This article is written by Aditya Shaw 2nd Year Heritage Law College has written Article on APPOINTMENT OF JUDGES TO HIGH COURTS AND SUPREME COURT: A JOURNEY THROUGH THE FIRST TO THIRD JUDGE’S CASES, NJAC, AND THE COLLEGIUM SYSTEM
Appointing judges to High Courts and the Supreme Court is crucial for India’s legal and judicial systems. The process ensures the top judiciary has qualified, impartial, and competent judges to uphold the rule of law. Nonetheless, this seemingly routine procedure has become the subject of intense debate and scrutiny.
The history of judicial appointments in India involves constitutional complexities, judicial interpretations, and evolving practices. It shows the shift from a simple process to the complex and often contentious system we have today. Understanding today’s complexities requires grasping the historical context, forming the basis for appointment challenges and reforms.
This history includes milestones like the Constitution’s formulation, granting appointment authority to the President, and the judiciary’s evolving role in shaping procedures. Over time, these dynamics balanced judicial independence and accountability, making historical context vital to the Indian judiciary discourse.
Significance of Judicial Appointments
The importance of judicial appointments extends beyond simply filling vacancies in the judiciary. It is about safeguarding the foundations of justice, democracy, and the rule of law. Appointing judges is a solemn duty that determines the course of justice in the country, not a routine administrative task. This significance has sparked heated debates and calls for reform, fueled by a collective recognition of the critical role judicial appointments play in preserving India’s judicial system’s integrity and credibility. Researchers embark on a journey through the intricate labyrinth of judicial appointments in this comprehensive analysis, with the goal of shedding light on its constitutional underpinnings, the functioning of the Collegium system, landmark legal battles, transparency and accountability concerns, and the path forward for a strong and accountable judiciary.
India’s constitutional fabric intricately weaves the appointment of judges to its High Courts and Supreme Court. This section delves into the constitutional provisions that govern these appointments, focusing on the roles of Articles 124 and 217.
Appointment of Supreme Court Judges
India’s constitution meticulously structures the process for appointing judges to the Supreme Court. This procedure, outlined in Article 124 of the Indian Constitution, ensures the appointment of highly qualified and distinguished individuals to serve as custodians of justice and interpreters of the nation’s highest law.
Article 124, establishing the Supreme Court of India, outlines the key aspects of the appointment procedure. It establishes the Supreme Court as the supreme judicial body of the country, consisting of a Chief Justice of India and no more than seven other judges until Parliament enacts a law mandating a larger number. This limit on the number of judges ensures that the court operates in a balanced and efficient manner while allowing for future expansion.
The consultation mechanism is at the heart of the appointment procedure. The authority to appoint each Supreme Court justice is not exercised in isolation but by the President of India. Before making an appointment, the President must consult with Supreme Court and High Court judges. The purpose of this consultation is to gather diverse perspectives and expert opinions to ensure that the selected candidates meet the highest standards of legal acumen and integrity.
The Chief Justice of India (CJI) is crucial in this process. When appointing judges other than the CJI, the President is required to consult with the CJI, emphasizing the CJI’s unique position as the head of the judiciary. This consultation process is critical in ensuring that appointments are made with a thorough understanding of the nuances of the law and the demands of the position.
The Supreme Court of India clarified the meaning of the term “consultation” in Article 124(2) of the Indian Constitution in the pivotal case of S.P. Gupta v. Union of India. The Court emphasized that appointing judges was more than just an executive formality, but a critical consultative process that must be followed in both letter and spirit. This decision emphasized the significance of a rigorous and diligent approach to judicial appointments, ensuring that only the most qualified and deserving candidates were appointed to the bench. It has since become a foundational precedent in judicial appointment discussions, reaffirming the judiciary’s commitment to justice, fairness, and the rule of law.
Qualifications for Appointment
Article 124(3) specifies the qualifications required for appointment as a Supreme Court judge. A candidate must be an Indian citizen and meet one of the following requirements:
- Hold a position as a High Court judge for at least five years or serve in two or more High Courts consecutively.
- Have at least ten years of experience as an advocate in a High Court or multiple High Courts.
- In the President’s opinion, you should be recognized as a distinguished jurist.
These requirements highlight a candidate’s extensive legal experience and expertise, ensuring that only the most accomplished legal minds are considered for the prestigious position of Supreme Court justice.
Oath and Affirmation
Every Supreme Court appointee must take and sign an oath or affirmation before the President or an authorized representative before taking office. This solemn commitment symbolizes a judge’s dedication to upholding the Constitution and the principles of justice, solidifying the nation’s trust in them.
