The Supreme Court collegium headed by Chief Justice D Y Chandrachud on Monday recommended the names of three high court chief justices as Supreme Court judges.
The collegium, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, recommended the names of Delhi High Court Chief Justice Satish Chandra Sharma, Rajasthan High Court Chief Justice Augustine George Masih and Gauhati High Court Chief Justice Sandeep Mehta as top court judges.
If cleared by the Centre, the top court will have the full strength of 34 judges.
The collegium in its resolution stated that the Supreme Court has a sanctioned strength of 34 judges and is currently functioning with 31 Judges.
Adish C Aggarwala, Senior Advocate and President of the Supreme Court Bar Association, while confirming the development to ANI, thanked Prime Minister Narendra Modi for accepting the recommendation of the Collegium of the Supreme Court for the appointment of three judges in 48 hours.
Delhi High Court Chief Justice Satish Chandra Sharma, Rajasthan High Court Chief Justice Augustine George Masih and Gauhati High Court Chief Justice Sandeep Mehta were recommended for elevation to the Centre for Supreme Court judges.
The Collegium, comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, said the Supreme Court has a huge backlog of cases and in view of the ever-mounting pendency of cases, the workload of judges has increased considerably.
"The Supreme Court has a huge backlog of cases. In view of the ever-mounting pendency of cases, the workload of judges has increased considerably. Bearing in mind the above, it has become necessary to ensure that the Court has full working judge strength, leaving no vacancy at any point in time. Bearing in mind the above, the Collegium has decided to fill up all the three existing vacancies by recommending names," the recommendation stated.
It stated that the Collegium deliberated on and discussed the names of Chief Justices and senior puisne judges of the High Courts eligible for appointment to the Supreme Court.
"Judgements authored by those falling in the zone of consideration for elevation to the Supreme Court were circulated among the members of the Collegium well in advance for a meaningful discussion on and assessment of their judicial acumen. The Centre for Research and Planning of the Supreme Court has prepared a compilation of relevant background material to assist the Collegium," it added.
Qualification required to become a judge of the Supreme Court
For a person to become a judge of Supreme Court he must be a citizen of India, and
- must have 5 years of experience as a judge in the High Court; It is not necessary here that this five year of experience must be in a ‘single’ High Court. It can be possible that a person has 2 years’ experience in some High Court and 3 years of experience in some other High Court; or
- must have 10 years of experience as an advocate in High Court; or
- is in the opinion of the president, a distinguished Jurist.
However, so far, not a single person has been appointed as a judge of the Supreme Court through the third condition. Most of the judges that have been appointed to the Supreme Court are on the basis of their “5 years experience as judges in the High Court”. And only eight persons have been able to be appointed as Supreme Court judge on the basis of their 10 years of experience as an advocate in the High Court. Out of those eight persons, Justice Indu Malhotra is the one who is currently a Supreme Court judge appointed on the basis of 10 years of experience as an advocate in the High Court. She is the only woman in this category.
Appointment of judges of Supreme Court
In order to understand the present ‘method’ use to appoint a person as a judge of the Supreme Court, we need to divide the period as follow
- procedure of appointment of Supreme Court judge before 99th amendment; &
- procedure of appointment of Supreme Court judge after 99th amendment
- current procedure of appointment of Supreme Court judge
- procedure of appointment of Supreme Court judge before 99th amendment; &
Before 99th amendment of constitution article 124 (2) which governs the appointment of Supreme Court judge states that “every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of High Court in the states as the President may deem necessary for the purpose”.
Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall be consulted.
This means that under article 124 (2), in appointing other judges of the Supreme Court, the president was bound to consult the Chief Justice of India as it may be clear by the words ‘shall be consulted’. But in appointing the Chief Justice of India he was not bound to consult anyone as the word ‘may’ used made it clear that it was not mandatory for the president to consult anyone.
However, till 1973 the senior-most judge of the Supreme Court was appointed as the ‘Chief Justice of India’. This practice had become a ‘convention’ and was followed by the president without any exception. But this practice was suddenly broken by the government when Justice A.N. Roy was made Chief Justice of India after superseding three senior judges of the Supreme Court i.e. Justice Shelat, Justice Hegde and Justice Grover. After this decision of the government, there went huge debate across the whole India that is there executive interference prevailing in the matter of appointment of a judge of the Supreme Court?
This question will be better answered through three judges’ case studies.
In S.P. Gupta v. Union of Indiawhich is popularly known as judges transfer case I. The Supreme Court after being agreed with its earlier decision was given in Sankalchand sheth’s case held again that word ‘consultation’ meant ‘mere consultation of views’ and it does not means ‘concurrence of views’ and thus the President is not bound to act in accordance with such consultation and has a right to take a contrary view.
