Indian Judiciary- Appointment of Judges
“The Judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for.”
The Judiciary is one of the most important organs of the Indian government which undertakes the function of effectively interpreting the laws made by the Legislature and implemented by the Executive.
The Constitution and the Judiciary
The relation between the Constitution and the Judiciary is such that the Constitution authorizes the Judiciary to act as the “Guardian of the Law”. Therefore, it can be said that judiciary is itself a Constitution but this does not mean that the courts have unlimited power because in India the doctrine of Constitutionalism is applied to maintain the supremacy of the Constitution.
Hierarchy of Courts in India
- Supreme Court of India
- High Courts
- Subordinate Courts (Civil and Criminal)
- Executive/Revenue Court
Appointment of Judges of the Supreme Court of India
The Supreme Court acts as the “Guardian of the Constitution” and is the apex court in India. It also acts as the “Guardian of the Fundamental Rights of the People” and it has also been called as the “Guardian of the Social Revolution” as it has truly been called upon to safeguard civil and minority rights.
At present, the total number of judges in the Supreme Court of India is 34 including the Chief Justice of India (CJI). The current CJI is Justice Sharad Arvind Bobde.
The Part V, Chapter IV (Articles 124-127) of the Indian Constitution deals with the Union Judiciary, i.e., Supreme Court-appointment and removal, role and function.
The Existing System of Judges Appointment
The Judges of the Supreme Court is appointed by the President. The Chief Justice of the Supreme Court is appointed by the President with consultation of such of Judges of the Supreme Court and the High Courts as he deemed necessary for the purpose. But in appointing other Judges, the President would always consult the CJI. He might consult such other Judges of the Supreme Court and High Courts as he might deem necessary [Article 124(2)]. It should, however, be noted that the power of the President to appoint Judges was purely formal because in this matter he acts on the advice of the Council of Ministers.
Under Article 124(2), the President, in appointing other Judges of the Supreme Court is bound to consult the CJI. But in appointing the CJI, he was not bound to consult anyone. The word ‘may’ used in Article 124 made it clear that it was not mandatory on him to consult anyone.
Supremacy of Executive: Judges Transfer Case I
Though according to the language used in Article 124, the President is required to “consult” legal experts but prior to the decision of the Supreme Court on S.C. Advocate-on-Record Association, it has always been interpreted that the President was not bound to act in accordance with such consultation. The meaning of the word “consultation” came from the Sankalchand Sheth’s case, AIR 1977 SC 2328, where the Supreme Court held that the word “consultation” meant full and effective consultation.
For a full and effective consultation, it is necessary that the three constitutional functionaries “must have for its consideration full and identical facts” on the basis of which they would be able to take a decision. The President, however, has a right to differ from them and take a contrary view. Consultation does not mean concurrence and the President is not bound by it.
In S.P. Gupta v. Union of India, AIR 1982 SC 149; popularly known as the Judges Transfer Case, the Supreme Court unanimously agreed with the meaning of the term “consultation” as explained by the majority in Sankalchand Sheth’s case where it was held that the meaning of the word “consultation” in Article 124(2) is the same as the meaning of the word “consultation” in Article 212 and Article 222 of the Constitution.
This means that the ultimate power to appoint judges is vested in the Executive from whose dominance and subordination it was sought to be protected. The Supreme Court had abdicated its power by ruling that Constitution functionaries had merely a consultative role and that power of appointment of Judges is “solely and exclusively” vested in the Central Government.
Judicial Supremacy: S.C. Advocate on Record Association v. Union of India: Judges Transfer Case II
In a historic judgment in S.C. Advocate-on-Record Association v. Union of India (1993) 4 SCC 441; popularly known as Judges Transfer Case, a nine judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgment in the Judges Transfer Case (S.P. Gupta v. Union of India, AIR 1982 SC 149) and held that in the matter of appointment of the Judges of the Supreme Court and the High Courts, the CJI should have primacy.
The majority held that the initiation of proposal for appointment in case of the Supreme Court must be by the CJI and in the case of a High Court by the Chief Justice of the High Court, and for a transfer of a judge of the Chief Justice of the High Court the proposal has to be initiated by the CJI.
No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the CJI. Only in exceptional cases and for strong reasons, the names recommended by the Chief Justice may not be made.
Sole opinion of Chief Justice of India without following consultation process: Not binding on Government: Appointment and Transfer of Judges Case III
In a re-Presidential Reference AIR 1999 SC 1, a nine judge bench of the Supreme Court unanimously held that the recommendation made by the CJI on the appointment of Judges of the Supreme Court and the High Courts without following the consultation process are not binding on the Government.
The Court held- The consulting process to be adopted by the CJI requires consultation of Plurality of Judges. The expressions “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India require consultation with plurality of Judges in the formation of opinion of the CJI. The sole individual opinion of the CJI does not constitute “consultation” within the meaning of the said articles.
The majority held that in regard to the appointment of judges to the Supreme Court under Article 124(2), the CJI should consult “a collegium of four seniormost Judges of the Supreme Court” and made it clear that if “two Judges give adverse opinion the Chief Justice should not send the recommendation to the Government”.
Position after 99th Amendment of Constitution:
The Constitution (Ninety-ninth Amendment) Act, 2014 has amended Articles 124(2), 127 and 128. It has inserted Articles 124A, 124B and 124C. According to the amended Article 124(2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124A. After this amendment, no consultation is required by the President with the Judges of the Supreme Court and the High Court. The first proviso which provided the consultation with the CJI in case of appointment of a Judge other than CJI has been omitted.
But thereafter, in Supreme Court Advocates on Record Association v. Union of India, the Supreme Court struck down NJAC act as ‘unconstitutional and void’. The Court declared that the ‘NJAC’ act altered the basic features of the constitution as it impairs the ‘independence of the judiciary’ and the ‘separation of powers’ by conferring arbitrary and uncharted powers on various authorities under the statute. Therefore, the amendment cannot be sustained. As a result of this discussion, the position as it stood prior to the constitution 99th amendment act i.e. ‘collegium system’ got revived.
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