Context: The Supreme Court Collegium headed by Chief Justice of India D Y Chandrachud on Tuesday recommended the appointment of Andhra Pradesh High Court Chief Justice Prashant Kumar Mishra and senior advocate K V Viswanathan as Judges of the Supreme Court.
If appointed, Viswanathan would be in line to serve as Chief Justice of India from August 12, 2030, till May 25, 2031. He would be the fourth CJI from the Bar — after former CJIs S M Sikri in 1971 and U U Lalit last year, and Justice P S Narasimha, who is in line for the top post in 2028
Appointment of Judges: Article 124
- The judges of the Supreme Court are appointed by the president.
- The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
- The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
- The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
Qualifications of Judges
A person to be appointed as a judge of the Supreme Court should have the following qualifications:
1. He should be a citizen of India.
2. (a) He should have been a judge of a High Court (or high courts in succession) for five years; or (b) He should have been an advocate of a High Court (or High Courts in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president.
From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.
What is collegium?
- The Collegium System is one where the CJI and a forum of four senior-most judges of the Supreme Court recommend appointment and transfer of judges of higher judiciary.
- The collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.
- Now, recommendations of collegium have been made public on the website of Supreme Court including the reasons for appointment or transfer.
FIRST JUDGES CASE – S.P GUPTA VS. UNION OF INDIA (1982) – (IN FAVOUR OF EXECUTIVE)
- SC held – opinions of Chief Justice of India (CJI) and Chief Justice of respective High Courts were merely “consultative” and the power of appointment resides solely and exclusively with the Central Government.
- Central government “could” override the opinions given by the Judges. Thus, the opinion of Chief Justice of India in matters of appointment was not given primacy in matters of judicial appointments under Article 217(1).
SECOND JUDGES CASE – S.C. ADVOCATES ON RECORD ASSOCIATION V. UNION OF INDIA (1993) – (PRIMACY OF JUDICIARY) – THE MATTER WAS DECIDED BY NINE JUDGE CONSTITUTION BENCH
- The Court considered the question of “Primacy of opinion of CJI in regard to appointment of Supreme Court Judges”.
- Referring to ‘Consultative Process’ as envisaged in Article 124(2), SC emphasized that Government does NOT enjoy primacy or absolute discretion in matters of appointment of Supreme Court judges.
- Court said that provision for consultation with Chief Justice was introduced as CJI is best equipped to know and assess the worth and suitability of a candidate and it was also necessary to eliminate political influence.
- Selection should be made because of ‘Participatory Consultative Process’ where Executive has the power to act as a mere check on the exercise of power by CJI to achieve constitutional purpose.
- SC held that initiation of the proposal for appointment of a Supreme Court Judge must be by the Chief Justice.
THIRD JUDGES CASE – (1999) – RE: PRESIDENTIAL REFERENCE (EMERGENCE OF COLLEGIUM SYSTEM)
- Supreme Court on a reference made by the President under Article 143 has laid down the following proposition with respect to appointment of Supreme Court judges:
- While making recommendation, CJI shall consult four senior most Judges of Supreme Court. This led to the emergence of present Collegium System.
- the opinion of all members of collegium regarding their recommendation shall be in writing.
- the views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for Collegium’s consideration.
- If majority of the Collegium is against the appointment of a particular person, that person shall not be appointed.
- Even if two of the judges have reservation against appointment of a particular Judge, CJI would not press for such appointment.
- A High Court Judge of outstanding merit can be appointed as Supreme Court Judge regardless of his standing in the seniority list.
National Judicial Appointment Commission Act, 2014 declared as Unconstitutional
- Violation of Basic Structure – Five Judge Bench of Supreme Court [4:1] declared the Constitution 99th Amendment Act and the National Judicial Appointment Commission Act, 2014 as unconstitutional as it violated the Basic Structure of the Indian Constitution.
- Inclusion of Members of Executive – Constitution 99th Amendment introduced Article 124A which provided for the constitution and composition of the National Judicial Appointments Commission (NJAC) which apart from members of Judiciary also included Union Minister of Law & Justice and two Eminent Persons to be appointed by the Central Government.
- Violation of Independence of Judiciary – SC held that Article 124A was insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary as inclusion of members of executed violated independence of judiciary and the aspect of separation of powers. Accordingly, Article 124A (a) to