All you need to know about the appointment of Supreme Court Judges

Written by : Bhargavi Kumari 

INTRODCUTION

The Supreme Court of India was inaugurated on 28th of January 1950, two days after India was declared a republic. It replaced the Federal Court of India which was established under the Government of India Act, 1935. However, its jurisdiction is greater than its predecessor in the sense that it replaced the Judicial Committee of Privy Council as the highest court of appeal in India. Chapter IV, Part 5 of the constitution deals with the provisions regarding union judiciary. 

At present, the Supreme Court consists of one chief justice and 33 puisne judges. Originally this sanctioned strength was 8 including the chief justice. 

To be qualified to be a judge of the Supreme court, a person must be a citizen of India and must have served as a judge of a high court (or high courts in succession) for 5 years or an advocate of a high court (or high courts in succession) for ten years or be a distinguished jurist in the opinion of the president.

To date, no judge of the Supreme Court has been appointed through the third method and only 9 supreme court judges have been appointed based on their service as an advocate for 10 years in the high court with the most recent appointment of Justice KV Vishwanathan. 

The president appoints the Chief Justice of India and the Judges of the Supreme Court under Article 124(2) of the Constitution. For the appointment of supreme court judges, the constitution obligates the president to consult with the chief justice and such other judges of the supreme court and high court as he deems necessary. The chief justice is to be appointed by the president after consultation with judges of the supreme court and high court as he deems necessary. 

Before 1973, the practice had been to appoint the seniormost judge of the supreme court as the chief justice of India. This convention was defied in 1973 when AN Ray was appointed as the Chief Justice by superseding 3 senior judges and later in 1977 when MU Beg was appointed as the chief justice instead of the then seniormost judge. This led to the creation of the collegium system of supreme court over the course of three cases to ensure the independence of judiciary and separation of power in the appointment of judges. These three judgements are collectively known as the three judges’ case. 

In SR Gupta vs Union of India, also known as the Judges Transfer Case, the court held that the word “consultation” meant mere exchange of views and does not necessitate concurrence thereby vesting the ultimate power in the hands of the central government. 

In Supreme Court Advocates on Record Association vs Union of India, 1993 (2nd Judges case) the court overruled its previous judgement and interpreted consultation as concurrence. In other words, it held that the advice tendered by the chief justice was binding on the president. In the event of conflicting opinions between judiciary and executive, the opinion of judiciary would take primacy. But it also held that the advice by the chief justice shall be given after consulting two of the seniormost judges of the supreme court.

Furthermore, it necessitated the appointment of the senior most judge of the supreme court as the chief justice of India. 

The third judge case (Special Reference Case 1 of 1998) was not a case but an opinion delivered by the supreme court regarding a presidential reference raised by the then president KR Narayana through article 143 to seek clarification on the collegium system as laid down in the second judge case. Here, the court opined that under article 124(2) of the constitution, the chief justice must consult a collegium of four seniormost judges of the supreme court and if even two of the judges give an adverse opinion, the recommendation shall not be forwarded. Collective decision by the “plurality of judges” was required as checks against arbitrariness and concentration of power in one person. It also required for the opinion of the judges to be in writing to avoid any ambiguity. 

However, the 99th constitutional amendment act of 2014 replaced the collegium system with the National Judicial Appointment Commission (NJAC) formed by NJAC Act,2014. The NJAC would be a six-member committee of the chief justice, two seniormost judges of supreme court, the union law minister and two eminent persons nominated by a committee of chief justice, prime minister, and leader of opposition. 

This amendment was struck down by the Supreme Court in Supreme Court Advocates On Record Association Vs Union Of India, 2015 (4th Judge case) as unconstitutional for altering the basic structure of constitution as it confers arbitrary power to executive thereby compromising with the independence of judiciary. It upheld the collegium system as before NJAC but also acknowledged its imperfections as a system of “judges appointing judges,” lack of transparency etc. It held that even though the collegium system comes with its own set of problems, a better alternative is yet to be found. 

CONCLUSION

The collegium system has evolved over the years through various judgements for the appointment of Supreme Court judges while also maintaining the independence of judiciary. While the broader criterions like age, qualifications and nationality are constitutionally mandated and leave no room for alteration, the finer parameters for the appointment are still unknown. This practically leads to bias and unfairness. Thus, a fairer and more open form of collegium system is necessary to ensure an effective exercise of its judicial duties.

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