Constitution of India
Article 124: Establishment and Constitution of Supreme Court
Part V — The Union, Chapter IV — The Union Judiciary
Clause (1) — Composition of the Supreme Court
WHAT IT SAYS: 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 thirty-three other Judges. WHAT IT MEANS: 1. The Supreme Court is a constitutional body — its existence does not depend on ordinary legislation. 2. Parliament can increase (but not decrease below original) the number of judges by law. 3. Current sanctioned strength = 34 (1 CJI + 33 judges), as fixed by the Supreme Court (Number of Judges) Amendment Act, 2019. 4. Original strength was 1 CJI + 7 other judges. KEY DOCTRINE: Constitutional permanence — the SC derives its existence directly from the Constitution, not from any statute.
Clause (2) — Appointment and Tenure of Judges
WHAT IT SAYS: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the SC and HCs as the President may deem necessary; the CJI shall always be consulted for appointment of judges other than CJI; judges hold office until age 65. WHAT IT MEANS: 1. Appointment is formally an executive act by the President. 2. 'Consultation' was judicially interpreted as 'concurrence' — giving primacy to CJI's opinion (Second Judges Case, 1993). 3. In practice, the Collegium system (CJI + 4 senior-most SC judges) recommends names. 4. The 99th Amendment (2014) tried to replace this with NJAC but was struck down in 2015. 5. A judge may resign by writing to the President, or be removed under Clause (4). KEY DOCTRINE: Collegium System — judge-made doctrine arising from Three Judges Cases; 'consultation' means 'concurrence'. AMENDMENT HISTORY: 1. 99th Amendment Act, 2014 — substituted 'after consultation' with 'on the recommendation of the NJAC referred to in Article 124A'. 2. This substitution was struck down as unconstitutional in Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1. 3. The original text with 'consultation' stands restored.
Clause (2A) — Determination of Age of Judges
WHAT IT SAYS: 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. WHAT IT MEANS: 1. Parliament is empowered to prescribe the method of age-verification for SC judges. 2. Prevents disputes about a judge's actual age from becoming justiciable without a framework. KEY DOCTRINE: None specific. AMENDMENT HISTORY: 1. Inserted by the Constitution (Fifteenth Amendment) Act, 1963. 2. Also re-inserted/renumbered by the 99th Amendment Act, 2014 (though the 99th Amendment's other changes were struck down, Clause 2A from the 15th Amendment remains valid).
Clause (3) — Qualifications for Appointment
WHAT IT SAYS: A person shall not be qualified for appointment as a SC Judge unless he is a citizen of India AND meets one of three criteria: (a) Has been for at least 5 years a Judge of a High Court or two or more such courts in succession; OR (b) Has been for at least 10 years an advocate of a High Court or two or more such courts in succession; OR (c) Is, in the opinion of the President, a distinguished jurist. WHAT IT MEANS: 1. No minimum age is prescribed. 2. Three entry routes: Bench (HC judges), Bar (advocates), and Distinguished Jurists. 3. 'Distinguished jurist' category was inspired by the U.S. practice of appointing professors (e.g., Justice Frankfurter) but has rarely been formally used in India. 4. Explanation I — 'High Court' includes pre-Constitution courts. 5. Explanation II — Period as advocate includes time spent holding judicial office not inferior to a District Judge. KEY DOCTRINE: Three-door entry — ensures diverse judicial experience on the SC bench.
Clause (4) — Removal of Judges (Impeachment)
WHAT IT SAYS: A Judge shall not be removed except by an order of the President passed after an address by EACH House of Parliament, supported by: (a) A majority of the total membership of that House; AND (b) A majority of not less than two-thirds of members present and voting; presented in the SAME session, on grounds of proved misbehaviour or incapacity. WHAT IT MEANS: 1. This is a 'special majority' — more stringent than ordinary or absolute majority. 2. Both Houses must pass the address in the same session. 3. Only two grounds: proved misbehaviour OR incapacity. 4. The process is quasi-judicial, not purely political. 5. No SC judge has ever been successfully removed through this process. KEY DOCTRINE: Security of tenure — ensures judicial independence by making removal extremely difficult.
Clause (5) — Parliamentary Regulation of Removal Procedure
WHAT IT SAYS: Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of misbehaviour or incapacity of a Judge under Clause (4). WHAT IT MEANS: 1. Parliament enacted the Judges (Inquiry) Act, 1968, under this power. 2. The Act prescribes: motion by 100 Lok Sabha MPs or 50 Rajya Sabha MPs → Speaker/Chairman admits → 3-member inquiry committee investigates → report to Parliament. 3. The investigation stage is distinct from the parliamentary voting stage. KEY DOCTRINE: Two-tier removal process — investigation is quasi-judicial; voting is parliamentary.
Clause (6) — Oath or Affirmation
WHAT IT SAYS: Every person appointed as a SC Judge shall, before entering office, make and subscribe before the President (or his appointee) an oath or affirmation in the form set out in the Third Schedule. WHAT IT MEANS: 1. The oath pledges true faith to the Constitution, upholding sovereignty and integrity of India. 2. The judge promises to perform duties without fear, favour, affection, or ill-will. 3. Oath is a constitutional prerequisite — a judge cannot function without it. KEY DOCTRINE: Constitutional oath — binds judges to the Constitution as the supreme law.
