Context: Nine judges of the Supreme Court took oath recently, the biggest ever number at one go.
About:
Articles 124(2) and 217 of the Constitution governs the appointment of judges to the Supreme Court and High Courts respectively.
Under both provisions, the President has the power to make the appointments “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary”.
Over the years, the word “consultation” has been at the centre of debate on the executive’s power to appoint judges.
In practice, the executive held this power since Independence, and a convention of seniority was evolved for appointing the Chief Justice of India.
Three Judges Cases
In three cases — which came to be known as the Judges Cases — in 1981, 1993 and 1998, the Supreme Court evolved the collegium system for appointing judges.
A group of senior Supreme Court judges headed by the CJI would make recommendations to the President on who should be appointed. This was binding on the government (Consultation was interpreted as concurrence of Collegium)
These rulings not only shrank the executive say in proposing a candidate for judgeship, but also took away the executive’s veto power.
National Judicial Appointments Commission (NJAC)
In 2014, the NDA government attempted to get back control on judicial appointments by establishing the NJAC through constitutional amendments.
However, the Supreme Court struck it down as unconstitutional.
