Indian Judiciary: Appointment and Transfer of Judges

The judiciary is a vital pillar of Indian democracy, ensuring its smooth functioning. Judges play a central role in the judiciary’s success, and their efficiency is crucial. To maintain public faith and trust, it is essential to ensure unbiased and proper appointments of judges. The Indian Constitution lays down specific provisions governing the appointment and transfer of judges at various levels of the judiciary.

Appointment of Judges in the District Courts

Qualifications

Article 233 of the Indian Constitution outlines the qualifications for the appointment of District Judges. To be eligible, a person must:
Have practiced as an advocate or pleader for a minimum of seven years.
Not be engaged in any other Union or State government service.
Be recommended for employment by the High Court.

Procedure for Appointment

The appointment of District Judges follows a process of consultation. Article 233 mandates consulting the Governor of the State and the Judges of the High Court exercising jurisdiction in the State. Additionally, Article 235 grants High Courts the power to control the judicial service in the district and subordinate courts. Article 233-A validates appointments made before the Constitution’s Twentieth Amendment Act, 1966, even if they were not in strict accordance with Article 233 and Article 235.

Appointment of Judges in the High Courts

Qualifications

Article 217 of the Indian Constitution sets out the qualifications for High Court judges:
The appointee must be an Indian citizen.
They must have held a judicial office within the Indian territory for at least ten years.
They should have practiced as an advocate in the High Court for a minimum of ten years.

Procedure for Appointment

The appointment of High Court judges is done by the President of India through a warrant and seal. The process involves consulting the Chief Justice of India and the Governor of the State. The appointment of Judges, other than the Chief Justice, is done after consulting the Chief Justice of the respective High Court. The appointment of Additional Judges, as per Article 224, also follows similar procedures. Appointed judges hold office until the age of sixty-two and must take an oath before the State Governor as per Article 219.

Salary for the Judges Appointed

Article 221 of the Indian Constitution governs the salaries of High Court judges. The Parliament determines these salaries by law. Until specific provisions are made, salaries mentioned in the Second Schedule are followed. The Parliament also decides on pension and allowances for judges, which vary from time to time.

Procedure for Appointment of Additional and Acting Judges

The appointment of Additional Judges falls under Article 224. The President holds the power to appoint Additional Judges after obtaining permission and sanction from the Central Government for creating the necessary posts. Acting judges are appointed for three-month periods, and members of the bar are not preferred for these appointments.

Appointment of Judges in the Supreme Court

Procedure

The Supreme Court’s Judges are appointed as per Article 124 of the Indian Constitution. The Chief Justice of India and Judges of the Supreme Court are appointed through the collegium system. The President, after consulting the Chief Justice of India, other Supreme Court judges, and sometimes other High Court judges, appoints the judges. The Supreme Court can have a maximum of seven judges, but the Parliament can increase this number if needed. Judges can serve until the age of sixty-five.

Qualification

Article 124 outlines several qualifications for Supreme Court judges. The person must be an Indian citizen, not exceed sixty-five years of age, have served as a High Court judge for at least five years, and been an advocate in the High Court for ten years. The person should also be a distinguished jurist in the President’s opinion.

Salary

Article 125 of the Indian Constitution determines the salaries of Supreme Court judges. The salaries are higher compared to High Court judges and are decided by the Parliament through law. If specific provisions are not made, the salaries mentioned in the Second Schedule are provided.

Appointment of Acting Chief Justice and Ad Hoc Judges

Article 126 deals with the appointment of an acting Chief Justice when the office is vacant or the Chief Justice is unable to perform duties. Ad Hoc judges are appointed for special situations when the Supreme Court lacks the required quorum. The Chief Justice appoints Ad Hoc judges with the President’s consent.

Transfer of Judges

Transfer of Judges in the High Court

Article 222 of the Indian Constitution provides for the transfer of judges from one High Court to another, including the Chief Justice. The President holds the authority to transfer judges after consulting the Chief Justice. In addition to their salary, transferred judges may receive a compensatory allowance.

Landmark Judgments

Three landmark judgments have significantly influenced the appointment and transfer of judges:

S.P Gupta v Union of India: The judgment emphasized that the Chief Justice’s opinion is merely consultative, and the appointment’s power resides in the Central Government.
Supreme Court Advocates on record association v. Union of India: Known as the Second Judges case, it established the collegium system for judicial appointments, with the Chief Justice’s opinion having primacy.
In re Special Reference 1 of 1998: The case clarified that the term “consultation” in Articles 217(1) and 222(1) requires the Chief Justice’s opinion formed with a majority of judges.

Conclusion

The appointment and transfer of judges are critical aspects of ensuring a competent and impartial judiciary. The Indian Constitution provides specific guidelines and procedures to maintain the independence and integrity of the judiciary. Proper appointments and non-political transfers are essential for upholding public trust and maintaining the judiciary’s effectiveness in dispensing justice.