Article 124(2) of the Indian Constitution provides that the Judges of the SC are appointed by the President after consultation with such a number of the Judges of the SC and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President 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.
The Supreme Court has offered diverse meanings of the phrase “consultation”
Evolution of Collegium System
Collegium System: It is the system of appointment and transfer of judges that has evolved through judgments of the SC
First Judges Case (1981):
The Supreme Court judgment held that consultation does not mean concurrence and it only implies an exchange of views.
Second Judges Case (1993):
SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
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.
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.
Criticism of the Collegium System:
Opaqueness and a lack of transparency
Scope for nepotism
Embroilment in public controversies
Overlooks several talented junior judges and advocates
Attempts to reform judicial appointments
The attempt made to replace Collegium System by a ‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
Judiciary is one of the most important pillars of the democracy, thus making the appointments continuous and collaborative process involving the executive and the judiciary, hence it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy.
Previous Year Questions (PYQs)
Q.1)Consider the following statements: (2019)
The 44th Amendment to the Constitution of India introduced an article placing the election of the Prime Minister beyond judicial review
Supreme Court of India struck down the 99th amendment to the Constitution of India as being violative of the independence of the judiciary
Which of the statements given above is/are correct?
1 only
2 only
Both 1 and 2
Neither 1 nor 2
Q.2)The power to increase the number of judges in the Supreme Court of India is vested in (2014)
