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Subject RC GK & CA Legal CR Quant

Topper’s Score 18.75 23.25 21.25 17.5 9

INTRODUCTION

The Constitution of India specifies the method by which judges of India's Supreme Court
and High Courts are recruited and appointed to their posts. This procedure applies to both
the Supreme Court and the High Courts. This contains India's highest court's Chief Justice.
After consulting with the Chief Justice of India and as many other members of the
Supreme Court and High Court as he deems necessary, the Constitution of India states
that the President of India is the one who is responsible for making these nominations.

However, the President must do so only after complying with the constitutional mandate
to do so. The cases that were heard by the first, second, and third judges are referred to
together as the "three judges cases." The Supreme Court's definitive rulings in these
important instances served as the impetus for the creation of the collegium system, which
was subsequently given its name. The procedure that is used to choose judges is laid out
in great detail in Article 124/217 of the Indian Constitution.

According to this provision, the President of India (i.e. the Central Government) is the one
who is responsible for making these appointments, and in order to fulfil this responsibility,
he or she is required to do so after consulting with the judges of the Supreme Court and
of any High Courts in the States that the President "may deem necessary." On the other
hand, it is made clearly clear that article 74 of the constitution mandates that the President
is expected to carry out his responsibilities in a manner that is consistent with the
recommendations made by the Council of Ministers. A contentious debate has arisen in
relation to the appointment of judges for the Supreme Court and the High Court. The
phrase "consultation," which can be found in Article 124/ 217, as well as the Executive
authority of the Central Government, which can be found in Article 74, have both
contributed to this debate.1

As a result of the discussion that was held about this matter, the Supreme Court came to
the conclusion that it would use the collegium technique in three instances that are often
known as "three judges cases." The objective of this study is to investigate the ways in
which the process of appointing judges has evolved over the course of the years, as well
as the ways in which the Judicial Branch has responded to the "controversy" that was
mentioned earlier, and how the perspective of the Executive Branch has changed. This
article also defines, with the help of rulings in the case involving three judges, what
constitutes the collegium in the nomination of judges for both the High Court and the
Supreme Court.

ANALYSIS

TYPES OF APPOINTMENT:
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Subject RC GK & CA Legal CR Quant

Topper’s Score 18.75 23.25 21.25 17.5 9

Systems of judicial appointments come in four basic configurations:

1. Appointment by political institutions- Mechanisms for political appointment may

take many different forms and can be derived from a large variety of different
paradigms. In most cases, appointments to the Supreme Court or the
Constitutional Court are made using either a "representative" method or a
"cooperative" approach. In certain arrangements, all appointments are made by a
single body, such as the legislature or the president.

In a nutshell, political appointment systems are weighted more heavily towards

responsibility than independence. They run the danger of being politicised, but they
do have the advantage of guaranteeing political backing for the justices. In
conclusion, it seems that the number of political players who are participating in
the appointment process contributes, under these models, to an increase in the
degree to which the court is representative of the population. 2

When a single organisation has a monopoly on a function, as was historically the

case in the United Kingdom with the executive branch, diversity is negatively
impacted. On the other hand, requirements of a supermajority and cooperative
systems involving many institutions have a tendency to drive towards moderation
and greater diversity, but they may also result in deadlock and make nomination
processes more time consuming.

2. Appointment by the judiciary itself- In certain nations that follow the history of
common law, the judicial system has essentially become one of self-appointment.

For instance, in India, the upper levels of the judicial system are selected by the
President after "consulting" with the Supreme Court; yet, in fact, the judicial system
does a significant amount of its own appointment. There are various systems of
judicial self-appointment, such as those in which judicial councils (see below) are
completely made up of judges. This kind of organisation is known as the Iraqi Higher
Judicial Council. Japan's judicial system is another example of a system in which the
majority of judges are appointed by themselves. The members of the Supreme
Court are selected via a political process; however, the Secretariat of the Supreme
Court has complete authority over the selection of lower-level judges as well as
their training, advancement, and disciplinary actions.

This combination has been questioned by certain individuals on the grounds that it
enables political control over the whole of the judicial system via the Supreme
Court. Also, individual judges have a strong motive to comply, and as a result, they
 Mock Res

Subject RC GK & CA Legal CR Quant

Topper’s Score 18.75 23.25 21.25 17.5 9

have less independence as compared to higher level judges. In point of fact, this
may be a characteristic that is common to all systems of judicial self-appointment.

It is reasonable to state that the use of self-appointment processes in the judicial

branch is becoming less common. It is quite clear that they provide the highest
possible level of independence for the whole judicial system. Yet, as seen by the
criticisms levelled at the Japanese judicial system discussed above, individual judges
in Japan can have less independence. However, there is a general consensus that
the system offers very little accountability. A significant portion of these judicial
systems have gotten deeply engaged in political activity, often in ways that might
call into question their own legitimacy. 3