To understand the appointment of Supreme Court judges in India, it is very important to understand the collegium system. It is a system of appointment, elevation and transfer of judges that has evolved from the decisions of the Supreme Court, and not from any Act of Parliament or the Constitution. by provision. The appointment of any Justice or Chief Justice in India is done by the collegium system only.
Head of the collegium system-
The collegium system of the Supreme Court is headed by the CJI (Chief Justice of India) and consists of four other senior most judges of the court. The High Court collegium is headed by the current Chief Justice and two other senior-most judges of that court. Judges of the higher judiciary are appointed only through the collegium system and the government’s role begins only after the names are finalized by the collegium.
Appointment of judges –
For Chief Justice of India:
The Chief Justice and other judges of the Supreme Court are appointed by the President of India. As far as the Chief Justice is concerned, the current Chief Justice recommends his successor. This is done strictly on the basis of seniority. This rule has been strictly followed since the encroachment disputes of the 1970s.
For Supreme Court Judges:
The motion for other judges of the Supreme Court is initiated by the Chief Justice. The Chief Justice consults the rest of the members of the collegium as well as the senior-most judge of the High Court to which the recommended person belongs. The consultants should record their opinion 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 for advice to the President.
For Chief Justices of High Courts-
The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective states. The decision on promotion is taken by the Collegium. High Court judges are recommended by a collegium consisting of the CJI and the two senior-most judges. However, the proposal is initiated by the outgoing Chief Justice of the concerned High Court in consultation with the two senior-most colleagues. The recommendation is sent to the Chief Minister, who in turn advises the Governor to forward the proposal to the Union Law Minister.
Appointment of CJI 1950-1973
By 1973, an agreement was reached between the then government and the Chief Justice of India. Under which a committee was constituted where the senior most judge of the Supreme Court was to be appointed as the Chief Justice of India.
In 1973, A N Ray was appointed as the Chief Justice of India. The appointment violated the earlier established convention as Justice AN Ray had assumed office by superseding three other senior judges of the Supreme Court. Again in 1977, another Chief Justice was appointed who took office by superseding his seniors. This created a conflict between the executive and the judiciary.
Outline of development of the collegium:
1. First Judge Case, 1981:
It declared that the recommendation of the “primacy” of the CJI (Chief Justice of India) on judicial appointments and transfers can be overruled for “cogent reasons”. The decision gave primacy to the executive over the judiciary in judicial appointments for the next 12 years. But due to many irregularities in it, questions were raised on it.
2. Second Judge’s Case, 1993.
Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA). In this case, the Supreme Court overruled its earlier decision and changed the meaning of consultation to consent. Thus binding the President of India in consultation with the Chief Justice of India. This resulted in the birth of the collegium system.
3. Third Judges Case, 1998
In the year 1998, a Presidential reference was issued to the Supreme Court questioning the meaning of the word consultation in Articles 124, 217 and 222 of the Constitution. It will not be only the Chief Justice as a part of the consultation process. The consultation will consist of a collegium of the 4 senior most judges of the Supreme Court. Even if 2 judges are against the opinion, the CJI will not recommend it to the government.
National Judicial Appointments Commission Act-
The collegium system faced a lot of criticism not only from the government but also from the civil society for lack of transparency and accountability. This prompted the 99th Constitutional Amendment Act, 2014 to replace the collegium system for appointment of judges in the form of the National Judicial Commission Act (NJAC).
National Judicial Appointments Commission Act, 2014
The 1993 judgment was the basis on which a five-judge constitution bench declared the National Judicial Appointments Commission Act (NJAC) Act (NJAC) and the Constitutional (99th Amendment) Act, 2014 as unconstitutional in October 2015. The NJAC will also recommend names for appointment. The appointment and transfer of Supreme Court judges and High Court judges will now be done through the collegium system.
