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Constitution
Constitution
• The collegium system is a forum including the Chief Justice of India and four senior-most judges
of the SC, which recommends appointments and transfers of judges.
• Judges of the higher judiciary are appointed only through the collegium system, and the government
has a role only after names have been decided by the collegium.
• This system has evolved through judgments of the SC, and not by an Act of Parliament or by a
provision of the Constitution.
Appointment of SC judges
• The CJI and judges of the Supreme Court are appointed by the President under clause (2) of Article
124 of the Constitution.
• Whenever a vacancy is expected to arise in the office of a judge of the Supreme Court, the CJI will
initiate a proposal and forward his recommendation to the law minister to fill up the vacancy.
• The opinion of the CJI for appointment of a judge of the Supreme Court should be formed in
consultation with a collegium of the four senior-most judges of the apex court.
• The opinion of members of the collegium in respect of each of the recommendations as well as the
senior-most judge in the Supreme Court from the High Court from which a prospective candidate
comes, would be made in writing. The CJI must transmit his opinion as also the opinion of all
concerned to the government of India as part of record.
• After receipt of the final recommendation of the CJI, the law minister will put up the
recommendations to the Prime Minister, who will advise the President in the matter of appointment.
Appointment of HC judges
• The High Court stands at the head of a state’s judicial administration.
• Article 214 of the Indian Constitution provides for a High Court for each state. The Seventh
Constitutional Amendment Act of 1956 authorised the Parliament under Article 231 to establish a
common High Court for two or more states and a Union Territory.
• Articles 214 to 231 of the Constitution deals with the organisation, independence, jurisdiction,
powers, procedures and other issues related to the High Courts.
• The Chief Justice and judges of the High Courts are appointed by the President under Article 217(1)
of the Constitution.
• To be eligible for appointment as a HC judge one must be a citizen of India, have held a judicial
office in India for ten years or must have practised as an advocate of a High Court or two or more
such courts in succession for a similar period.
First Judges Case (S.P. Gupta vs Union of India) (1981)
• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial
appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12
years.
Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India) (1993)
• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in
consultation with the two senior-most judges in the SC.
Third Judges Case (1998)
• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI
and four of his senior-most colleagues.
Emergency
National Emergency
• Article 352 of the Constitution provides for the provision of National Emergency which can be
applied if any extraordinary situation arises that may threaten the security, peace, stability and
governance of the country.
• An emergency can be imposed in situation of War, External aggression; or Internal rebellion.
• Article 352 provides that if the President is ‘satisfied’ on the grounds that the security of India is
threatened due to outside aggression or armed rebellion, he can issue a proclamation to that effect
regarding the whole of India or a part thereof.
• In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial review of
determining the validity of the proclamation of emergency issued by the President under Article
352(1). The court’s powers are limited only to examining whether the limitations conferred by the
Constitution have been observed or not. It can check if the satisfaction of President is on valid
grounds or not. If the President is satisfied that grounds for national emergency exist but the same
is based on absurd, malafide or irrelevant grounds then it won’t be considered that the President is
‘satisfied’.
• Duration: If approved by both houses of Parliament then National Emergency can continue for 6
months and it can be renewed by approval of Parliament after every 6 months.
• Revocation: If the situation improves then the President can revoke the emergency through another
proclamation. Requisition for the meeting can be made by ten per cent or more members of the Lok
Sabha and in that meeting; it can disapprove or revoke the emergency by a simple majority.
Extension of Executive Powers of the Centre
• According to Article 353, the Union can use its executive power to the extent of giving directions
to the State relating to the manner in which the executive powers shall be exercised by the State.
• As per Article 353 (b), the Union Parliament can make laws relating to the matters in the State List.
• According to Article 354, the distribution of revenue between the Union and the State can be altered
by the Centre.
• As per Article 83(2), the normal life of the Lok Sabha may be extended by the President by a year
each time up to a period not exceeding 6 months after the proclamation ceases to operate.
State Emergency
• As per Article 356, if the President after receiving a report from the Governor of a State or otherwise
is satisfied that such a situation exists where the Government of a State cannot be carried in
accordance with the provisions of the Constitution, he may issue a Proclamation.
• Duration: When a Proclamation is issued under Article 356, it shall be first laid before each House
of the Parliament. Such Proclamation shall remain in operation for 2 months unless before the expiry
of the said period it has been approved by both Houses of the Parliament according to Article 356(3).
• Revocation: By a subsequent Proclamation, a proclamation of State Emergency can be revoked.
Difference between Articles 352 and 356
• Under Article 352, the State Legislature and Executive continue to function but the Centre gets the
concurrent powers of the legislation and administration in the matters of the State. Under Article
356, the executive, as well as legislative power, is vested in the Centre and the State Legislature is
dissolved.
• Under Article 352, the relationship between the Centre and all the States changes but in the case of
Article 356 the relationship between the Centre and the State in which President’s Rule is applied
undergo a change.
Doctrine of Pleasure
The pleasure doctrine is a concept derived from English common law.
Under it, the crown can dispense with the services of anyone in its employ at any time.
Article 310 of Indian Constitution: It says every person in the defence or civil service of the Union
holds office during the pleasure of the President, and every member of the civil service in the States
holds office during the pleasure of the Governor.
Article 311: It imposes restrictions on the removal of a civil servant; it provides for civil servants being
given a reasonable opportunity for a hearing on the charges against them.