Appointment of judges

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Appointment of judges in Supreme Court and High Court

 

Context

Tussle between judiciary and executive on recommendations of collegium (Judges to be appointed in SC and HC).

2. Constitutional provisions in appointment of judges of SC and HC.

  • Article 124: Judges of SC to be appointed by President by warrant under his hand and seal after consultation with such of Judges of Supreme Court and High Courts in the States as the President may deem necessary. In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
  • Article 217: Judges of a High Court to be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court.

3.  Supreme Court judgments on the issue- Three Judges case

The Supreme Court evolved the principal of judicial primacy so ensure that judiciary itself will have the final say in appointment of judges in Supreme Court and High Court. The three cases are S. P. Gupta v. Union of India – 1981 (First Judges case), Supreme Court Advocates-on Record Association vs Union of India – 1993 (Second Judges Case) and Special Presidential Reference (Third Judges case). The Supreme Court ensured the primacy of judiciary in judges’ appointment by declaring that:

  • The word ‘consultation’ in Article 124 and 217 meant ‘concurrence’.
  • The opinion of Chief Justice would not be his singular opinion but the opinion of a collegium of CJI and 4 senior most judges of Supreme Court in case of appointments and transfers.

4.  Present System

  1. Collegium recommends names to Government for appointment.
  2. The Law Ministry examines the recommendation and clears appointments for necessary action through proper channel by the President. It may send the names back to collegium for re-consideration too.
  3. The appointments are made when both collegium and Government are in agreement over the names.

5.   Issues

  • No timeline for clearing or sending the names back resulting in judicial vacancies and large pendency of cases.
  • Opaqueness in judiciary over appointment process.
  • Judges are appointing themselves; hence there is conflict of interest. Popularly known as uncle-brother syndrome in Indian Judiciary.

6. Solutions

  • Glastnost (openness) and perestroika (reconstruction) in Judiciary : Reforms in appointment system by an independent Judicial appointment Commission as envisaged by National Judicial Appointments Commission Act, 2014 which was struck down by SC.
  • Fixed timelines for clearing the names for appointments of Judges or rejection of names and recording the reasons in writing.
  • Open application system for filling up posts of Judges allowing all eligible candidates to apply for posts of Judges.

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