This decision of the Supreme Court means that power of appointment of judges was “solely and exclusively” vested in the central government and other constitutional functionaries had merely a consultative role. Hence this case laid down the ‘executive supremacy’ in matters of appointment of Supreme Court judges.
Then came the Supreme Court Advocates on Record Association v. UOI: Judges transfer case II: In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgement given in the judge’s Transfer case I and held that in the matter of appointment of the judges of the Supreme Court and High Court, the Chief Justice of India should have primacy. The appointment of Chief Justice of India shall be on the basis of seniority but the greatest significance should be attached to the view of the Chief Justice of India formed after taking into account the views of two senior-most judges of the Supreme Court. It, thus, reduces to the minimum individual discretion of constitutional functionaries. So as to ensure that neither political bias nor personal favouritism nor animosity should play any part in the appointment of the Supreme Court judges. It is for this reason that the word ‘consultation’ instead of ‘concurrence’ was used in the constitution to indicate that the absolute discretion was not given to anyone neither to executive head nor judicial head.
The majority held that no appointment of any judge to the Supreme Court can be made unless it is in conformity with the opinion of the Chief Justice of India. This decision thus laid down the judicial Supremacy in the matter of appointment of judges of the Supreme Court.
After this came, the Judges transferred case III which was not a case but a ‘presidential reference’ raised by the president of India K.R. Narayana used his consultation power under article 143. The President had sought the Supreme Court’s clarification on the ‘collegium system’ as laid down in judges Transfer case II, following a controversy over the recommendation by then Chief Justice of India M.M. Punchhi.
In which, the Court held that the ‘collegium system’ requires consultation of the plurality of judges. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said articles. It was held that under Article 124(2), the Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme Court” and made it clear that if “two judges give an adverse opinion the Chief Justice should not send the recommendation to the government”. The opinion of the collegium must be in writing and the Chief Justice of India should send the recommendation to the President along with his own recommendations.
The Court also held that the President can send back the recommendation of ‘collegium system’ but if again the same name is proposed by ‘collegium’, the president is bound to accept it.
This is how the ‘collegium system’ developed gradually on the basis of Precedence established by three separate cases of the Supreme Court of India. The judges were appointed to the Supreme Court according to this system.
But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and 128 and also inserted article 129 A,124 B and 124 C changes were done in the procedure of appointment of judges of Supreme Court let’s see what changes were brought by 99th amendment of the constitution
Procedure after the 99th amendment of the Constitution
After this amendment, under article 124(2), every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission referred to in article 124 A.
NJAC, as provided by Article 124 (A), consisted of
- Chief Justice of India;
- two other senior judges of the Supreme Court;
- union law minister
- 2 eminent people’ to be nominated by the committee consisting of the prime minister, Chief Minister of India and the leader of opposition.
Thus, the 99th amendment act which brought NJAC held that the established wisdom of appointment of judges can be shared with the political executive. This was a huge change in the methodology used to appoint a Judge of the Supreme Court.
But thereafter, in Supreme Court Advocates on Record Association v. Union of India, the Supreme Court struck down NJAC act as ‘unconstitutional and void’. The Court declared that the ‘NJAC’ act altered the basic features of the constitution as it impairs the ‘independence of the judiciary’ and the ‘separation of powers’ by conferring arbitrary and uncharted powers on various authorities under the statute. Therefore, the amendment cannot be sustained. As a result of this discussion, the position as it stood prior to the constitution 99th amendment act i.e. ‘collegium system’ got revived.
The current procedure of appointment of Supreme Court judges
In Supreme Court Advocates on Record Association v. Union of India, the Court held that the ‘collegium system’ as it existed before NJAC, would again become operative. But the Court also ordered for the introduction of appropriate measures in order to improve the 21 years old ‘collegium system’ resultantly the memorandum of the procedure is brought into working i.e now ‘collegium system’ will work as per ‘MOP’.
- The MOP may indicate eligibility criteria such as the minimum age
- in order to bring transparency in the appointment process, the appointment procedure of judges as detailed in MOP ought to be made available on the website of the concerned Court
- The MOP may provide for the establishment of the secretariat for better management of’ collegium system’
- The MOP may provide for an appropriate mechanism to deal with complaints against anyone who is being considered for appointment as a judge
These were the broad suggestions that were given by the Court to enhance the ‘collegium system’ Till date, this mechanism is being followed to appoint judges of the Supreme Court.