Appointment Procedure of Supreme Court Judge

Recently gopal subramanium opted out from being appointed as supreme court judge after his name returned back to collegium for reconsideration invoking a controversy. In this light let us study in detail about procedure of appointment of judges.

Qualification for being appointed as Supreme Court Judge:
As per article 124(3) of the Constitution, In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at-least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.

Provisions also exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.

Procedure of Appointing Supreme Court Judge :

Article 124(2): Clause (2) of Article 124 of constitution inter alia says 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 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.”

Under our constitutional scheme, the President is the constitutional head. In exercise of the powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union Council of Ministers in the name of the President.

Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”. The Constituent Assembly debates show that when it was suggested by some of the members that the expression should be ‘concurrence’ and not ‘consultation’, it was not agreed to. Similarly, the suggestion to provide for approval of Parliament or its upper House - probably inspired by the U.S. Constitution – was also not agreed to by Dr. Ambedkar (see his speech in Constituent Assembly debates Vol.8 p.258).

Practice followed till 1981: A practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the position till 1981.

Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India (AIR 1982 SC 149), the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance tilted in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less. After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash. 

 In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were are recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system. One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the “cherished concept of independence.” It held at the same time that it was open to the executive to ask the Collegium to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment. Reaction to this judicial assertion of power have not been uniform.

In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted. 

The final position is that the Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court which recommends names for appointment as judge and  while it is open to the executive i.e The President to ask the Collegium to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his four colleagues reiterated the recommendation, the executive is bound to make the appointment. 

While opting out from appointment Mr. Subramanium said that in accordance with the highest traditions, when a lawyer was invited in to the Bench but doesn't get to become judge , the person ceases to practice in that court, until the incumbent Chief Justice demits office " I shall, therefore be resuming work at supreme court only thereafter" he said.

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