UNION JUDICIARY

APPOINTMENT OF JUDGES (ART 124)

 According to Art. 124(2), the Judges of the Supreme Court are appointed by the
President. While appointing the Chief Justice, the President has consultation with
such of the Judges of the Supreme Court and the High Courts as he may deem
necessary. [Acc. to older provision before 99th amendment]

 Before 1993- the President’s power to appoint the Supreme Court Judges was purely
of a formal nature. The final power to appoint Supreme Court Judges rested with the
Executive and the views expressed by the Chief Justice were not regarded as binding
on the Executive.

 In 1958, the Law Commission criticised this practice on the ground that a Chief
Justice should not only be an able and experienced Judge but also a competent
administrator and, therefore, succession to the office should not be regulated by mere
seniority.

 In 1973, the Government suddenly departed from this practice and appointed as Chief
Justice a Judge [Justice A.N. RAY] who was fourth in the order of seniority. Thus,
three senior Judges were by-passed, who then resigned from the Court in protest.

 Again in 1976, the Government appointed Justice BEG as the Chief Justice by-
passing Justice KHANNA who was senior to him at the time.

 After 1993- The Constitution did not lay down a very definitive procedure for
appointment. [Art. 124(2)]. It was not clear from this provision as to whose opinion
was finally to prevail in case of difference of opinion among the concerned persons.

 In 1991, in Subhash Sharma v. Union of India, a three Judge Bench of the Supreme
Court expressed the view that in case of difference of opinion CJs opinion would
prevail.

EVOLUTION OF THE SYSTEM OF APPOINTMENT

 S.P. Gupta v. Union of India AIR 1982 SC 149 (First judges case) [7 judges bench]
Supreme Court held that consultation in the process of appointing judges does not require
concurrence, and instead only involves the exchange of views.

 Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (Second

Judge Case)
In the matter of appointment of a Supreme Court Judge, the primary aim ought to be to
reach an agreed decision taking into account the views of all the consultees giving the
 greatest weight to the opinion of the Chief Justice. When decision is reached by consensus,
no question of primacy arises. In case of conflict CJI’s opinion should be given primacy.
This case introduced collegium system of appointment of judges. The Court held that there
should be a collegium consisting of Chief Justice and two other senior most judges of the
Supreme Court for making proposal and appointment of judges.

 In re: Special Reference, AIR 1999 SC 1

A Presidential reference was issued in the year 1998 by the then President K.R. Narayanan
regarding the word “consultation” used in the Constitution. The debate was whether the
consultation of the CJI was sufficient or was there a need for consulting other judges as
well.
A nine-Judge bench of the Supreme Court delivered a unanimous opinion and reaffirmed
its verdict rendered in second Judges case (1993). The only thing that this reference
introduced from the Second Judges case was to increase the number of the judges in the
collegium. The Chief Justice of India ought to consult four senior-most Judges of the
Supreme Court.

INTRODUCTION OF NJAC (Art 124 A)

In its 121st report issued in 1987, the Law Commission has advocated the setting up of a
Judicial Commission. But the Law Commission did not work out its composition and function.
Finally, the NJAC was proposed via the National Judicial Appointments Commission Bill,
2014 by the then Minister of Law and Justice, Ravi Shankar Prasad. The bill was passed by
both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent. The
commission was established by the 99th Constitutional Amendment Act, 2014.

 Supreme Court Advocates-on-record Association & Anr. vs. Union of India

2015 (fourth judges case)
The Court by a majority of 4:1 struck down the 99th Amendment and consequently the NJAC
Act as unconstitutional and void. The majority including Justices Khehar, Lokur, Goel and
Joseph, held that the involvement of the executive in the appointment of judges impinged
upon the primacy and supremacy of the judiciary, and violated the principle of separation of
powers between the executive and judiciary which formed part of the basic structure of the
Constitution.