Judicial Appointments

Notes

Constitutional provisions: Art. 124(2) (Supreme Court judges are appointed by the President after consulting judges of the Supreme Court and High Courts as he deems necessary; the CJI is consulted for others), Art. 217 (High Court judges), Art. 222 (transfer), Art. 233 (district judges appointed by the Governor in consultation with the High Court).

Evolution through the "Judges Cases"

S.P. Gupta v Union of India (1981), First Judges Case: "consultation" does not mean "concurrence"; the executive had primacy.
Supreme Court Advocates-on-Record Association v Union of India (1993), Second Judges Case (nine judges): "consultation" means concurrence; the CJI's opinion has primacy, formed with the two senior-most judges. This created the Collegium. The executive can return a recommendation once, but must appoint if the Collegium reiterates it.
Special Reference No. 1 of 1998 (Art. 143), Third Judges Case: the Collegium is enlarged to the CJI and four senior-most judges for the Supreme Court.
Fourth Judges Case (2015): the 99th Constitutional Amendment (2014) and the National Judicial Appointments Commission (NJAC) Act, 2014 were struck down by a 5-judge bench (4:1), holding that the judiciary's primacy in appointments is part of the basic structure.

NJAC composition (struck down): CJI (Chairperson), two senior-most Supreme Court judges, Union Law Minister, and two eminent persons nominated by a committee of the PM, CJI and Leader of Opposition. Two eminent persons could effectively veto a recommendation.

Procedure today: governed by the Memorandum of Procedure (MoP). The CJI initiates the process; the Collegium recommends; the Law Ministry, after Intelligence Bureau inputs, processes the names and the PM advises the President. For High Courts, the Chief Justice of the High Court initiates proposals in consultation with two senior-most judges, with views of the CM and Governor.

Convention: the senior-most Supreme Court judge is appointed CJI. This was departed from in 1973 (A.N. Ray superseded three judges after Kesavananda) and 1977 (Justice H.R. Khanna superseded).

Key Points

Art. 124(2), 217, 233; Judges Cases of 1981, 1993, 1998, 2015.
Second Judges Case: consultation = concurrence; Collegium created.
NJAC (99th Amendment) struck down in 2015 as violating the basic structure.
Governed by the Memorandum of Procedure.
CJI is conventionally the senior-most judge.

MCQs

Q1. The Collegium system was created by which case? (a) S.P. Gupta (b) Supreme Court Advocates-on-Record Association v Union of India (1993) (c) Kesavananda Bharati (d) Minerva Mills Ans: (b). Second Judges Case.

Q2. Which Amendment created the National Judicial Appointments Commission? (a) 97th (b) 98th (c) 99th (d) 101st Ans: (c). Struck down in 2015.

Q3. In the First Judges Case (S.P. Gupta, 1981), the Supreme Court held: (a) Consultation means concurrence (b) Consultation does not mean concurrence (c) The CJI has primacy (d) Collegium must have five judges Ans: (b).