To maintain judicial integrity, the Constitution provides a robust mechanism for the removal of a Supreme Court judge. A judge can only be removed by an order issued by the President after a rigorous process. On the grounds of proven misbehavior or incapacity, both Houses of Parliament must present an address to the President supported by a majority of the total membership and not less than two-thirds of members present and voting. This rigorous and thorough procedure ensures that judicial officeholders are held to the highest standards of conduct.
The appointment of judges to the Supreme Court of India is a well-defined process rooted in the Constitution, with the goal of protecting the integrity of the judiciary and upholding the rule of law. It emphasizes a consultative approach, stringent qualifications, and a rigorous impeachment process, reflecting the nation’s commitment to preserving a judiciary comprised of individuals of exceptional legal caliber and unwavering commitment to justice.
Appointment of High Court Judges: A Constitutional Overview
In India, the appointment of judges to High Courts is a meticulous process that is enshrined in Article 217 of the Indian Constitution. This article outlines the steps, consultations, and qualifications necessary to ensure the selection of highly qualified and deserving individuals to serve as judges in the nation’s High Courts.
The consultative nature of High Court judge appointments is emphasized in Article 217(1). The President of India, who has the authority to make these appointments, is required to consult with several key figures to ensure a thorough and informed decision-making process. These consultations include the following topics:
- Chief Justice of India (CJI): The country’s highest-ranking judicial official, representing the supreme court.
- Governor of the State: The constitutional head of the state where the High Court is located.
- Chief Justice of the High Court: The senior-most judge within the respective High Court.
The purpose of these consultations is to ensure that judicial appointments are made with due diligence, considering the candidate’s legal acumen, integrity, and suitability for the prestigious position.
Qualifications for Appointment
Article 217(2) specifies the qualifications required for consideration for appointment as a High Court judge. These qualifications are as follows:
- Citizenship of India: The candidate must be a citizen of India.
- Ten Years of Judicial Office: The candidate must have held a judicial office within the territory of India for at least ten years.
- Ten Years as an Advocate: Alternatively, the candidate should have practiced as an advocate of a High Court, or multiple High Courts successively, for a minimum of ten years.
Furthermore, the Constitution allows for consideration of the candidate’s previous legal and judicial roles. It includes time spent serving as a member of a tribunal or holding a position under the Union or a State that requires specialized knowledge of the law.
Article 217(3) addresses the issue of determining the age of High Court judges. If a question about a judge’s age arises, the President has the authority to make the final decision in consultation with the Chief Justice of India.
The appointment of judges to India’s High Courts is a rigorous and consultative process aimed at selecting individuals with exceptional legal expertise and unquestionable integrity. This procedure exemplifies the country’s dedication to preserving a strong and impartial judiciary, which is a cornerstone of the Indian democratic system.
S.P. Gupta v. Union of India (First Judge’s Case, 1982):
The case of S.P. Gupta v. Union of India, also known as the First Judge’s Case, marked the beginning of a significant legal journey in the Indian legal landscape. This case, along with its subsequent companions in the “Three Judges Cases” series, laid the groundwork for the revolutionary collegium system in the appointment of judges to India’s Supreme Court and High Courts. The First Judge’s Case had far-reaching implications for the principle of judicial independence and transparency in governance, in addition to its immediate implications for judicial appointments.
The context for this case was one of growing concern in India about the arbitrariness and opacity of the process of appointing judges to higher courts. The lack of a transparent and objective system for judicial appointments alarmed legal luminaries and scholars. This resulted in a fundamental challenge to the current practice.
Facts of the Case:
A flurry of writ petitions appeared in various High Courts in 1981, all of which shared a common concern: the non-appointment of two judges and their subsequent transfer. These petitions, however, went beyond administrative issues, questioning the constitutionality of the process of appointing judges to higher courts. Among the contentious issues was the appointment of three additional Supreme Court judges for short terms, which appeared to be in violation of Article 224 of the Constitution. Petitioners also sought the conversion of these temporary positions into permanent ones to preserve the independence of the judiciary.
S.P. Gupta, a prominent advocate practicing in the Allahabad High Court, was a significant petitioner in this case. His participation would be critical in reshaping India’s judicial appointment system.
The First Judge’s Case revolved around several critical issues:
- Constitutional Validity: The main issue was the constitutionality of the Central Government’s orders concerning the non-appointment and transfer of judges to High Courts for short terms.
- Disclosure of Correspondence: The case involved the disclosure of correspondence between the Minister of Law, the Chief Justice of the Delhi High Court, and the Chief Justice of India regarding the transfer and appointment of judges.
- Locus Standi: The petitioners’ standing to bring the case to court was also questioned.
