This article is written by Ishita Rathor, a BA LLB student from Teerthanker Mahaveer University.

Introduction

Judiciary is an important organ of the Government and in a Constitution, which provides separation of powers between the centre and the state and an independent Judicial System, the role of Judiciary becomes much more crucial. Since our Constitution was enacted, the Judiciary has performed a vital role in interpreting and protecting the Constitution whenever any dispute has arisen. Hence it is a powerful organ of the government. The Supreme Court of India is, in fact, one of the very powerful Courts in the world. It is the final arbitrator in a dispute arising between the centre and the states or the state inter-se. It is also the final interpreter and guardian of the Constitution as well as the fundamental rights of the people. It is also the highest and final interpreter of the general law of the country. It is the highest appellate Court in civil and criminal matters.

Since the Supreme Court has such vast power and functions, therefore judges who sit in the Supreme Court have huge responsibilities on their shoulders hence, they must be appointed through a just and fair process without any bias so that working of the Supreme Court can be carried out in an efficient manner.

Composition of Supreme Court

Under article 124 of Indian Constitution which provides for ‘Constitution and establishment of S.C. ‘clause (1) states that the Supreme Court of India comprises a Chief Justice and another number of judges as Parliament by law prescribes.

Originally, the other number of judges were ‘seven’ excluding the Chief Justice of India. Presently, the total number of judges in the Supreme Court are 34 including the Chief Justice of India.

Qualification required to become a judge of the Supreme Court

For a person to become a judge of Supreme Court he must be a citizen of India, and

1. must have 5 years of experience as a judge in the High Court; It is not necessary here that this five year of experience must be in a ‘single’ High Court. It can be possible that a person has 2 years’ experience in some High Court and 3 years of experience in some other High Court; or
2. must have 10 years of experience as an advocate in High Court; or 
3. is in the opinion of the president, a distinguished Jurist.

However, so far, not a single person has been appointed as a judge of the Supreme Court through the third condition. Most of the judges that have been appointed to the Supreme Court are on the basis of their “5 years experience as judges in the High Court”. And only eight persons have been able to be appointed as Supreme Court judge on the basis of their 10 years of experience as an advocate in the High Court. Out of those eight persons, Justice Indu Malhotra is the one who is currently a Supreme Court judge appointed on the basis of 10 years of experience as an advocate in the High Court. She is the only woman in this category.

Appointment of judges of Supreme Court

In order to understand the present ‘method’ use to appoint a person as a judge of the Supreme Court, we need to divide the period as follow

1. procedure of appointment of Supreme Court judge before 99th amendment; &
2. procedure of appointment of Supreme Court judge after 99th amendment
3. current procedure of appointment of Supreme Court judge
4. procedure of appointment of Supreme Court judge before 99th amendment; &

Before 99th amendment of constitution article 124 (2) which governs the appointment of Supreme Court judge states that “every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of High Court in the states as the President may deem necessary for the purpose”.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall be consulted.

This means that under article 124 (2), in appointing other judges of the Supreme Court, the president was bound to consult the Chief Justice of India as it may be clear by the words ‘shall be consulted’. But in appointing the Chief Justice of India he was not bound to consult anyone as the word ‘may’ used made it clear that it was not mandatory for the president to consult anyone.

However, till 1973 the senior-most judge of the Supreme Court was appointed as the ‘Chief Justice of India’. This practice had become a ‘convention’ and was followed by the president without any exception. But this practice was suddenly broken by the government when Justice A.N. Roy was made Chief Justice of India after superseding three senior judges of the Supreme Court i.e.  Justice Shelat, Justice Hegde and Justice Grover. After this decision of the government, there went huge debate across the whole India that is there executive interference prevailing in the matter of appointment of a judge of the Supreme Court?

This question will be better answered through three judges’ case studies.

In S.P. Gupta v. Union of India which is popularly known as judges transfer case I. The Supreme Court after being agreed with its earlier decision was given in Sankalchand sheth’s case held again that word ‘consultation’ meant ‘mere consultation of views’ and it does not means ‘ concurrence of views’ and thus the President is not bound to act in accordance with such consultation and has a right to take a contrary view.

This decision of the Supreme Court means that power of appointment of judges was “solely and exclusively” vested in the central government and other constitutional functionaries had merely a consultative role. Hence this case laid down the ‘executive supremacy’ in matters of appointment of Supreme Court judges.

