Appointment of Judges

  • The Constituent Assembly adopted a consultative process of appointing judges to ensure that judges remain insulated from political influence.
  • It avoided legislative interference and also the undemocratic provision of a veto to the Chief Justice.
  • Instead, it vested in the President the power to both make appointments and transfer judges between high courts.
  • The President (to act on the advice of the council of ministers) was however required to consult certain authorities such as the CJI or chief justice of the high court appropriately.
  • ‘Consultation’ – The Supreme Court earlier ruled that the word “consultation” could not be interpreted to mean “concurrence”.
  • Accordingly, the CJI’s opinion was not binding on the executive.
  • Nevertheless, the executive could depart from the opinion only in exceptional circumstances and any such decision could be subject to judicial review.
  • The system was thus fairly balanced and in the First Judges Case, 1981 the court once again endorsed this interpretation.
  • Second Judges Case – In the famous Second Judges Case, 1993 the court, however, overruled its earlier decisions.
  • It now held that “consultation” meant “concurrence”, and that the CJI’s view enjoys primacy.
  • This is with the rationale that CJI could be best equipped to know and assess the “worth” of candidates.
  • But, the CJI was to formulate the opinion only through a body of senior judges that the court described as the ‘collegium’.
  • In the Third Judges Case, 1998 the court clarified that the collegium would comprise CJI and four senior-most colleagues, in appointments to the Supreme Court.
  • And, the CJI and two senior-most colleagues in the case of appointments to the high courts.
  • Additionally, for HCs, the collegium would consult other senior judges in the SC who had previously served in the HC concerned.
  • On whether these views of the consultee-judges are binding on the collegium or not, the judgments are silent.
  • NJAC – The government, through 99th constitutional amendment, sought to replace the collegium with the National Judicial Appointments Commission. The Supreme Court, however, struck NJAC down.
  • The court’s rationale was that the NJAC law gave politicians an equal say in judicial appointments to constitutional courts.
  • In what might now be called the Fourth Judges Case (2015), the court upheld the primacy of the collegium.
  • More importantly, it declared collegium as part of the Constitution’s basic structure.
  • And so its power could not be removed even through a constitutional amendment.
  • But given the criticisms against the system, the judgment promised to consider appropriate measures to improve the collegium system.