How are Judges appointed in our country? Judicial appointments in India are done as per the various provisions of the constitution. Read to know more.
In India, the role of the Judiciary is really significant.
Judiciary is the last ray of hope for the common man.
In that aspect, who sits on the chairs of judges matters a lot.
How are judges appointed in India?
Who appoints judges of the Supreme Court and High Courts of India?
Who appoints judges of the Supreme Court Of India?
This is mentioned in clause (2) of Article 124 of the Constitution.
1. Chief Justice Of India
Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.
2. Judges Of the Supreme Court
Whenever a vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of India will initiate a proposal and forward his recommendation to the Union Minister of Law, Justice, and Company Affairs to fill the vacancy.
The opinion of the Chief Justice of India for the appointment of a Judge of the Supreme Court should be formed in consultation with a collegium of the four senior-most puisne Judges of the Supreme Court.
3. Acting Chief Justice
The appointment of acting Chief Justice is to be made by the President under Article 126 of the Constitution. Vacancy in the office of the Chief Justice must be filled whatever the period of vacancy. In such an eventuality, the senior most available Judge of the Supreme Court will be appointed to perform the duties of the office of the Chief Justice of India.
Collegium System Of Judicial Appointments in India
- It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of parliament or by a provision of the Constitution.
- SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior-most judges of the Supreme Court.
- The present form of the collegium system has evolved by the supreme court through three different judgments popularly known as the ‘three judges case’.
1. P Gupta vs President of India and others (1981) [1st judges case]
- It declared that the “primacy” of the CJI’s (chief justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
- The ruling gave the Executive primacy over the Judiciary in judicial appointments in India for the next 12 years.
2. Advocate on record association vs Union of India (1993) [2nd judges case]
- SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC
3. Special reference case (1998) [3rd judges case]
SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
Criticism Against Collegium System
- Non-transparency and opaque-No official procedure for selection
- Promotes nepotism
- Inefficient: Collegium has not been able to prevent the increasing cases of vacancies of judges and pending cases in courts.
- Collegium’ is nowhere mentioned in the Constitution and has been evolved by the judiciary itself for retaining the power to select judges by itself
Attempts To Reform Judicial Appointments: NJAC
The National Judicial Appointments Commission (NJAC) was a constitutional body proposed to replace the present Collegium system of appointing judges.
It was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014]
NJAC was envisioned as consisting of six people:
- Chief Justice of India
- Two most senior judges of the Supreme Court
- Law Minister
- Two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha and are not eligible for re-nomination.
However, the Supreme Court rejected the National Judicial Appointments Commission(NJAC) Act and the 99th Constitutional Amendment in the Fourth judges’ case (2015).
Consequently, the earlier collegium system became operative again.
Who appoints judges of High Courts in India?
Every high court consists of a chief justice and such other judges as the president may from time to time deem necessary to appoint.
Appointment of Chief Justice Of High Court
- In case of the initial appointment of a Chief Justice of a High Court, the provisions of Article 217 will have to be followed.
- Initiation of the proposal for the appointment of Chief Justice of a High Court would be by the Chief Justice of India
- The provision of Article 222 will govern the transfer of Chief Justice from one High Court to another
- After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs would obtain the views of the concerned State Government. After receipt of the views of the State Government, the Union Minister of Law, Justice and Company Affairs, will submit proposals to the Prime Minister, who will then advise the President as to the selection.
- As soon as the appointment is approved by the President, the Department of Justice will announce the appointment and issue the necessary notification in the Gazette of India.
Appointment Of Acting Chief Justice of High Court
- Appointment of Acting Chief Justices is to be made by the President under Article 223 of the Constitution
Appointment of Permanent Judges Of High Court
For appointments in these High Courts, the Chief Justice would initiate a proposal to the Governor of the State where the seat of High Court is situated In case, any of the State authorities wish to recommend a name different from the one recommended by the Chief Justice of the High Court, he should send the same to the Chief Justice of the High Court concerned for his consideration. The initiation of a recommendation for filling up of a vacancy would be made only by the Chief Justice of the High Court concerned
Article written by: Vivek Rajasekharan