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Appointment of the Supreme Court judges

  • Category
    Polity & Governance
  • Published
    10th Sep, 2019

The Supreme Court Collegium had made recommendations to fill four vacancies in the Supreme Court and for appointments of Chief Justices in eight High Courts across the country.

Context

The Supreme Court Collegium had made recommendations to fill four vacancies in the Supreme Court and for appointments of Chief Justices in eight High Courts across the country.

ABOUT

Evolution of Collegium System

  • Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
  • The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high court’s as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
  • The collegium system has its genesis in a series of judgments called “Judges Cases”. The collegium came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.
  • In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views.
  • But, in the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his seniormost colleagues.
  • Similarly, in the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires ‘consultation of plurality judges’. The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four seniormost judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.

Collegium System

  • It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
  • The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
  • A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.
  • Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
  • Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium.
  • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Number of Judges

  • Originally, the strength of the Supreme Court was fixed at eight (one chief justice and seven other judges).
  • The Parliament has increased this number of other judges progressively to ten in 1956, to thirteen in 1960, to seventeen in 1977 and to twenty-five in 1986.
  • In February 2009, the centre notified an increase in the number of Supreme Court judges from twenty-six to thirty-one, including the Chief Justice of India.
  • Recently, the Supreme Court (Number of Judges) Amendment Bill has been passed by Parliament. After the law comes into force, the sanctioned strength of SC will be 33, besides the CJI (total strength = 34).

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