- Independence of the Judiciary: One critical issue addressed was the importance of preserving the judiciary’s independence and establishing a fair procedure for appointing judges to higher courts.
Petitioners’ Arguments: The petitioners contended that the Central Government’s orders indirectly coerced judges into agreeing to additional judge appointments out of fear of jeopardizing their careers. They also demanded that all correspondence related to non-appointments and transfers be made public. Furthermore, they claimed that the President had failed in their duty under Article 216 of the Constitution, which requires the appointment of judges to effectively address the backlog of cases.
Respondents’ Arguments: The respondents claimed that the documents were exempt from disclosure because they were advice from the Ministerial Council to the President, citing Article 74(2). They also argued against the publication of specific documents under Section 123 of the Indian Evidence Act of 1872.
Concerning locus standi, they claimed that the petitioners had suffered no harm because of the government’s orders and thus lacked the right to bring the case to court.
Judgment and Rationale:
The majority decision, with a 5:2 split, upheld the validity of the non-extension of additional judge S.N. Kumar. Justice P.N. Bhagwati played a pivotal role in shaping the judgment.
- Disclosure of Correspondence: The Court ruled that disclosure could be withheld only if it would harm public interest or contravene public policy. It emphasized the importance of an open and responsible government accountable to its citizens, underlining the citizens’ right to know, as guaranteed by Article 19(1)(a) of the Constitution.
- Article 74(2): The Court held that the correspondence did not fall under the ambit of advice mentioned in Article 74(2) and that it included opinions, which did not constitute advice.
- Unpublished Documents: The Court cited the precedent of State of UP v. Raj Narain (1975), which upheld the High Court’s decision to treat unpublished documents as evidence. It affirmed the court’s authority to determine the impact of disclosure on public interest.
In conclusion, the Court found that the consultation between the government and the authorities for appointing and transferring judges had not been conducted properly and lacked a proper basis. It emphasized the need for a separate procedure to maintain the judiciary’s independence.
The First Judge’s Case, with its emphasis on judicial independence and transparency, marked a pivotal moment in the history of the Indian judiciary. It set the stage for subsequent cases, ultimately leading to the establishment of the collegium system. This system gave senior judges a significant say in the appointment of judges to the Supreme Court and High Courts, significantly enhancing the judiciary’s independence from the executive branch.
Furthermore, the case emphasized the importance of government accountability and transparency, setting a precedent for the public’s right to know about government operations, as guaranteed by the right to freedom of expression under Article 19(1)(a) of the Constitution. The First Judge’s Case, therefore, stands not only as a landmark in the evolution of India’s judicial appointment process but also as a beacon for open and responsible governance.
Second Judge’s Case (1993) – Supreme Court Advocates-on-Record Association v. Union of India:
Officially known as Supreme Court Advocates-on-Record Association v. Union of India, the Second Judges Case is a significant court case that had a significant impact on the independence of the Indian judiciary. This case, also known as the “Second Judges Case,” had a significant impact on how judges were chosen to serve on India’s Supreme Court and High Courts. The decision was made on October 6, 1993.
The Supreme Court’s nine-judge panel in this case reversed the court’s earlier ruling in the S.P. Gupta case and established a specific process for choosing judges for the Supreme Court and High Courts. The main argument was whether or not the Chief Justice of India should take precedence in these transfers and appointments.
Key Issues and Controversies:
- Interpretation of “Consultation”: The main controversy concerned how the term “consultation” should be interpreted in relation to the appointment of judges as stated in Article 124 of the Indian Constitution. According to the majority, consultation should be a participatory and consultative process in which the Chief Justice of India and the executive branch both play key roles.
- The primacy of the Chief Justice of India: The case addressed the issue of whether the Chief Justice of India should have the final say in who gets to choose and appoint judges to the Supreme Court, High Courts, and vice versa.
- Fixation of Judge Strength: The decision regarding the appropriate number of judges for each High Court and whether this was subject to judicial review was another important issue.
The Chief Justice of India’s role in judicial appointments was deemed special and crucial by the majority judgment in the Second Judges Case. It established a consultative procedure whereby the Chief Justice of India would recommend appointments to the executive after consulting with two senior colleagues. The executive was expected to accept this suggestion in most cases.
Significance and Impact:
The Second Judges Case had a significant influence on the selection of judges for India’s higher judiciary. It gave the Chief Justice of India a significant say in the selection process, ensuring that the independence and integrity of the judiciary were carefully considered before any appointments were made. As a result of this decision, the judiciary now has the authority to appoint judges instead of the government.
