top of page

How Are Judges Appointed In India?

Introduction

The Supreme Court of India was established on January 28, 1950, and it has the highest judicial power among the courts. The Supreme Court of India is the guardian of the Constitution for reasons as follows: it protects the fundamental rights of the citizens; it gets rid of the ambiguity posed by the Constitution and affirms the supremacy of the Constitution. The functions of the Supreme Court are exercised by the Chief Justice of India and the judges presiding in the bench. Initially, in 1977, The Supreme Court had only 7 judges excluding the Chief Justice. But later on, the Supreme Court (number of judges) Amendment Act, 2009 was introduced and the Court consisted of the Chief justice of India and a total of 30 other judges, and later in 2019, it was again changed to 34 including the Chief Justice of India. Article 124 of the Indian Constitution deals with the establishment and Constitution of the Supreme Court. The Supreme Court comes under union judiciary and deals with original, appellate, and advisory jurisdictions The High Court comes under the state judiciary and exercises the highest judicial power in each state and union territory. Article 214 states the existence of High courts for each state and Article 231 states the existence of a common High Court for 2 or more states/union territories. Many Constitutional jurists contemplated that the nature of the Constitution is quasi-federal. Looking through the legal front of the nation, the Supreme Court deals with the Centre and High Courts deal with the states. Thus, India being the 7th largest country and 2nd populous country in the world with diverse citizens, it can be concluded that the judicial system of India is also quasi-federal. The process of appointing the judges is different in both the Supreme Court and High Courts.

(I)Before the 99th Amendment Act,2014

Appointment of Judges in Supreme Court

The 1st Chief Justice of India was H J Kania and he was appointed by the 1st President of India Dr. Rajendra Prasad in 1860. The process of Appointment of the judges in the Supreme Court of India is done by the President of India after consulting judges presiding in the Supreme Court and the High Courts as he might deem necessary. The Chief Justice of India exercises many crucial powers, one of them being swearing in the President and the State Governors, and he is also given the title “highest-ranking judicial official of India”. Article 124(2) makes it mandatory to consult those who are suitable and competent enough to give advice on such matters. The criteria for appointing a Supreme Court judge are as follows: he must be an Indian citizen; he should have at the minimum 5 years of experience as a High Court judge, or a minimum 10 years of experience as an Advocate of a High Court or as an Eminent Jurist. The retirement age of both the Chief Justice of India and the judges of the Supreme Court of India is 65.

Appointment of Judges in High Court

According to the Indian High Courts Act 1861, after consulting the Chief Justice of India and the Governor of the respective state, the president takes a decision on whom he should appoint as the Chief Justice of a State High Court. The process of appointment of judges of the High Court is done by the President, after consulting the Chief Justice and the Governor of that respective state. There is no fixed maximum number for the judges in High Court. As stated in Article 217(1), the judges can remain in the High Court until the age of 62. As stated in Article 217(2), to get appointed as a judge first, he must be an Indian citizen. Second, he must have experience in a judicial office for a minimum period of 10 years or third, he must have experience as an advocate in the High Court for a maximum period of 10 years.

Detailed study:

Before this amendment, the usage of the word “might” in Article 124(2) concluded that it is indiscretion of the president to have a complete choice to consult or not to consult. The Supreme Court has witnessed some cases that dealt in explaining the meaning of the word “consultation” in different ways and following are the four landmark cases dealing with the appointment of judges;

The First judges’ case 1982 or also known as S P Gupta v. Union of India (1). In this case, it was held that the word “consultation” means an exchange of advice and views and not an agreement. From the year 1950 to 1973, the Chief Justices were appointed based on their seniority. So, under the case, Advocate-on-Record v. Union of India (2), the First judges’ case was challenged. It was held that in the process of appointment of judges, the Chief Justice of India should have the primacy and his appointment will be on the basis of seniority, and it was also held the word “consultation” does not imply “concurrence” and that the President is not bound by it. In the case of, Union of India v. Santaland Sheath(3), it was held that the word  “consultation” in this context means to make a decision with the full and effective confabulation with the judges but it is not compulsory for the President to be bound by it if he has a contrary point of view. In the landmark case, Re Presidential Reference(4), It was congenially held by a nine-judge bench that the appointment of the judges in both Supreme court and High court, done on the basis of a recommendation by the Chief Justice and not by the consulting process, is not bound by the Government. But finally, the Court held that the sole discretion of the Chief Justice of India does not imply the meaning of the word “consultation” according to Articles 217(1) and222(1). The majority held that,  in the appointment of judges under Article124, the Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme Court” and even if any two of the presiding judges have a contrary opinion, then the sole recommendation of the Chief Justice will not be binding on the government. In the matter of appointment of judges in High Courts, it was held that the Chief Justice of India should consult “a collegium of two senior-most judges of the Supreme Court”. In this case, the concept of a collegium system was introduced. This system is majorly utilized for transferring and delegating of judges within courts. So here, the collegium exercises the role of recommending and transferring of judges to the High Courts and the Supreme Court.

(II) After the 99th Amendment Act, 2014

Later on, in Article 124(2), the words “after consultation with such of the judges of the Supreme Court or the High Courts in the states as the President may deem necessary for the purpose” were substituted with the words “on the recommendation of the National Judicial Appointments Commission referred to in Article 124A” by the 99th Amendment Act,2014.   Articles 127 and 128 were also amended under which the President will be able to appoint judges in both the Supreme Court and High Courts provided he has a warrant and a seal of the National Judicial Appointments Commission (NJAC)as stated under Article 124A.NJAC is an established body that helps in the recommendation, transfer, and appointment of judges between the Courts. Article 124B deals with the function and duties of NJAC. But later on, in 2014, by a majority 4:1 bench, the Supreme Court declared NJAC to be unconstitutional and void and thereby replacing it with the collegium system. The argument raised by the Supreme Court was that NJAC hampered the independence of the judiciary.

Conclusion

The present collegium system gave rise to some criticisms. The concept of “judges appointing judges” questions the essence of democracy. It is considered to be a closed affair thus diminishing the transparency. In 2009, the Law Commission of India stated that there is a trace of nepotism and personal patronage in the performance of the collegiums system. All these criticisms conclude that the present collegium system is morally contaminated and is not constitutional.

CASE LAW :

  1. AIR 1982 149

  2. (1993) 4 SCC 441

  3. AIR 1977 SC 2328

  4. AIR 1999 SC 1

Aatmaja Menon

SASTRA UNIVERSITY

Comments


Articles

bottom of page