The Constitution of India
Article 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 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 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 - 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.
Why this exists
The framers wanted an independent, apex judicial body to interpret the Constitution, settle disputes between governments, and protect fundamental rights. To keep the judiciary independent, they built in safeguards: judges are appointed through a process involving consultation (not political discretion alone), they have fixed tenure till a set age, they can be removed only through a difficult parliamentary process, and once retired, they cannot practise law again—all steps meant to insulate judges from political pressure and post-retirement conflicts of interest.
How courts read it
The word 'consultation' in clause (2) has been heavily litigated. In S.P. Gupta v. Union of India (1981, the 'First Judges Case'), the Supreme Court held that the President was not bound by the Chief Justice's advice—consultation did not mean concurrence, giving the executive more say. This was reversed in Supreme Court Advocates-on-Record Association v. Union of India (1993, 'Second Judges Case'), which held that the Chief Justice's opinion, formed with senior judges, was effectively binding—birthing the 'collegium' system. In the 1998 'Third Judges Case' (Presidential Reference), the Supreme Court further refined the collegium's composition and consultation process. In 2015, in Supreme Court Advocates-on-Record Association v. Union of India, the Court struck down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act as unconstitutional, holding they threatened judicial independence, and restored the collegium system as the operative mechanism under Article 124.
Common misconceptions
- Myth: The President alone decides who becomes a Supreme Court judge.
Fact: Since the 1993 and 1998 judgments, the Supreme Court has held that the recommendation of the Chief Justice of India (via the collegium of senior judges) is effectively binding, and the President's role is largely formal. - Myth: Parliament can remove a Supreme Court judge by a simple majority vote.
Fact: Clause (4) requires a much higher bar: a majority of the total membership of each House and two-thirds of members present and voting, in the same session, on proven grounds of misbehaviour or incapacity. - Myth: A retired Supreme Court judge can go back to practising law in a lower court.
Fact: Clause (7) permanently bars any former Supreme Court judge from pleading or acting as a lawyer in any Indian court or before any authority.