become IAS

Appointment of Judges

How did this come into being?

1. ‘1st Judges Case’ (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, the CJI’s opinion should have primacy.

2. 2nd Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court. 
3. 3rd Judges Case (1998): SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure followed by the Collegium:

1. The President of India appoints the CJI and the other SC judges.
2. For other judges of the top court, the proposal is initiated by the CJI.
3. 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.
4. The consultees must record their opinions in writing and it should form part of the file.
5. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
6. The Chief Justice of High Courts is appointed as per the policy of having Chief Justices from outside the respective States.
7. The Collegium takes the call on the elevation.

How Supreme Court chooses the Chief Justice of India?

Context: Chief Justice of India Ranjan Gogoi has recommended Justice Sharad Arvind Bobde as his successor and the 47th Chief Justice of India in keeping with convention and the seniority norm.

How it works?

The CJI is traditionally appointed by the outgoing CJI on the day of his (or her) retirement.

By convention, the outgoing Chief Justice of India selects the most senior then-sitting Supreme Court judge.

Seniority at the apex court is determined not by age, but by:

1. The date a judge was appointed to the Supreme Court.
2. If two judges are elevated to the Supreme Court on the same day:
3. The one who was sworn in first as a judge would trump another.
4. If both were sworn in as judges on the same day, the one with more years of high court service would ‘win’ in the seniority stakes.
5. An appointment from the bench would ‘trump’ in seniority an appointee from the bar.

Is it a part of the Constitution?

• The Constitution of India does not have any provision for criteria and procedure for appointing the CJI. 
• Article 124(1) of the Indian Constitution says there “shall be a Supreme Court of India consisting of a CJI”.
• The closest mention is in Article 126, which deals with the appointment of an acting CJI.
• In the absence of a constitutional provision, the procedure relies on custom and convention.

What is the procedure?

The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary:

1. The procedure is initiated by the Law Minister seeking the recommendation of the outgoing CJI at the ‘appropriate time’, which is near to the date of retirement of the incumbent CJI.
2. The CJI sends his recommendation to the Law Ministry; and in the case of any qualms, the CJI can consult the collegium regarding the fitness of an SC judge to be elevated to the post.
3. After receiving recommendation from the CJI, the law minister forwards it to the Prime Minister who then advises the President on the same.
4. The President administers the oath of office to the new CJI.
5. government has no say in the appointment of the CJI - the government cannot send the recommendation of the CJI (or the collegium) back to them for reconsideration; while in appointment of SC judges, the government can do so.

Appointment of CJI for High Courts:

1. High Court judges are recommended by a Collegium comprising the CJI and 2 senior-most judges.
2. The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
3. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Who appoints judges to the SC?

• In exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the appointments are made by the President of India.
• The names are recommended by the Collegium.

What is the collegium system of appointment of judges?

• The Collegium of judges does not figure in the Constitution. It is the Supreme Court’s invention.
• Constitution says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
• Therefore, Collegium is a system under which judges are appointed by an institution comprising judges.
• Collegium also recommends the transfer of Chief Justices and other judges. 

• The collegium system was commissioned by two judgments of the Supreme Court in 1990s. It has no mention in the original Constitution of India or its successive amendments.
• In the Third Judges case (1998), the Supreme Court opined that the chief justice of India should consult a collegium of 4 senior most judges of the Supreme Court and even if 2 judges give an adverse opinion, he should not send the recommendation to the government.

Is the collegium’s recommendation final and binding?

The collegium sends its final recommendation to the President of India for approval. The President can either accept it or reject it. In the case it is rejected, the recommendation comes back to the collegium. If the collegium reiterates its recommendation to the President, then he/she is bound by that recommendation.

Eligibility to become a Supreme Court judge:

1. The norms relating to the eligibility has been envisaged in the Article 124 of the Indian Constitution.
2. To become a judge of the Supreme court, an individual should be an Indian citizen.
3. In terms of age, a person should not exceed 65 years of age.
4. The person should serve as a judge of one high court or more (continuously), for at least 5 years or the person should be an advocate in the High court for at least 10 years or a distinguished jurist.