The standoff between Executive and Judiciary

Context: Law Minister Ravi Shankar Prasad said there is no stand-off between the Executive and the Judiciary over appointment of High Court judges and whenever a difference of opinion arises, it is mutually reconciled to ensure only a suitable person is appointed as a High Court judge.

Analysis

Procedure for appointment of the Chief Justice of India   , judges of the SC & HC

  • The Chief Justice of India and the Judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.

CHIEF JUSTICE OF INDIA :

  • Appointment to the office of the Chief Justice of India should be of the seniormost 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.
  • Whenever there is any doubt about the fitness of the seniormost Judge to hold the office of the Chief Justice of India, consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for appointment of the next Chief Justice of India.
  • After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment.

Judges of SC

  • Whenever a vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of India will initiate proposal  and forward his recommendation to the Union Minister of Law, Justice and Company Affairs to fill up the vacancy.
  • The opinion of the Chief Justice of India for appointment of a Judge of the Supreme Court should be formed in consultation with a collegium of the four seniormost puisne Judges of the Supreme Court.
  • If the successor Chief Justice of India is not one of the four seniormost puisne Judges, he would be made part of the collegium as he should have a hand in selection of Judges who will function during his term as Chief Justice of India.
  • The Chief Justice of India would ascertain the views of the seniormost Judge in the Supreme Court, who hails from the High Court from where the person recommended comes, but if he does not have any knowledge of his merits and demerits, the next seniormost Judge in the Supreme Court from that High Court should be consulted.
  • The opinion of members of the collegium in respect of each of the recommendations as well as the seniormost Judge in the Supreme Court from the High Court, from which a prospective candidate comes, would be made in writing and the Chief Justice of India, in all cases, must transmit his opinion as also the opinion of all concerned to the Government of India as part of record.
  • After receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendations to the Prime Minister who will advise the President in the matter of appointment
  • As soon as the warrant of appointment is signed by the President, the Secretary to the Government of India in the Department of Justice will announce the appointment and issue the necessary notification in the Gazette of India.

Appointment of acting Chief Justice of India

  • Vacancy in the office of the Chief Justice must be filled whatever the period of vacancy.
  • In such an eventuality, the seniormost available Judge of the Supreme Court will be appointed to perform the duties of the office of the Chief Justice of India.
  • Appointment of acting Chief Justice is to be made by the President under Article 126 of the Constitution

Appointment of ad hoc judges :

  • Article 127 of the Constitution provides that if at any time there should not a quorum of Judges of the Supreme Court available to hold or continue any session of the Court the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court  concerned  request,  in  writing,  a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to attend, for such period as may be necessary, the sittings of the Supreme Court.
  • Whenever the necessity for such an appointment arises, the Chief Justice of India will consult the Chief Justice of the High Court concerned whether a Judge is available to attend the sittings of the Supreme Court.
  • The Chief Justice of the High Court will communicate his consent to the release of a particular Judge after consulting the Chief Minister of the State in which the High Court  is situated.
  • The Chief Justice of India will then communicate to the Union Minister of Law, Justice and Company Affairs the name of the Judge and the period for which he will be required to attend the sittings of the Supreme Court, certifying that the release of the Judge has been agreed to by the Chief Justice of the High Court concerned and the Chief Minister of the State.
  • The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister, who will advise the President as to the person to be appointed to attend the sittings of the Supreme Court.
  • As soon as the President gives his consent to the appointment, the Secretary to the Government of India in the Department of Justice will 

    (i) inform the Chief Justice of India, who will formally request the Judge concerned, in writing, to attend the sittings of the Supreme Court as an ad hoc Judge and 

    (ii) announce the appointment and issue the necessary notification in the Gazette of India.

Events in past

  • The Supreme Court Collegium, led by Chief Justice of India had recommended the names of two judges to the court and rejected the government’s disapproval of the elevation of two others.

Essentials

What is the Collegium system of appointing judges to the High Court and Supreme Court?

  • The Collegium 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.
  • The Constitution confers the power of appointment of judges on the President of India i.e. the Government of India to be made in consultation with the Chief Justice of India and other judges of the Supreme Court and the High Courts.
  • The Supreme Court Collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court.
  • A High Court Collegium is led by its Chief Justice and four other seniormost judges of that court.
  • Names recommended for appointment by a High Court Collegium reaches the government only after approval by the CJI and the Supreme Court Collegium.
  • Judges of the higher judiciary are appointed only through the Collegium system — and the government has a role only after names have been decided by the Collegium.
  • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • It can also raise objections and seek clarifications regarding the Collegium’s choices, but if the Collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
  • This system of appointments emerged out of three rulings of the Supreme Court collectively passed known as the Three Judges Caseculminating in the historic Supreme Court Advocates-on-Record Association Vs Union of India 1993 judgement.
  • In its landmark 1993 judgment, the apex court held that the independence of the judiciary, which is part of the basic structure of the Constitution, was being undermined by the primacy of the executive in key appointments.

First Judges Case: Primacy of the Chief Justice of India (CJI) was not really to be found in the Constitution.

  • In the First Judges Case (1981), the apex court held (4-3) that in the appointment of a judge of the Supreme Court or the High Court, the word “consultation” in Article 124(2) and in Article 217(1) of the Constitution does not mean “concurrence”.
  • In the event of a disagreement, the “ultimate power” would rest with the Union Government and not the CJI.
  • The First Judges Case, therefore, was an instance where the apex court acted against its own interests.

Second Judges Case: A specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.

  • In the Second Judges Case (1993), the court (7-2) overruled the First Judges Case, holding that in the event of conflict between the President and the CJI with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy, but would be determinative in the matter. Thus, the President’s recommendation were made non-binding.
  • The 1993 verdict also gave birth to the Collegium System. This was the collection of the CJI and the two most senior judges of the SC or the HC, depending on the case.
  • What this did was in effect “moderate” the CJI’s powers when it comes to the appointment of judges.

Third Judges Case: Recommendation should be made by the CJI and his four seniormost colleagues, instead of two.

  • Finally, in the Third Judges Case (1998), the SC reaffirmed its 1993 judgement and expanded the Collegium to include the CJI and the four most-senior judges of the court after the CJI.

What does the Constitution says?

  • The procedure listed in the Constitution for judicial appointments comes under Articles 124(2) and 217.
  • 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 the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
  • “Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted,” says Article 124(2).
  • “Every Judge of a High Court shall 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 High Court,” says Article 217.

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