Sakshi
APPOINTMENT OF JUDGES IN SUPREME COURT AND THE PRESENT ELEVATION DIRECTLY FROM THE BAR
Sakshi Sharma 16 Sep 2021

APPOINTMENT OF JUDGES IN SUPREME COURT AND THE PRESENT ELEVATION DIRECTLY FROM THE BAR

APPOINTMENT OF JUDGES IN SUPREME COURT AND THE PRESENT ELEVATION DIRECTLY FROM THE BAR

 

The appointment of 9 judges in the Supreme Court on August 31 comes out as very significant as it is the biggest ever number of judges whose oaths are administered in one go. It further takes the strength of judges the Apex Court to 33. Chief Justice of India (CJI) administered the oath of office to the nine new judges including, 3 women to the Supreme Court of India.

 

HOW ARE THE SUPREME COURT JUDGES APPOINTED AND THE HISTORY OF THE COLLEGIUM SYSTEM?

The Constitution alludes to the procedure of appointment of judges to SC and HC’s under Article 124 and 217 respectively. Both the provisions enumerated under sub-section (2) to Section 124 and sub- section (1) to section 217 provides that, the President has the power to make the appointment of judges “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”.

What does the word consultation imply and whether the opinion of CJI in regard to appointment of judges to the SC and HC is entitled to supremacy?

The meaning of the word “Consultation” came for the consideration for the first time before the Hon’ble court in the case of UOI v Sankal Chand Himatlal Seth 1977[1]. It was observed that the requirement of consultation by the president from the CJI is a mandatory requirement for the appointment and transfer of judges. Consultation means full and effective consultation. For the full and effective consultation, it is necessary that the three functionaries must have full and identical facts on the basis of which they would be able to take a decision. However, the president has a right to differ from the them and take a contrary view.

In S.P Gupta v UOI 1982 (1st Judges Case), however the primacy was given to the executive in matter of appointment of judges. In case of conflict, the opinion of President would prevail over the CJI. The only ground on which this decision can be challenged is that, if it is based on mala-fide and irrelevant considerations. And for the purpose of Article 124(1) and 217(1) the word “consultation” doesn’t mean concurrence.

In a historic judgement of SC Advocates-On-Record Association V. UOI 1994(2ndjudges’ case) the aforementioned SP Gupta case was overruled by 7-2 majority and held that, in matter of appointment of judges the president is bound to act in accordance with the opinion of the CJI who would give his opinion after consulting his colleagues.

Thus, the executive element in the appointment process has been reduced to minimum and political influenced altogether was eliminated.

 

Again in 1999 the issue as to the expression “Consultation” arose in case of, In Re Special Reference No1 of 1998(3rd judges’ case). Then President invoked article 143 and referred the 2 main questions to the SC which related to consultation process; the issues being:

1-    Whether consultation requires the consultation with plurality of judges on formation of opinion of CJI?

2-    Or does the sole opinion of CJI constitute consultation?

The Apex court ruled that the CJI must consult a collegium of four senior most judges of the SC (4+1) when it comes to the appointment of SC judges and made it further clear that ‘if two judges give adverse opinion the CJI should not send the recommendation to the president. The collegium should make a decision in consensus and no recommendation should be made unless the collegium is in conformity.

While answering the reference made to the SC, it says that the expression “consultation” with the CJI in Article 217 and Article 222 requires “consultation with plurality of judges in the formation of the opinion of the CJI and the sole opinion of CJI does not constitute consultation” within the meaning of the said Articles.

Hence with this judgement SC laid down nine guidelines for the functioning of the Coram for the appointment and transfer of judges- this has come to be the present form of collegium and has been prevalent ever since.

 

After the 3rd Judges case by the 99th amendment act a new Article 124A was inserted which provides the composition of National Judicial Appointment Commission (NJAC) and NJAC Act 2014 was enacted, which raised the conflict as to interference of executive in matter of appointment of judges.

The validity of NJAC Act along with 99th amendment act was challenged in SC Advocate-on Record Association v. UOI 2016 (4th Judges Case)  the hon’ble apex court said that NJAC act negates the primacy of judiciary and giving more power in hands of the people who might not be from a legal background and these people have the power to override the decision of CJI and the collective decision of collegiums. Subsequently their involvement curtail downs the involvement of judiciary in the process, hence with this judgement the NJAC act was struck down.

 

Now the opinion of CJI in deciding the appointment of judges not only have the primacy but also is determinative in nature.

 

Significance of this Appointment

Currently the working strength of the Apex court after the recent appointments is 33 which leaves one vacancy and this is for the first time in the Supreme Court’s history that the oath taking ceremony was held at an auditorium and not the CJI’s Courtroom Number 1.The appointment of P.S Narsimha Rao the senior advocate is direct elevation from the bar. He has served as Solicitor general of India from May 2014 to December 2018 and represented the government of India in important cases related to the Italian Marine case, NJAC case relating to appointment of judges etc. He was earlier appointed by SC to resolve the dispute pertaining the administration of BCCI in India and he also appeared for some of the parties in Ayodhya case. As per the seniority, Justice Narsimha is in line to occupy the post of CJI from October 2027 to May 2028. Current elevations are regarded as significant as for the first time there would be 4 sitting women judges in the history of the SC. Also, in Justice Nagarathna, India may see its first woman CJI in the year 2027.

The Collegium comprising Chief justice NV Raman and Justices AM Khanwilkar, DY Chandrachud, U.U Lalit and L Nageswara Rao recommended these names on August 17 and on August 26, President notified the appointment accepting all the recommendations. Last it was in September 2019 when the appointment of judges to the Supreme Court was made.

 

 

 



[1]Union Of India vs Sankal Chand Himatlal Seth And .. on 19 September, 1977

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