Appointment of Judges of Supreme Court


Appointment of judges:

Article-124 deals with the establishment and constitution of Supreme Court. It deals with the appointment of chief justice and  judges of supreme court. Every judge of the supreme court shall be appointed by the president by warrant under his /her hand and seal after consultation with such of the judges of the supreme court and of  the high court in the states as president may deem necessary for the purpose and shall hold office until he attains the age of 65 years.

Eligibility of supreme court judges:

  • He should be a citizen of India.
  • He should not exceed 65 years of age.

Qualifications for Supreme Court judges:

  • He has been practicing as an advocate before any high court or two (2) or more such courts for at least ten (10) years
  • He has been served as judge of any High Court for minimum of  five (5) years or two or more such courts in succession.
  • He must be a distinguished jurist in the opinion of president.
  • He has been contributed greatly to the legal field though not as a practicing advocate.

Collegium system:

The collegium system of the supreme court deals with the appointment and transfer of the judges. The three famous cases ensured the judicial independence of supreme court and ensures that there won’t be any interference of any branch of the executive and legislature in the appointment and transfer of judges.

Establishment of collegium system:

Originally, the collegium system was not practiced and it came into effect only after 1993. Before 1993, though it was not mentioned in the constitution of India, the appointment and transfer of High Court/ Supreme Court judges was under the control of president and it was recognized by the cabinet ministers and CJI ( chief justice of India).

But in 1973, Justice Ajith Nag Ray was appointed has the 14th Chief Justice of India and his appointment was opposed by all the members, because before him there were 3 senior most judges who were supposed to be appointed as Chief Justice of India. The government said that “ the president has the supreme power to appoint the High Court / Supreme Court judges”.  In case of any conflict of opinion between Chief Justice India and president, the decision of president is final.

Three Judges Case:

  1. P. Gupta Vs Union of India ( Judges transfer case) , 1981 – In this case, the appointment and transfer of judges were recommended by the cabinet ministers to the president and they wanted to disclose the recommendations made by them. The Supreme Court held that, the conversation between them was protected by the constitution and so there is no necessity to disclose the facts. In case of any conflict of opinion between Chief Justice of India and president, the president is not bound to the opinion of Chief Justice of India.
  2. SC Advocates on record association Vs union of India, 1993– this case over ruled the decision of judges transfer case. The Supreme Court said that the appointment and transfer of judges would be taken under the control of  3 members panel of judges called collegium. It consists of CJI(chief justice of India) and 2 senior most judges and the president is bound to the decision of CJI.  It also said that the judicial review will be made to protect the Independence of judiciary and for the appointment of judges the opinion of SC ( supreme court)  judges should be asked.
  3. In Re special Reference 1 of 1998 ( the supreme court decided under advisory jurisdiction) – inthis case, the president raised a question that whether the formation of collegium with regard to the appointment of judges was correct or incorrect?. The SC (supreme court) under article 143 answered to the question stating that the appointment and transfer of judges would be done by 5 members panel consisting of CJI (chief justice of India) and 4 senior most judges thereafter.

Amendment :

99th Amendment Act was made in 2014 based on the report of Justice Venkatachellaih commission. Three new provisions were added to the constitution regarding appointment of judges. They are Article 124A, 124b, and 124C.

National Judicial Appointments Commission:

Article 124A-says that there should be a National Judicial Appointments Commission consisting of CJI( chief justice of India), 2 senior most judges of Supreme court, chairperson, etc. and the proceedings of the national judicial appointments commission shall questioned or invalidated.

Article 124B-deals with the functions of commission. Accordingly, They recommend the appointment and transfer of chief justice, judges of supreme court, chief justice of high courts and other judges of high court to the president of India and to check ability of recommended persons.

However , it was not efficient in its functions and it was declared as unconstitutional since it affects the Independence of Judiciary. The Supreme court then took the control of appointment and transfer of judges and moreover it also published MOP ( memorandum of procedure) to show the transparency and procedures followed in the appointment of Judges.

Currently ,

Our collegium consists of 5 members panel and they are called as the judges of higher judiciary. They are responsible for the appointment and transfer of chief justice and other judges of High court or supreme court.

Article 124C- deals with the power of parliament to make law. Here the parliament by law can regulate the procedure for the appointment of chief justice of India and other judges of supreme court and high court. They can empower the commission to lay down the procedures for the selection for appointment and transfer of judges if seems to be necessary by it.

Appointment of acting chief justice:

Article 126 deals with the appointment of acting judges. When the office of chief justice of India is vacant or in his absence or if he is unable to perform his duties, the acting chief justice(one of the other judges of the court) i.e. senior most judge shall be appointed by president to discharge the duties of chief justice of India. The vacancy in the office of chief justice is filled at the time of vacancy by the president.

Article 127 deals with the appointment of ad hoc, judges by the National Judicial Appointments Commission on the reference of chief justice of India and after consultation with the chief justice of the high court.

Author: sathiya v,
Dr.Ambedkar Law university, chennai

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