise every day. The appointment of Judges must be done properly and a lot of effort must be carried out while selecting the Judges. The Judges should not be transferred unnecessarily and the transfer must be done only when there is a proper reason. Judges should not be transferred for personal and political reasons. Thus the government and the judiciary must consider the appointment of Judges as a very important process and a lot of care must be taken.
2. Appointment of Judges in the High Courts
• Qualifications
There are certain qualifications which have to be fulfilled in order to appoint a person as a judge in the High Courts. The qualifications regarding the appointment are provided in Article 217. According to the Article,
- The person appointed must be a citizen of India;
- The person appointed should have held a judicial office in the territory of India for at least ten years;
- The person appointed should have been an advocate in the High Court for at least ten years.
• Procedure
Article 217 of the Indian Constitution provides the procedure regarding the appointment of judges in the High Courts. According to this Article,
- The judges of the High Courts can be appointed only by the warrant of the President and his seal;
- The appointment can be done only after consulting the Chief Justice of India and the Governor of the State;
- The appointment of Judges other than the Chief Justice can be done after consulting the Chief Justice of the High Court;
- The provisions under this article must be followed even while appointing the Additional Judges according to Article 224.
- The person can hold the office as a judge until he is sixty-two years old;
- The consultation must be very effective, that is all the necessary information about the person being recommended must be revealed and no information should be hidden in order to facilitate the appointment;
- The Judges appointed must take an oath before the Governor of the State according to Article 219. The oath must be according to the form that is provided for the purpose in the Third Schedule.
• Salary for the Judges appointed
Article 221 of the Indian Constitution provides various provisions regarding the salaries of High Court Judges. The salaries shall be determined by the Parliament by law and until the provision on the behalf is made, the salaries provided in the Second schedule must be followed. The article also says that the judges are entitled to receive pension and allowances which is decided by the Parliament and it varies from time to time.
• Procedure for appointment of additional and acting judges
The appointment of additional judges is governed by Article 224 of the Indian Constitution. The President has the power to appoint additional judges. The State Government should obtain the permission and sanction of Central Government in order to create a post for additional judges and for appointing additional judges. Article 224 also deals with the appointment of acting judges. They are appointed for a period of three months. The members of the bar are not preferred for the appointment.
3. Appointment of Judges in the District Courts
• Qualifications
Article 233 of the Indian Constitution deals with the appointment of District Judges. According to this article, there are certain qualifications for a person to be appointed as a District Judge, they are:
- The person has to be in practice as an advocate or pleader for seven years or more;
- The person should not be in working in any other services of the Union or the State;
- The person has to be recommended by the High Court for employment.
• Procedure for appointment
There are various procedures to be followed before the appointment of District Judges.
According to Article 233, the appointment can be done only after consulting the Governor of the State and also the Judges of the High Court that is exercising jurisdiction in the State.
Article 235 of the Indian Constitution provides powers to the High Courts to have control over the persons in the judicial service in the district court and other subordinate courts.
Article 233-A validates the appointment of Judges in the district court that was made before the commencement of the Constitution (Twentieth Amendment) Act, 1966 and they are held to be valid even though they are not in accordance with the provisions of Article 233 and Article 235.
