Article 124 of Indian Constitution

The Constitution of India lays the foundation for the country’s legal and judicial framework, and Article 124 plays a pivotal role in this structure by establishing the Supreme Court. As the highest judicial authority in India, the Supreme Court safeguards constitutional principles and serves as the final arbiter in legal disputes.

Original Text of Article 124 of Indian Constitution

“124. Establishment and Constitution of Supreme Court

(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years:

Provided that–

(a) a Judge may, by writing under his hand addressed to the President, resign his office

(b) a Judge may be removed from his office in the manner provided in clause (4).

(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.

[Editorial comment-The Constitution (Fifteenth Amendment) Act, 1963, in Article 124, a new clause (2A) was added. The age requirement for serving as a judge on the Supreme Court will be set by such power and in such way as Parliament may by legislation prescribe.]

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and–

(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

Explanation I– this clause “High Court’ means a High Court which exercises, or which at any lime before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II–In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4):

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”

Establishment and Composition of the Supreme Court

Article 124(1) of the Constitution states that there shall be a Supreme Court of India consisting of a Chief Justice of India (CJI) and a number of other judges, as determined by Parliament. Initially, the strength of the Supreme Court was fixed at eight judges, including the CJI. Over the years, this number has been increased multiple times to address the growing demand for justice.

Appointment of Judges under Article 124 of Indian Constitution

Under Article 124(2), judges of the Supreme Court are appointed by the President of India. The process involves consultation with the Chief Justice of India and other judges of the Supreme Court and High Courts as deemed necessary. Over time, the method of appointment has undergone significant evolution through judicial interpretations.

Qualifications for Appointment as an SC Judge under Article 124 of Indian Constitution

As per Article 124(3), an individual must meet the following qualifications to be appointed as a Supreme Court judge:

1. Citizenship: The individual must be a citizen of India.
2. Judicial Experience:
   • Must have served as a judge of a High Court (or multiple High Courts in succession) for at least five years, or
   • Must have been an advocate in a High Court (or multiple High Courts in succession) for at least ten years.
3. Distinguished Jurist: Alternatively, the individual can be recognised as a distinguished jurist by the President of India.

Notably, the Constitution does not prescribe a minimum age for appointment, allowing flexibility in recognising talent and merit.

Tenure of Judges

The tenure of Supreme Court judges is governed by Article 124(2), which stipulates the following:

• Retirement Age: Judges hold office until they reach the age of 65 years. This age limit is intended to balance experience with opportunities for younger legal minds.
• Resignation: A judge may resign by submitting a written letter to the President.
• Removal: A judge can be removed from office only through a rigorous process outlined in Article 124(4).

Removal of Judges under Article 124 of Indian Constitution

The removal process for Supreme Court judges is designed to ensure judicial independence while maintaining accountability. It is governed by Articles 124(4) and 124(5):

1. Grounds for Removal: Proven misbehaviour or incapacity.
2. Procedure: A motion for removal must be initiated in either House of Parliament.
   • The motion requires signatures from 100 Lok Sabha members or 50 Rajya Sabha members.
   • The Speaker or Chairman can admit or reject the motion.
   • If admitted, a three-member committee is constituted to investigate the charges. This committee includes:
     • The Chief Justice of India or a Supreme Court judge.
     • A Chief Justice of a High Court.
     • A distinguished jurist.
   • If the committee finds the judge guilty, the motion is debated in both Houses of Parliament.
   • The motion must be passed by a special majority (two-thirds of members present and voting, and a majority of the total membership).
   • If approved, the President issues an order for removal.

This detailed and stringent process ensures that removal is not arbitrary, thereby protecting judicial independence.

Oath or Affirmation

Under Article 124(6), every Supreme Court judge must take an oath or affirmation before assuming office. The oath is administered by the President or a designated representative. The judge pledges to:

• Bear true faith and allegiance to the Constitution.
• Uphold the sovereignty and integrity of India.
• Perform duties without fear, favour, affection, or ill will.
• Uphold the Constitution and laws of India.

Amendments and Notable Changes

99th Amendment Act (2014)

This amendment sought to replace the collegium system with the National Judicial Appointments Commission (NJAC) for judicial appointments. The NJAC included members from both the judiciary and the executive, aiming to make the process more accountable and participatory. However, in 2015, the Supreme Court declared the NJAC unconstitutional, reinstating the collegium system.

Landmark Cases Related to Article 124 of the Indian Constitution

S.P. Gupta v. Union of India (1981) – Judges Transfer Case I

S.P. Gupta v. Union of India case established that the executive had predominant control over judicial appointments, with the judiciary’s role limited to consultation. The Supreme Court ruled that the recommendations of the Chief Justice of India (CJI) could be rejected by the government for valid reasons. This judgment emphasised the power of the executive in judicial matters but was criticised for undermining judicial independence.

Supreme Court Advocates-on-Record Association v. Union of India (1993) – Judges Transfer Case II

Overruling the earlier decision, this case introduced the collegium system, giving primacy to the judiciary in appointments and transfers of judges. The court ruled that the CJI, along with senior judges, must play a decisive role in judicial appointments, ensuring independence from executive interference. This judgment became a cornerstone for protecting the judiciary’s autonomy.

In re Presidential Reference (1999)

The President sought clarification on the appointment and transfer process under Article 124. The Supreme Court stated that the CJI must consult a collegium of senior judges before making recommendations. It also clarified that the CJI’s recommendation is not binding if the collegium does not support it. This reinforced the principle of collective decision-making within the judiciary.

Supreme Court Advocates-on-Record Association v. Union of India (2015) – NJAC Case

The 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act were struck down. The court in Supreme Court Advocates-on-Record Association v. Union of India 2015 reinstated the collegium system, emphasising judicial independence. It ruled that the NJAC violated the basic structure of the Constitution by giving the executive an equal role in judicial appointments.

Conclusion

Article 124 of the Indian Constitution is the cornerstone of India’s judicial system. It establishes the Supreme Court as the guardian of the Constitution and ensures judicial independence through detailed provisions for appointment, tenure, and removal of judges. Over the years, judicial interpretations and amendments have shaped its implementation, striking a balance between accountability and autonomy. As India’s legal framework continues to evolve, Article 124 remains a testament to the framers’ vision of an independent and impartial judiciary.