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ARTICLE 124: ESTABLISHMENT OF SUPREME COURT AND CONSTITUTION OF INDIA

Abstract

India is a Federalism Country in which there is a division of power between Central and State Government, which is determined by the Constitution of India (Supreme Law of the Land). In order to settle down the dispute arise between Central and State Government. The Supreme Court is such an adjudicator, independent and impartial body of the country which have a power of Judicial review can manage and take decision on all these issues.

Introduction: Supreme Court

Chapter IV under Part V of the constitution (Union) deals with the The Union Judiciary. The Guardian of the constitution of India is Supreme Court which provides many principles as well as Fundamental Rights for peacefully running of the democratic country, it is also known as Senior Constitution Court, the Chief Justice of India is the head of Supreme Court and the court consist of Maximum 34 Judges. The Supreme Court of India also safeguards the Fundamental Rights of the Citizen of India.

Article 124 Clauses

(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 after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
 
     Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
 
Provided further 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.
 
(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.In this clause “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.
 
Explanation IIIn 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 – thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
 
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour 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.

Composition of the Supreme Court

The Judicial System of India is mainly consisting of 3 types of Courts:

1. Supreme Court

2. High Court

3. Subordinates Court


Article 124 deals with Establishment of Supreme Court and Constitution of India. The Supreme Court of India consists of Chief Justice of India and other Judges.
Article 124 A was incorporated in the constitution, under which the National Judiciary Appointments Commission (NJAC) replaced the collegium system for the appointment of judges as mandated in the existing pre-amended constitution by a new system.


The NJAC consists of the following persons:


1.Chief Justice of India (chairperson)

2.Two senior-most Supreme Court judges

3.The Union Minister of Law and Justice

4.Two eminent persons nominated by a committee consisting of CJI, Prime minister of India and the Leader of the Opposition.

Appointment of Supreme Court

The Judges along with Chief Justice are being appointed by the President of India. Article 124(1) there shall be a Supreme Court of India, Article 124(2) deals with the Appointment of Chief Justice and other Judges of Supreme Court. President would always consult to Chief Justice for appointing the other Judges of Supreme Court. But in appointing the Chief Justice, he is not bound to consult with anyone. The Chief Justice is being appointed as the majority held for the office of the CJI should be made on the basis of seniority.
In 2014, according to new amendment 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. After this amendment, no consultation is required by the President with the Judges of Supreme Court and High Court.

Qualifications for Supreme Court Judge

1.He should be the citizen of the India.

2.He should have the experiencing of serving as a Judge of High Court for a minimum period of 5 years.

3.He should be an advocate of High Court for at least 10 years.

4.He should be considered by the President as a distinctive Jurist.

Powers of Supreme Court

1.Power to Punish with simple imprisonment of 6months or fine up to 2000rs.

2.According to Constitution, Supreme Court examine the Legislative Enactments and Executive Orders.

3.Deciding the Authority regarding Election of President and Vice President.

4.Enquiring Authority in Code of Conduct and Behaviour of Public Works or UPSC members.

5.Appointing ad hoc Judges.

Removal of Supreme Court Judges

A judge of Supreme Court can be removed only from the office by the President of India on the basis of a resolution passed by both the Houses of Parliament (Lok Sabha and Rajya Sabha) with a majority of the total membership and a majority of not less than two-thirds of the members present and voting in each House, on the grounds of proved misbehaviour or incapacity of the judge in question.
Hence, a democratic country like India needs a judiciary because democratic values tend to lose their prominence without proper checks and balances.

Reference

1.Dr. J.N. PANDEY- Constitutional Law of India- Chapter22- The Union Judiciary- The Supreme Court (Article 124-147)

2.Article- indiankanoon.org- Article 124 in The Constitution Of India 1949
https://indiankanoon.org/doc/1164880/

3.Article 124- Constitution of India: Establishment and Constitution of Supreme Court
https://www.latestlaws.com/bare-acts/central-acts-rules/coi-article-124-establishment-and-constitution-of-supreme-court/

Author :

Ritik Agrawal (Institute of Law, Jiwaji University)