Appointment of judges

 India works on three tiers of the Judicial system: The Supreme Court, the High Court and Subordinate
Courts.
 Article 124: Establishment and constitution of Supreme Court :
o 124 (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 33 other Judges.
o 124(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 SC and HC in the states as the president
may deem necessary for that 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:
 (a) a Judge may resign his office; by writing under his hand addressed to the President,

 (b) a Judge may be removed from his office in the manner provided in clause ( 4 )

According to Article 217 of the Constitution, Chief Justices of the High Courts are appointed by the
President in consultation with the Chief Justice of India (CJI) and the Governor of the State.

The Chief Justice of the High Court is appointed in accordance with the principle of appointing Chief
Justices from states other than their own.

Eligibility Criteria for Supreme Court Judge

Article 124 [3] : In order to be appointed as a judge in the Supreme Court of India, the person has to fit in
the following criteria:

 He/She is a citizen of India and

 has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
 has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
 is, in the opinion of the President, a distinguished jurist.

Removal of Judges From Supreme Court

The Constitution of India also provides a set of regulations for the removal of the Supreme Court judge. The
procedure for removal is too difficult.

Article 124(4) mentions those Removal regulations of the Supreme court judge as follows:

 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 same session for such removal on the ground of proved misbehaviour or incapacity.

Article 124(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 the previous Clause.
Article 124(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.
(This means that no one who has served as a Supreme Court judge may now practise law or
appear before any Indian court or government agency after retirement.)

 Procedure for Various Judicial Appointments:

o For 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
supersession controversy of the 1970s.
o For SC Judges:

 For other judges of the SC, 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 recommended
person belongs.
 The consultees must record their opinions in writing and
it should form part of the file.
 The Collegium sends the recommendation to the Law
Minister, who forwards it to the Prime Minister to advise
the President.
o For Chief Justice of High Courts:
  The Chief Justice of High Court is appointed as per the
policy of having Chief Justices from outside the
respective States.
 The Collegium takes the call on the elevation.
 High Court judges are recommended by a Collegium
comprising the CJI and two senior-most judges.
 The proposal, however, is initiated by the outgoing Chief
Justice of the High Court concerned in consultation with
two senior-most colleagues.
 The recommendation is sent to the Chief Minister, who
advises the Governor to send the proposal to the Union
Law Minister.
 Criticism of the Collegium System:

o Opaqueness and a lack of transparency.

o Scope for nepotism.
o Embroilment in public controversies.
o Overlooks several talented junior judges and advocates.
 Attempts to reform the Appointment System:

o The attempt made to replace it by a ‘National Judicial

Appointments Commission’ was struck down by the court in 2015
on the ground that it posed a threat to the independence of the
judiciary.
Related Constitutional Provisions

 Article 124(2) of the Indian Constitution provides that the Judges of the
Supreme Court are appointed by the President after consultation with such a
number of the Judges of the Supreme Court and of the High Courts in the
States as the President may deem necessary for the purpose.
 Article 217 of the Indian Constitution states that the Judge of a High Court
shall be appointed by the President consultation with the Chief Justice of
India, the Governor of the State, and, in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court.
Way Forward
 Filling up of vacancies is a continuous and collaborative process involving the
executive and the judiciary, and there cannot be a time frame for
it. However, it is time to think of a permanent, independent body to
institutionalize the process with adequate safeguards to preserve the
judiciary’s independence guaranteeing judicial primacy but not judicial
exclusivity.

o It should ensure independence, reflect diversity, demonstrate

professional competence and integrity.
 Instead of selecting the number of judges required against a certain number of
vacancies, the collegium must provide a panel of possible names to the
President to appoint in order of preference and other valid criteria.
Source:IE

Composition of the Collegium system

1. A Supreme Court collegium comprises four senior-most judges of the
Supreme Court and it is headed by the Chief Justice of India.
2. A High Court collegium comprises two senior-most judges and is headed by
the Chief Justice of that High Court.
3. The names that are recommended by the High Court collegium are first
approved by the Chief Justice of India and the Supreme Court
collegium, and after that, it reaches the government.

Procedure for appointing Supreme Court judges

 The Chief Justice of India (CJI) initiates the process of appointment of Supreme
Court judges. The CJI deliberates with the collegium of the Supreme Court and
also consults with the senior judges of the court to which the recommended
member belongs.
 A file is created in which all the members with whom the consultation takes
place have to write their opinion regarding the appointment of the
recommended person,
  After the initial two processes, the recommendation made by the collegium is
sent to the Law Minister, who in turn sends it to the Prime Minister for advising
the President.

Procedure for appointing Chief Justice of High Courts

 When it comes to the appointment of Chief Justices, there is a policy that a
Chief Justice be appointed from outside of his or her respective state.
 The Collegium set up for the High Court has the final say in the appointment of
the Chief Justice.

Procedure for appointing judges of the High Courts

 The outgoing Chief Justice of the respective court initiates the process of
appointment of judges in deliberation with the two senior-most judges of that
court.
 After consultation and deliberation, the collegium of the High Court recommends
the name of the high court judges.
 The recommendation made by the collegium is sent to the Chief Minister, who
then advises the Governor, and ultimately the recommendation reaches the
Union Law Minister.

Evolution of the collegium system

The formation of the collegium system owes its origin to the three landmark cases often
referred to as the “three judges case.”

