Post Graduate Teaching Department of Law, Nagpur

Submitted By - Ojas Kamthikar

Group – D (Business Law)

Subject- Judicial Process and Rule of Law

Submitted to: Girish Kulkarni Sir.

Assignment Question Allotted – Explain the procedure of appointment and transfer of judges and
after the 2nd Judges Case (1993)

Appointment and transfer of judges beforeThree Judges Case

Appointment of Judges in the High Courts

Qualifications

There are certain qualifications which have to be fulfilled in order to appoint a person as a judge in the High
Courts. The qualifications regarding the appointment are provided in Article 217. According to the Article,

 The person appointed must be a citizen of India;

 The person appointed should have held a judicial office in the territoryof India for at least
ten years;
 The person appointed should have been an advocate in the High Courtfor at least ten years.

Procedure

Article 217 of the Indian Constitution provides the procedure regarding theappointment of judges in
the High Courts. According to this Article,
  The judges of the High Courts can be appointed only by the warrant of the President and his
seal;
 The appointment can be done only after consulting the Chief Justice of India and the Governor
of the State;
 The appointment of Judges other than the Chief Justice can be done afterconsulting the Chief
Justice of the High Court;
 The provisions under this article must be followed even while appointingthe Additional Judges
according to Article 224.
 The person can hold the office as a judge until he is sixty-two years old;
 The consultation must be very effective, that is all the necessaryinformation about the person
being recommended must be revealed andno information should be hidden in order to facilitate
the appointment;
 The Judges appointed must take an oath before the Governor of the State according to Article
219. The oath must be according to the form that is provided for the purpose in the Third
Schedule.

Salary for the Judges appointed

Article 221 of the Indian Constitution provides various provisions regarding the salaries of High Court
Judges. The salaries shall be determined by the Parliamentby law and until the provision on the behalf is
made, the salaries provided in theSecond schedule must be followed. The article also says that the judges
are entitled to receive pension and allowances which is decided by the Parliament andit varies from time to
time.

Procedure for appointment of additional and acting judges

The appointment of additional judges is governed by Article 224 of the Indian Constitution. The President
has the power to appoint additional judges. The StateGovernment should obtain the permission and sanction
of Central Government inorder to create a post for additional judges and for appointing additional judges.
Article 224 also deals with the appointment of acting judges. They are appointedfor a period of three months.
The members of the bar are not preferred for the appointment.
Appointment of Judges in Supreme Court:

Procedure

There are various procedures for the appointment of Judges in the Supreme Court. The appointment is
governed by various provisions in the Indian Constitution. Article 124 of the Indian Constitution deals with
the appointment ofChief Justice and Judges of the Supreme Court. The collegium system is still followed
for the appointment of the Judges. Article 124 of the Constitution says only seven judges can be appointed
in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary.
The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges
of the Supreme Court and also in certain cases other judges of theHigh Court. The Judges can hold office
until they attain 65 years of age. Article 127 of the Indian Constitution deals with the appointment of ad-hoc
judges in theSupreme Court.

Qualification

Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the
appointment. The person who satisfies all these necessaryqualifications is only recommended. They are:

 The recommended person must be a citizen of India;

 They should not be above 65 years of age;
 They must have been a judge of one or more High courts continuouslyfor five years;
 They must have been an advocate in the high court for at least ten years;
 The recommended person must be a distinguished jurist in the opinionof the President.

Salary

The salaries of the Supreme Court judges is determined according to Article125 of the Indian
Constitution. The salary provided to the Supreme Court judges
is high compared to the High Courts. The salary is determined by the Parliament by law and if provisions
are not made clear the salary mentioned in the second schedule must be provided.

Appointment of acting Chief Justice and Ad Hocjudges

Article 126 of the Indian Constitution deals with the appointment of acting ChiefJustice. The President can
appoint other judges of this court as acting Chief Justicewhen the office of Chief Justice is vacant or they are
unable to perform their duties due to various issues like health issues. Article 127 deals with the
appointment of Ad Hoc judges. According to this Article, Ad Hoc judges can be appointed in various
situations like when the quorum of the Judges of the Supreme Court are not available to hold or continue
any session of the Court, then it is the duty of the Chief Justice to appoint Ad hoc judges with the consent
of the President of India.

