The Author, Naveen Talawar is a Law Student at Student in Karnataka State Law University's Law School.
Introduction:
Under any democratic country, the judiciary plays a very important role in upholding the rule of law by protecting and safeguarding the fundamental rights and liberties of the citizen which is possible only if we have an independent and impartial judiciary. The concept of an independent judiciary attracts a lot of attention when it comes to the appointment of judges in the higher judiciary.
The appointment of judges has been a subject of controversy since the constitution came into existence, the question of the independence of the judiciary came a long way from giving primacy to the executive to the setting up of the collegium and then to the setting up of the National Judicial Appointment Commission and surprisingly it remained unsolved, time and again the question was raised concerning the appointment of the judges in the higher judiciary. The present scenario is that the collegium of the supreme court consisting of 5 senior-most judges including the chief justice of India appoints the judges of the High court and the Supreme court.
Constitutional provisions relating to the appointment of judges in Higher Judiciary :
The provisions relating to the higher judiciary has been dealt with under part V and VI of the constitution. Article 124 provides for the establishment and constitution of the Supreme court and Article 214 provides for the establishment and constitution of the High court.
The procedure for appointment of the judges of the Supreme court has been laid down under clause (2) of Article 124 of the constitution and accordingly the president, appoints the judge in the higher judiciary and while appointing a judge, he shall consult such Judges of the Supreme Court and High Court as he may deem necessary for the purpose. And the Chief justice of India shall always be consulted in case of appointment of a judge other than the chief justice.
The qualifications for the appointment of the judges of the Supreme court is laid down under clause (3) of Article 124 which provides that a person shall not be qualified for appointment as a judge of the supreme court unless,
- He is a citizen of India
- Has been a judge of a high court for at least five years, or
- Has been an advocate of a high court for at least 10 years.,or
- A distinguished jurist, in the opinion of the president.
The procedure for appointment of a High court judge has been provided under Article 217(1), accordingly, the President appoints the high court judge after consultation with the Chief justice of India, the governor of the state, and the chief justice of the High court in case of appointment of a judge other than the chief justice. And the qualifications for the appointment of a judge of the high court are mentioned in clause (2) of Article 217 which states that a person shall not be qualified for appointment as a judge of the high court unless,
- He is a citizen of India
- Has for at least 10 years held a judicial office in the territory of India; or
- Has for at least 10 years been an advocate of the high court or two or more such Courts in succession.
Evolution of the collegium system in India:
The appointment of judges of the higher judiciary has been the subject matter of some of the decisions of the supreme court through which a system of collegium had been developed. They are as follows,
The first case which came before the supreme court relating to the appointment of judges was SP Gupta v. Union of India, where the Supreme court held that the power of appointment of the judges under Article 217 of the constitution rests exclusively with the executive. And it was also observed that the opinion of the Chief Justice does not have primacy, in the case of difference of opinion, it is for the central government to decide whose opinion should be accepted.
But the above-mentioned judgment was partly overruled by the supreme court in the case of Supreme Court Advocates on Record Association v. Union of India, where it was held that while appointing the judges of the supreme court the opinion given by the chief justice of India has to be formed taking into consideration with the views of two senior-most judges of the supreme court, and it was observed that the opinion of the Chief Justice of India has primacy in the matter of all appointments.
And In Re, Presidential, the Supreme court by expanding the number of judges in the collegium observed that the Chief justice of India should consult “ a collegium of four senior-most judges of the supreme court” and it was held that the sole individual opinion of the chief justice of India does not constitute consultation, the collegium system requires the consultation of the plurality of judges.
Thereafter the 99th Amendment Act, which provided for the establishment of the National Judicial Appointment Commission altered the appointment of the judges in the higher judiciary by bringing certain ministers in the procedure of appointment of the judges, however, the supreme court in Supreme Court Advocates on Record Association v. Union of India struck down the NJAC as unconstitutional and void as it was against the separation of powers and independence of the judiciary.
Conclusion :
The procedure which has been contemplated under our constitution ensures the independence of the judiciary. As far as the appointment of the chief justice of India is concerned a practice has been developed where the senior-most judge of the supreme court is appointed as the chief justice of India, however, this practice was broken twice in 1973 when A.N. Ray was appointed as CJI superseding three senior judges and in 1975 when justice M.H Beg was appointed superseding H.R.Khanna.
And now it is also clear from the above-discussed cases that the appointments are to be made by the CJI in consultation with senior judges of the supreme court
References:
1.Rajender Goyal, “Vital Significance of Procedure of Appointment, Transfer, and Removal of Judges in Securing the Independence of Higher Judiciary in India” (8th July 2018), available at https://www.proceeding.conferenceworld.in pdf., (Accessed on 26-09-21)
2. Mamta Kachwaha, “The judiciary in India: Determinants of its Independence and Impartiality” pp.21-33 ( PIOOM publishers, Netherlands .,1998
3. SP Sathe, “Appointment of judges; the issues” (Aug 1998), available at https://www.jstor.org/stable/4407068
4. Anurag deep and Shambhavi Mishra, “Judicial appointments in India and the NJAC judgment: formal victory or real defeat”, 3 Jamia law journal 2018