The case, however, also led to discussions and controversies. Some claimed that the ruling changed how the Constitution was to be interpreted, particularly in relation to the word “consultation.” The choice sought to strike a balance between judicial independence and democratic control.
In conclusion, the Second Judges Case fundamentally altered how judges are chosen in India, highlighting the significance of preserving an independent judiciary. The definition of “consultation” in relation to judicial appointments was also clarified, ensuring that the executive and judicial branches collaborate in the choice of judges.
In re Special Reference No. 1 of 1998 (Third Judge’s Case)
President K. R. Narayanan made a significant presidential reference to the Supreme Court of India in 1998, focusing on issues resulting from the Second Judges Case. Under Article 143 of the Indian Constitution, a reference was made to obtain more information about how the collegium system for judicial appointments operates.
The reference posed nine key clarification questions, including:
- Whether “consultation” with the Chief Justice of India (CJI) meant speaking with the CJI alone or the CJI and puisne judges.
- The extent of judicial review with respect to judge transfers.
- The value of experience in choosing members of the Supreme Court.
Judgment and Significance:
The fundamental idea established in the Second Judges Case was unanimously reaffirmed by a nine-judge panel chaired by Justice S. P. Bharucha. It made it clear that “consultation with the Chief Justice of India” called for the input of several judges, not just the CJI’s viewpoint. This decision had a major influence on how the collegium system came to be.
The CJI and the four Supreme Court judges with the highest-ranking positions make up the collegium system as it is described in this case. It emphasized that, if they were recommended after consultation with the entire collegium system, both transfers and appointments should be subject to judicial review.
The judgment stated that when there are deviations from seniority, strong and convincing reasons are not required to be recorded, but a justification for the recommendation should be mentioned. Along with the CJI’s opinions, the other judges who were consulted must also have their opinions documented in writing and delivered to the Government of India. The government wouldn’t be required to act in accordance with the CJI’s recommendations if they weren’t followed.
The Third Judges Case offered crucial guidelines for judicial transfers and appointments, but it has drawn criticism for being unofficial and opaque. Despite the collegium system’s intention to protect judicial independence, questions have been raised about its lack of accountability and ongoing applicability.
This case continues to be essential to comprehend the development of the collegium system and its effects on the Indian judicial system.
The Collegium System
The Collegium System, which includes both the Supreme Court and the High Courts, is the cornerstone of judicial appointments and transfers within the higher echelons of the Indian judicial system. Its beginnings can be linked to important judicial decisions, particularly the Second and Third Judge’s Cases, which have permanently altered the judicial system of the country.
Key Elements of the Collegium System: The appointment of judges to High Courts and the Supreme Court
- Recommendations by the Collegium: The “collegium,” a prestigious group of judges charged with the duty of suggesting candidates for judicial positions, is at the heart of this system. The level of the appointment in question determines how the collegium will be made up. For Supreme Court appointments, the Chief Justice of India (CJI) and the four most senior judges are involved, whereas for High Court appointments, the Chief Justice of the relevant High Court and the two most senior judges are typically involved.
- Decision-Making Process: The collegium has a big say in how the judiciary is run. It engages in a complex consultative process to develop recommendations, painstakingly assessing the qualifications, experience, and suitability of potential candidates. These varied factors form the basis of the decision-making calculus.
- The primacy of the Collegium: The Second Judge’s Case’s crucial rulings highlight the collegium’s superiority. They stress that in the complex web of judicial appointments, the Chief Justice of India’s (CJI) judgment should take “primacy.” The Third Judge’s Case then elaborated on this, clarifying that when there is a disagreement, the collegium’s consensus takes precedence.
- Role of the President: The Indian President officially acts as the appointing authority in this complex system. This position is primarily ceremonial, though. The President must follow the collegium’s recommendations as required by the constitution. The President’s discretion is typically reserved for exceptional situations, like learning negative information about a suggested candidate.
Controversies and Evolving Discourse: The appointment of judges to High Courts and the Supreme Court
The Collegium System has been crucial in regulating judicial appointments, but it has also generated a lot of discussion and criticism. The topic of accountability and transparency is one of the main points of contention. Critics claim that the process, which is primarily internal to the judiciary, lacks transparency and keeps stakeholders and the public in the dark.
Another criticism focuses on the collegium’s potential for power concentration, which at times might overshadow other participants in the appointment process. The Collegium System has been the subject of discussions and reform proposals as a result, with the goals of enhancing transparency, objectivity, and participation across the board in the appointment and transfer of judges.
To address these issues and usher in a more transparent and accountable mechanism for judicial appointments in India, there has been a discernible shift in recent years toward reevaluating and reshaping the Collegium System. This system’s development has served as a symbol for the complex interactions between the executive, judiciary, and public discourse around Indian law.