S.P. Gupta v. Union of India, (1981)

Prior to the landmark case (First Judges Case), judges were appointed by the President
of India but he needed to consult with the Chief Justice of India and other judges. This
case empowered the executive in the judges’ appointment process. The key observation
made in this case was that “consultation” should not be construed as “concurrence,”
which meant that the President is not bound to follow the opinion of the Chief Justice of
India in the judges’ appointment. It was also observed in this case that the transfer of
judges can also be refused due to “cogent reasons.”
Why was the NJAC Act struck down
The five-judge bench comprising Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh
Kumar Goel, Justice Kurian Joseph, and Justice Jasti Chelameshwar struck down the
NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio. The NJAC Act
was termed unconstitutional and was struck down, citing it as having affected the
independence of the judiciary. The NJAC Act was repealed by a five-judge bench,
famously known as the Fourth Judges Case, 2015. The five-judge bench decided that
the collegium system would still be operative in the appointment of judges, although
they pointed out that the collegium system is not accurate and the process of ‘judges
appointing judges’ should be examined.

Every judge gave out their individual ratio decidendi, with each of them explaining their
individual reasoning behind coming to the conclusion. The crux of each of their ratios was
that the judiciary should be kept independent of the legislature and executive and that
they should not indulge in the process of appointing judges. The Hon. Justice J.S. Khehar
stated that “organic development of civil society has not as yet sufficiently evolved.”
While other judges supported Justice Khehar’s reasoning, Justice Chelameswar held a
different line of reasoning stating that “the judiciary cannot be the only constitutional
organ capable of protecting the liberties of the people.”

Justice Khehar raised crucial questions and directly attacked the merits of the NJAC Act.
Justice Khehar attacked the NJAC Act on following points:

 The involvement of the legislature in the appointment of judges might lead to

the creation of a culture of ‘reciprocity.’ By reciprocity, Justice Khehar meant
that judges might have the feeling of having to pay back the political executive
as a consideration for their appointment to the post of judge and that it would
lead to an environment where the appointment of judges might be impacted due
to political considerations.
 Justice Khehar raised another strong point that the future judges appointed
under NJAC cannot be expected to be independent-minded if the Union Law
Minister is the member of the commission responsible for their appointment.
Further reinstating his point, Justice Khehar pointed out by giving examples that
often there are cases that come to the judiciary where there is the involvement
of some political figures such as the Chief Minister, Prime Minister, or any other
minister from the opposition as well; in such scenarios, the presence of the
Minister of Law and Justice as an ex-officio member of NJAC is highly
questionable.
 The NJAC Act would compromise the principle of independence of the judiciary
guaranteed under the existing collegium system. The basic structure of the
Constitution enshrines that the judiciary is solely responsible for the
appointment of judges.
  The NJAC Act provides arbitrary power to the Chief Justice of India, Prime
Minister and the leader of the Lok Sabha to appoint two eminent personalities
into the NJAC body.
 Serious questions were raised regarding the applicability of veto power by the
two eminent personalities. Justice Khehar and Lokur opined that “these two
persons could together strike out an otherwise valid appointment.” They raised
doubts regarding the procedure of removal of these two people in case they are
found to be abusing their power.
Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel and Justice Kurian
Joseph found the NJAC Act to be unconstitutional, Justice Jasti Chelameshwar was
extremely vocal in supporting the Act. He found the NJAC Act absolutely constitutional
and meritorious. He deemed it to be a perfect substitution for the existing collegium
system. In a strongly worded dissent order, Justice Chelameshwar explained the benefits
of the NJAC Act.

 Justice Chelameshwar pointed out that transparency is an extremely vital factor

in constitutional governance. He reasoned that it becomes all the more
important in the process of appointment. Justice Chelameshwar praised the
NJAC Act for involving a smooth and transparent process for the appointment of
judges.
 Collegium system’s opaqueness was blatantly expressed where he expressed
that the proceedings of the collegium are inaccessible to the public and,
therefore, it lacks transparency.
 He supported Advocate General Mukul Rohtagi’s argument that the exclusion of
checks and balances principle leads to the destruction of the basic structure of
the Constitution.
 Justice Chelameshwar maintained that the exclusion of the role of the
government in appointing the judges is unfair because it disturbs the checks and
balances principle. He further added that in a democratic setup, the executive
cannot be completely excluded.
 In the dissent order, an example of the United States of America was given,
where the head of the Executive is conferred with the power to appoint the
judges.
 Justice Chelameshwar also supported the inclusion of the Law Minister in the
commission, reasoning that the executive with a vast amount of administrative
machinery is capable of making enormous and valuable contributions to the
selection process.

Issues with the current collegium system

NJAC was struck down citing it to be unconstitutional and void, but that does not mean
that the existing system is flawless. Even while striking down NJAC, the bench held that
the system of “judges appointing judges” is not accurate and needs to be reconsidered.
It has been 29 years since the establishment of the collegium system and a better
alternative is yet to be found. The main issues pertaining to the collegium system are:

 The collegium system does not provide any guidelines or criteria for the
appointment of the Supreme Court judges and it increases the ambit of
favouritism.
 In the collegium system, there are no criteria for testing the candidate or for
doing a background check to establish the credibility of the candidate. The
absence of an administrative body is also a reason for worry because it means
that the members of the collegium system are not answerable for the selection
of any of the judges.
 The ‘Second Judges Case’ established the supremacy of the judiciary over the
executive. This system disturbs the principle of check and balance. The check
and balance principle is necessary because it ensures that no organ of
democracy is exercising its power in an excessive manner.
 NJAC was struck down for its unconstitutionality, but a closer look at the
collegium system tells us that even though the collegium system is not
mentioned anywhere in the Constitution, rather it has evolved over a period of
time from different landmark cases.
 The collegium system lacks transparency.
 Nepotism has been often witnessed in the judiciary due to a lack of criteria for
the appointment of judges. Nepotism leads to mediocrity due to biases in the
judicial setup.