• Law Minister Kiren Rijiju has written to the Chief Justice of India D.Y. Chandrachud for the inclusion of government nominees in the collegium system on appointments to the higher judiciary.
• In November, Rijiju had said that the collegium system of making judicial appointments was “alien” to the Constitution.
• A Parliamentary panel too had expressed surprise that the government and the Supreme Court Collegium have failed to arrive at a consensus on the Memorandum of Procedure (MoP), guiding the appointment, elevation and transfer of apex court and High Court judges, even after almost seven years.
• In October 2015, a five-judge Constitution Bench of the Supreme Court declared the NJAC Act, passed unanimously by Parliament, for appointing judges as unconstitutional on several counts.
• In December 2015, the Supreme Court bench said views of the Centre and states should be taken into account and asked the government to prepare a MoP in consultation with the Chief Justice of India to enable transparency in the collegium system of appointment of judges.
• It also asked the Centre to take into consideration suggestions on issues of eligibility, transparency, setting up the Secretariat for the appointment of judges, redressal of complaints and other issues in the MoP on the appointment of judges.
• The collegium system evolved based on three Supreme Court judgments — usually referred to as the ‘Judges Cases’.
• The National Judicial Appointments Commission (NJAC) was a proposed body to replace the collegium system.
• The NJAC was established with amendment of the Constitution (Ninety-Ninth Amendment) Act, 2014, passed by the Lok Sabha on August 13, 2014, and by the Rajya Sabha on August 14, 2014.
• The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
• However, on October 16, 2015, a five-judge Constitution bench by 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional.
What is the collegium system?
• The collegium system is a forum including the Chief Justice of India and four senior-most judges of the SC, which recommends appointments and transfers of judges.
• 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.
Appointment of SC judges
• The CJI and judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
• Whenever a vacancy is expected to arise in the office of a judge of the Supreme Court, the CJI will initiate a proposal and forward his recommendation to the law minister to fill up the vacancy.
• The opinion of the CJI for appointment of a judge of the Supreme Court should be formed in consultation with a collegium of the four senior-most judges of the apex court.
• The opinion of members of the collegium in respect of each of the recommendations as well as the senior-most judge in the Supreme Court from the High Court from which a prospective candidate comes, would be made in writing. The CJI must transmit his opinion as also the opinion of all concerned to the government of India as part of record.
• After receipt of the final recommendation of the CJI, the law minister will put up the recommendations to the Prime Minister, who will advise the President in the matter of appointment.
Appointment of HC judges
• The High Court stands at the head of a state’s judicial administration.
• Article 214 of the Indian Constitution provides for a High Court for each state. The Seventh Constitutional Amendment Act of 1956 authorised the Parliament under Article 231 to establish a common High Court for two or more states and a Union Territory.
• Articles 214 to 231 of the Constitution deals with the organisation, independence, jurisdiction, powers, procedures and other issues related to the High Courts.
• The Chief Justice and judges of the High Courts are appointed by the President under Article 217(1) of the Constitution.
• To be eligible for appointment as a HC judge one must be a citizen of India, have held a judicial office in India for ten years or must have practised as an advocate of a High Court or two or more such courts in succession for a similar period.
First Judges Case (S.P. Gupta vs Union of India)
• The judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges Case on December 30, 1981.
• Earlier, the power of appointment of judges to the higher judiciary, was exclusively vested with the President.
• In its judgment, it was held that “consultation” did not include “concurrence”, and further, that the power of appointment of Judges under Article 124, was vested with the President, and also, that the President could override the views of the consultees.
• It declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent” reasons.
Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of India)
• The correctness of the First Judges Case was doubted by a three-judge bench in Subhash Sharma vs Union of India, which opined that the majority view, in the First Judges Case, should be considered by a larger Bench.
• The Chief Justice of India constituted a nine-Judge Bench, to examine two questions. Firstly, whether the opinion of the Chief Justice of India in regard to the appointment of judges to the Supreme Court and to the High Courts, as well as, transfer of Chief Justices and judges of High Courts, was entitled to primacy? And secondly, whether the fixation of the judge-strength in High Courts, was justiciable?
• By a majority of 7:2, a nine-judge bench of the Supreme Court overruled the judgment in the First Judges Case. The judgment was rendered on October 6, 1993.
• The primacy in the matter of appointment of judges to the higher judiciary, came to be transferred from the executive, to the Chief Justice of India (based on a collective decision, by a collegium of judges).
• It said the CJI only needed to consult two senior-most judges.
Third Judges Case
• Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges Case, the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its opinion.
• A nine-judge Bench answered the reference unanimously, on October 28, 1998.
• The collegium of judges, headed by the Chief Justice of India, has been vested with the final determinative authority for making appointments to the higher judiciary. And the President is liable to “concur”, with the recommendations made.
• The SC bench noted that the expression “consultation with the Chief Justice of India” in Article 217(1) of the Constitution of India requires consultation with a plurality of judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Article.
• The Chief Justice of India must make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most puisne judges of the Supreme Court.
• The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the government of India for non-appointment of a judge recommended for appointment.
• It is important to note that the Third Judges Case modified one important norm or conclusion of the Second Judges Case.
• The modification was that the ‘collegium’ for appointment of judges in the Supreme Court was expanded to consist of the Chief Justice of India and four senior-most judges rather than the two senior-most judges as concluded in the Second Judges Case.