Transfer of Judges

Transfer of Judges in the High Court

Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The
same procedure is also followed even for the transferof Chief Justice. The President has the power to transfer
the Judges from one High Court to another. This transfer must be made only after consulting the ChiefJustice.
There is also a provision for providing a compensatory allowance to the Judges who are transferred in
addition to their salary.

Appointment and transfer of judges after Three Judges Case:

While the Collegium system finds no mention in the Constitution, it has evolved throughthe Supreme
Court’s own three judgments, known collectively as the Three Judges Cases.
In India, until 1993, the appointment of judges was done by the President inconsultation with the Chief
Justice and two other senior-most judges of the Supreme Court.

Since 1993, it is the Collegium system evolved by the Supreme Court thatdecides on appointments and
transfers of judges in the higher judiciary, though the nominal appointing authority is the President of
India.
Strictly speaking, one can say that the Collegium was the result of the differences between the executive
and the judiciary. While the Collegium system finds no mention in the Constitution of India, it has
evolved through theSupreme Court’s own three judgments, known collectively asthe Three Judges
Cases (1981, 1993 and 1998).
  The recommendations by the Collegium for the Supreme Court can be of two types: One, when
high court judges are to be elevated to the Supreme Court; and two, when senior lawyers are
directly appointed asSupreme Court judges.
 For appointments to the high courts, the Supreme Court Collegium consists of only 3 judges
– The Chief Justice of India and two senior-most judges.
 For appointments to the Supreme Court, the Collegium consists of fivejudges (right now, 6).
 Like the Supreme Court, the high courts, too, have a Collegium, headedby the chief justice of the
high court and two senior-most judges as members.
 The high court Collegium sends its judicial appointmentsrecommendation
only to the Supreme Court Collegium.

Second Judges Case, 1993

A Bench of the Supreme Court, led by CJI Ranjan Gogoi, has dismissed a bunch of petitions seeking
a review of the court’s judgment in the Second Judges Case in 1993, which led to the Collegium
system of appointment ofjudges.

What was the Second Judges Case of 1993?

In The Supreme Court Advocates-on-Record Association (SCARA) Vs Unionof India, 1993, a nine-
judge Constitution Bench overruled the decision in S PGupta, and devised a specific procedure called
‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
The Case accorded primacy to the CJI in matters of appointment and
transfers while also ruling that the term “consultation” would not diminish theprimary role of the CJI in
judicial appointments.

CJI’s role

The role of the CJI is primal in nature because this being a topic within thejudicial family, the executive
cannot have an equal say in the matter.

Here the word ‘consultation’ would shrink in a mini form.

Should the executive have an equal role and be in divergence of many aproposal, germs of
indiscipline would grow in the judiciary.

Ushering in the collegium system the recommendation should be made by theCJI in consultation with his
two seniormost colleagues, and that such recommendation should normally be given effect to by the
executive.

It added that although it was open to the executive to ask the collegium toreconsider the matter if it had an
objection to the name recommended.

If, on reconsideration, the collegium reiterated the recommendation, theexecutive was bound to
make the appointment.

Criticisms of the Judgement

Critics argue that the system is non-transparent since it does not involve anyofficial mechanism or
secretariat.

It is seen as a closed-door affair with no prescribed norms regarding eligibilitycriteria or even the
selection procedure.
There is no public knowledge of how and when a collegium meets, and how ittakes its decisions.

Lawyers too are usually in the dark on whether their names have beenconsidered for elevation
as a judge.

What efforts have been made to address these concerns?

The government of 1998-2003 had appointed the Justice M N VenkatachaliahCommission to opine

whether there was need to change the Collegium system.

The Commission favoured change, and prescribed a National Judicial Appointments Commission
(NJAC) consisting of the CJI and two seniormostjudges, the Law Minister, and an eminent person from
the public, to be chosen by the President in consultation with the CJI.

What exactly is the NJAC?

