Appointment of Supreme Court Judges

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    In News

    • Nine new Supreme Court judges were administered their oaths of office by Chief Justice NV Ramana. 

    About

    • It is for the first time in the history of the Supreme Court that nine judges took the oath of office at one go.
    • With the swearing-in of the nine new judges, the strength of the Supreme Court has now increased to 33, including the CJI, out of the sanctioned strength of 34.
    • It was the first time the Supreme Court allowed a live telecast of the ceremony.

    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 senior-most judges of the court.
    • A High Court collegium is led by its Chief Justice and four other senior-most 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.
    • Evolution: 
      • The collegium system has its genesis in a series of Supreme Court judgments called the ‘Judges Cases’. 
      • FIRST JUDGES CASE: In S P Gupta Vs Union of India, 1981, the Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
      • SECOND JUDGES CASE: In The Supreme Court Advocates-on-Record Association Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
        • The majority verdict in the Second Judges Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
        • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
      • THIRD JUDGES CASE: 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 CJI does not constitute the consultation process. 
        • He should consult a collegium of four senior-most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
        • The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.

    Constitutional Provisions 

    • Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution.
      • Article 124(2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as he may deem necessary.
      • Article 217: Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

    Criticism Against the Collegium System

    • Lack of Transparency and Accountability.
    • Scope for nepotism.
    • Embroilment in public controversies.
    • Overlooks several talented junior judges and advocates.

    Way Forward

    • This is a time to revisit the Collegium issue, either through a Presidential reference to the Supreme Court, or a constitutional amendment with appropriate changes in the original NJAC law.
    • The “thought process” of both the government and Collegium should be modulated and the time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
    • There should be an institutional basis for considering names from the Supreme Court Bar, rather than considering them on an ad hoc basis.

    Source: TH