The National Judicial Appointments Commission
The National Judicial Appointments Commission Act of 2014, which received presidential assent on December 31, 2014, signaled a pivotal turning point in India’s legal system by establishing a six-member National Judicial Appointments Commission (NJAC). The Collegium System, which had long governed the selection of judges, was to be replaced by this new organization. The members of the NJAC were to be:
- The Chief Justice of India (CJI): Serving as the Chairperson ex-officio.
- Two Judges of the Supreme Court: These would be the two judges immediately following the CJI in seniority, serving as members ex-officio.
- Union Minister in charge of Law and Justice: This individual would serve as a member ex-officio.
- Two Eminent Persons: Nominated by a collegium comprising the Prime Minister, the CJI, and the Leader of the Opposition in the House of People. These eminent persons were to hold office for a non-renewable three-year term.
The Secretary to the Government of India in the Department of Justice was to convene the Commission.
Provisions and Amendments:
The Act provided specific instructions on how to recommend candidates for appointment as High Court judges and how to shortlist candidates, respectively, in Clauses 5 and 8. The Indian Constitution’s Articles 124 and 217 were amended by the Constitution (99th Amendment) Act of 2014 to facilitate these changes.
The Constitution (99th Amendment) Act of 2015 and the NJAC Act of 2015, however, both had their legal standing questioned. A Constitutional Bench presided over by Justice J.S. Khehar heard several Public Interest Litigations (PILs) filed by the Supreme Court Bar Association (SCBA) and the Courtroom Advocates on Record Association (CAOR Association).
When the Constitution Bench of the Supreme Court ruled that both the Constitution (99th Amendment) Act and the NJAC Act were unconstitutional, the NJAC Act faced a critical moment. The NJAC framework was effectively invalidated by this decision.
Resurrection of the Collegium System:
The demise of the NJAC resulted in a return to the status quo even though it had the potential to reform the opaque Collegium System. The Collegium System was reinstated in the Supreme Court Advocates-on-Record Association v. Union of India case along with rules intended to improve its performance.
Stakeholders were asked to share their insights to increase the system’s effectiveness and transparency. Changes were suggested in several areas, including “transparency,” “secretariat,” “eligibility criteria,” “complaints,” and “Memorandum of Procedure,” based on the majority of these suggestions (MOP).
The saga of India’s judicial appointments continues to be a dynamic story that illustrates how institutional reform, constitutional requirements, and the pursuit of a just and effective judiciary interact.
Conclusion: The appointment of judges to High Courts and the Supreme Court
The appointment of judges to High Courts and the Supreme Court
India’s judicial appointment procedure is the subject of intense discussion and reform because it is essential to its legal and democratic foundations. It is more than just administration; it is the cornerstone of justice because it is rooted in a complicated historical context.
Our research led us through the nuances of the Constitution, covering everything from the Supreme Court and High Court appointments made in accordance with Articles 124 and 217 to well-known cases like the First Judge’s Case, Second Judge’s Case, and Third Judge’s Case. The significance of the Chief Justice of India, the role of consultation, and the need for accountability and transparency were all redefined by these cases.
Despite being crucial for judicial independence, the Collegium System is under fire for lack of transparency and a concentration of power. A legal setback caused by the National Judicial Appointments Commission caused the Collegium System to be revived and led to ongoing reform discussions.
India’s convoluted judicial appointment process essentially serves as an illustration of the complex dance between constitutional requirements, legal development, and the country’s steadfast commitment to justice and the rule of law. It’s a compelling story that is influencing India’s judicial future.
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Reference: The appointment of judges to High Courts and the Supreme Court
 Constitution of India 1950, art 124
The Constitution of India 1950, art 217
 Constitution of India 1950, art 124(2)
 S.P. Gupta v. Union of India,  AIR SC 149
 Constitution of India 1950, art 124(3)
The Constitution of India 1950, art 217(1)
 Constitution of India 1950, art 217(2)
 Constitution of India 1950, art 217(3)
 S.P. Gupta v. Union of India,  AIR SC 149
 Constitution of India 1950, art 224
The Constitution of India 1950, art 216
 Constitution of India 1950, art 74(2)
 Indian Evidence Act 1872, s 123
 Constitution of India 1950. Art 19(1)(a)
 State of UP v. Raj Narain (1975) 4 SCC 428
 Supreme Court Advocates-on-Record Association v. Union of India (2015) AIR SC 5457
 Constitution of India 1950, art 124
 Constitution of India 1950, art 143
 India, Re Special Reference No. 1 of 1998, 1998  SCC 739