Clause (7) — Bar on Practice After Retirement
WHAT IT SAYS: 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. WHAT IT MEANS: 1. A retired SC judge is permanently barred from legal practice in India. 2. Prevents conflict of interest and preserves the dignity of the office. 3. Does not bar post-retirement commissions, tribunals, or arbitration (debated in CAD). 4. This restriction does NOT apply to HC judges (they can practice in courts other than the HC where they served). KEY DOCTRINE: Post-retirement bar — ensures judicial neutrality is maintained even after leaving office.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Sections 200-206 (Federal Court of India) Original provision: Established a Federal Court with similar appointment mechanism by the Crown and qualifications for judges. What India kept: Basic structure of a constitutional court with appointment by executive after consultation, fixed retirement age, and security of tenure. 2. United States Constitution — Article III, Section 1 (Judicial Power) Original provision: Vests judicial power in one Supreme Court; judges hold office during 'good behaviour' (life tenure); appointments by President with Senate confirmation. What India kept: Concept of a single apex court as guardian of the Constitution and judicial review; the 'distinguished jurist' category was inspired by U.S. practice of appointing professors like Justice Frankfurter. 3. United Kingdom — Act of Settlement, 1701 and Appellate Jurisdiction Act, 1876 Original provision: Judges removable only on address by both Houses of Parliament; Privy Council as final appellate court. What India kept: Removal of judges by parliamentary address; the structure of the impeachment process mirrors the British model. INDIA'S SPECIFIC ADAPTATIONS: 1. Fixed retirement age of 65 — Unlike U.S. life tenure, India chose mandatory retirement to ensure regular turnover and prevent gerontocracy. 2. Consultation, not confirmation — Unlike U.S. Senate confirmation, India chose executive-judicial 'consultation' to avoid politicisation of appointments. 3. Bar on post-retirement practice — Unlike the UK, India permanently bars retired SC judges from legal practice to prevent any temptation during tenure. 4. Distinguished jurist as third category — Original Indian innovation expanding the appointment pool beyond bench and bar. 5. Parliament can increase judge strength — Flexible provision allowing the court to grow with India's expanding caseload, unlike the original fixed-size U.S. Supreme Court.
Constituent Assembly Debate
DEBATED ON: 24 May 1949 (CAD Volume VIII, pages 229-267) Draft Article Number: Article 103 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Defended the balance between executive appointment and judicial consultation; moved amendment to fix initial strength at 7 judges (not minimum 7). 2. Mr. Tajamul Husain — Proposed adding 'Supreme' before 'Chief Justice' to distinguish from HC Chief Justices; rejected. 3. Prof. K.T. Shah — Proposed that the Council of States (Rajya Sabha) be consulted in appointments, citing U.S. Senate precedent; rejected. 4. Mr. Mahboob Ali Baig Sahib (Madras) — Proposed substituting 'consultation' with 'concurrence' of CJI for appointment of other judges; rejected. 5. Prof. Shibban Lal Saksena — Proposed reducing retirement age to 60 with discretionary extension to 65 by the President. 6. Mr. H.V. Kamath — Proposed the 'distinguished jurist' category to widen the pool and include legal scholars; accepted. 7. Shri K. Santhanam (Madras) — Moved that 'may be necessary' be changed to 'President may deem necessary' to clarify discretion; accepted. MAJOR DISAGREEMENTS: 1. Consultation vs. Concurrence — Several members wanted 'concurrence' of CJI to be mandatory; Ambedkar argued that 'consultation' sufficiently protected independence without giving a veto. 2. Role of Parliament in appointments — Some proposed Senate-style confirmation or joint session vote; rejected as it would politicise judicial appointments. 3. Retirement age — Proposals ranged from 60 to 68 years; 65 was retained as a balanced compromise. 4. Post-retirement bar (Clause 7) — Some argued it was too restrictive and made retired judges 'useless'; others said it was essential to prevent temptation during tenure. FINAL OUTCOME: Article 103, as amended by Ambedkar's and Santhanam's amendments and the 'distinguished jurist' addition, was added to the Constitution on 24 May 1949. AMBEDKAR'S KEY QUOTE: Argued that the Draft Article 'sufficiently ensured the independence of the judiciary, as neither the executive nor the legislature had absolute authority in the matter.'
Landmark Judgments
LANDMARK JUDGMENTS: 1. S.P. Gupta v. Union of India (1981) — First Judges Case: Held that 'consultation' does not mean 'concurrence'; executive has primacy in judicial appointments. (Later overruled) 2. Supreme Court Advocates-on-Record Association v. Union of India (1993) — Second Judges Case: Overruled S.P. Gupta; held that 'consultation' means 'concurrence'; CJI's opinion has primacy; established the Collegium System. 3. In re Special Reference No. 1 of 1998 (1998) — Third Judges Case: Expanded the Collegium to CJI + 4 senior-most SC judges; CJI's recommendation must reflect collegium's collective view. 4. Supreme Court Advocates-on-Record Association v. Union of India (2015) — Fourth Judges Case / NJAC Case: Struck down the 99th Constitutional Amendment and NJAC Act as violative of basic structure (judicial independence); restored the Collegium system. 5. Sub-Committee on Judicial Accountability v. Union of India (1991) — Upheld the two-tier removal process under Clauses (4) and (5); held that Article 124 is part of the basic structure; removal motions do not lapse on dissolution of Lok Sabha. 6. Kehar Singh v. Union of India (1989) — Emphasised that judicial appointments must preserve the independence of the judiciary. NOTABLE DISSENTS: 1. Justice J. Chelameswar in NJAC Case (2015) — Sole dissenter; held that the NJAC was constitutionally valid and that the Collegium system lacked transparency and accountability. SCHOLARS & JURISTS: 1. Granville Austin — Described the judiciary under Article 124 as the 'guardian of the Constitution' and the framers' most important institutional innovation. 2. H.M. Seervai — Argued that the original text of Article 124(2) gave primacy to the executive and that the Collegium system was a judicial rewrite of the Constitution.