The Constitution (99th Amendment) Act, which established the NJAC and theNJAC Act, was passed by
Parliament in 2014 to set up a commission for appointing judges, replacing the Collegium system. This
would essentially increase the government's role in the appointment of judges.

The NDA 2 regime had NJAC as one of its priorities, and the constitutionalamendment and NJAC
Act were cleared swiftly.

In 2015, a Constitution Bench declared as unconstitutional the NJAC Bill.

Why was NJAC declared unconstitutional?

The NJAC faced significant legal challenges and was ultimately struck downas unconstitutional by the
Supreme Court of India in 2015. The court ruled that the NJAC violated the principle of judicial
independence and the basic
structure of the Constitution of India, and the old Collegium system wasreinstated.

The Bench sealed the fate of the proposed system with a 4:1 majority verdictthat held that judges’
appointments shall continue to be made by the collegium system in which the CJI will have “the last
word”.

Justice J Chelameswar wrote a dissenting verdict, criticising the collegium system by holding that
“proceedings of the collegium were absolutely opaqueand inaccessible both to public and history,
barring occasional leaks”.

The controversy over the transfer of the Chief Justice of the Madras HC to theMeghalaya HC has once
again brought to the fore a long-standing debate on the functioning of the ‘Collegium’ of judges.

On being questioned for the transfer as well as the lack of transparency, the Supreme Court has stated that
the Collegium indeed had cogent reasons andthat these could be revealed, if necessary.

What is Collegium System?

The Collegium of judges is the Indian Supreme Court’s invention.

It does not figure in the Constitution, which says judges of the Supreme Courtand High Courts are
appointed by the President and speaks of a process of consultation.

In effect, it is a system under which judges are appointed by an institutioncomprising judges.

After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made
subsequently to effect a mass transfer of HighCourt judges across the country.

Hence there was a perception that the independence of the judiciary wasunder threat. This resulted
in a series of cases over the years.

The Judges Cases:

The First Judges Case (1981) ruled that the “consultation” with the CJI in thematter of appointments
must be full and effective.

However, it rejected the idea that the CJI’s opinion, albeit carrying greatweight, should have
primacy.

The Second Judges Case (1993) introduced the Collegium system, holdingthat “consultation” really
meant “concurrence”.

It added that it was not the CJI’s individual opinion, but an institutional opinionformed in consultation
with the two senior-most judges in the Supreme Court.

On a Presidential Reference for its opinion, the Supreme Court, in the ThirdJudges Case (1998)
expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most
colleagues.

The procedure followed by the Collegium

Appointment of CJI

The President of India appoints the CJI and the other SC judges.

As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersessioncontroversy of the 1970s.

The Union Law Minister forwards the recommendation to the PM who, in turn,advises the President.

Other SC Judges

For other judges of the top court, the proposal is initiated by the CJI.

The CJI consults the rest of the Collegium members, as well as the senior- most judge of the court hailing
from the High Court to which the recommendedperson belongs.

The consultees must record their opinions in writing and it should form part ofthe file.

The Collegium sends the recommendation to the Law Minister, who forwardsit to the Prime Minister to
advise the President.

For High Courts

The CJs of High Courts is appointed as per the policy of having Chief Justicesfrom outside the respective
States. The Collegium takes the call on the elevation.

High Court judges are recommended by a Collegium comprising the CJI andtwo senior-most judges.

The proposal, however, is initiated by the Chief Justice of the High Courtconcerned in
consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governorto send the proposal to the
Union Law Minister.

Does the Collegium recommend transfers too?

Yes, the Collegium also recommends the transfer of Chief Justices and otherjudges.

Article 222 of the Constitution provides for the transfer of a judge from oneHigh Court to another.

When a CJ is transferred, a replacement must also be simultaneously foundfor the High Court concerned.
There can be an acting CJ in a High Court fornot more than a month.

In matters of transfers, the opinion of the CJI “is determinative”, and theconsent of the judge
concerned is not required.

However, the CJI should take into account the views of the CJ of the HighCourt concerned and the
views of one or more SC judges who are in a position to do so.

All transfers must be made in the public interest, that is, “for the betterment ofthe administration of
justice”.