Then came the Supreme Court Advocates on Record Association v. UOI: Judges transfer case II: In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgement given in the judge’s Transfer case I and held that in the matter of appointment of the judges of the Supreme Court and High Court, the Chief Justice of India should have primacy. The appointment of Chief Justice of India shall be on the basis of seniority but the greatest significance should be attached to the view of the Chief Justice of India formed after taking into account the views of two senior-most judges of the Supreme Court. It, thus, reduces to the minimum individual discretion of constitutional functionaries. So as to ensure that neither political bias nor personal favouritism nor animosity should play any part in the appointment of the Supreme Court judges. It is for this reason that the word ‘consultation’ instead of ‘concurrence’ was used in the constitution to indicate that the absolute discretion was not given to anyone neither to executive head nor judicial head.

The majority held that no appointment of any judge to the Supreme Court can be made unless it is in conformity with the opinion of the Chief Justice of India. This decision thus laid down the judicial Supremacy in the matter of appointment of judges of the Supreme Court.

After this came, the Judges transferred case III which was not a case but a ‘presidential reference’ raised by the president of India K.R. Narayana used his consultation power under article 143. The President had sought the Supreme Court’s clarification on the ‘collegium system’ as laid down in judges Transfer case II, following a controversy over the recommendation by then Chief Justice of India M.M. Punchhi.

In which, the Court held that the ‘collegium system’ requires consultation of the plurality of judges. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said articles. It was held that under Article 124(2), the Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme Court” and made it clear that if “two judges give an adverse opinion the Chief Justice should not send the recommendation to the government”. The opinion of the collegium must be in writing and the Chief Justice of India should send the recommendation to the President along with his own recommendations.

The Court also held that the President can send back the recommendation of ‘collegium system’ but if again the same name is proposed by ‘collegium’, the president is bound to accept it.

This is how the ‘collegium system’ developed gradually on the basis of Precedence established by three separate cases of the Supreme Court of India. The judges were appointed to the Supreme Court according to this system.

But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and 128 and also inserted article 129 A,124 B and 124 C changes were done in the procedure of appointment of judges of Supreme Court let’s see what changes were brought by 99th amendment of the constitution

Procedure after the 99th amendment of the Constitution

After this amendment, under article 124(2), every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission referred to in article 124 A.

NJAC, as provided by Article 124 (A), consisted of

1. Chief Justice of India;
2. two other senior judges of the Supreme Court;
3. union law minister
4. 2 eminent people’ to be nominated by the committee consisting of the prime minister, Chief Minister of India and the leader of opposition. 

The above composition clearly states that NJAC has both judicial as well as executive the representatives.

Thus, the 99th amendment act which brought NJAC held that the established wisdom of appointment of judges can be shared with the political executive. This was a huge change in the methodology used to appoint a Judge of the Supreme Court.

But thereafter, in Supreme Court Advocates on Record Association v. Union of India, the Supreme Court struck down NJAC act as ‘unconstitutional and void’. The Court declared that the ‘NJAC’ act altered the basic features of the constitution as it impairs the ‘independence of the judiciary’ and the ‘separation of powers’ by conferring arbitrary and uncharted powers on various authorities under the statute. Therefore, the amendment cannot be sustained. As a result of this discussion, the position as it stood prior to the constitution 99th amendment act i.e. ‘collegium system’ got revived.

The current procedure of appointment of Supreme Court judges

In Supreme Court Advocates on Record Association v. Union of India, the Court held that the ‘collegium system’ as it existed before NJAC, would again become operative. But the Court also ordered for the introduction of appropriate measures in order to improve the 21 years old ‘collegium system’ resultantly the memorandum of the procedure is brought into working i.e now ‘collegium system’ will work as per ‘MOP’.

1. The MOP may indicate eligibility criteria such as the minimum age
2. in order to bring transparency in the appointment process, the appointment procedure of judges as detailed in MOP ought to be made available on the website of the concerned Court
3. The MOP may provide for the establishment of the secretariat for better management of’ collegium system’
4. The MOP may provide for an appropriate mechanism to deal with complaints against anyone who is being considered for appointment as a judge

These were the broad suggestions that were given by the Court to enhance the ‘collegium system’ Till date, this mechanism is being followed to appoint judges of the Supreme Court.

Conclusion

Till 1973, from appointing senior-most judge of Supreme Court as CJI to gradually developing a ‘collegium system’ through precedence established by the Supreme Court judgements in three Judges’ case to appoint judges of the Supreme Court, the ‘collegium system’ evolved so far has ensured ‘independence of the judiciary’. Further, the working of the collegium system under the protocol of MOP is hitherto the best possible way to appoint a judge of the Supreme Court of India. However, with the need of time, a more efficient system surely needs to be found so that appointment procedure could be fairer and the judiciary will have the best possible minds as judges.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: