Judiciary Appointments
| Brief History of the Supreme Court of India | 1. Regulating Act of 1773 established the Supreme Court in Calcutta
2. The Supreme Courts established at Madras in 1800 and Bombay in 1823. 3. The India High Courts Act 1861: a. Created High Courts for Calcutta, Madras and Bombay b. Supreme Courts at Calcutta, Madras and Bombay were abolished. c. Sadar Adalats established in Presidency towns. d. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act 1935. e. The Federal Court was established in 1937 which had jurisdiction to solve disputes between provinces and federal states and hear appeal against Judgements from High Courts. f. Highest court of appeal before independence was British Privy Council. g. The Supreme Court of India came into existence with its first sitting was held on 28 January 1950. |
| Constitutional provisions: | Supreme court:
Article 124 to 147 of Part V. High Court: Articles 214 to 231 in Part VI. District Courts: Article 233 to 237 in Part VI. |
| Number of judges in the supreme court |
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| Appointment of Judges | |
| Chief justice:
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Appointed By the president after consultation with –
a. such judges of the Supreme Court and b. high courts as he deems necessary. |
| Other judges: | Appointed by the President after consultation with –
a. the chief justice and b. such other judges of the Supreme Court and the high courts as he deems necessary. |
| Controversy over Consultation
The Supreme Court has given different interpretation of the word “consultation” in the above provision. |
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| First Judges case (1982) | · The Court held that consultation does not mean concurrence and it only implies exchange of views. |
| Second Judges case (1993) | · The Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues. |
| Third judges case (1998) | · When the president consults the CJI, the CJI gives his opinion in consultation with a collegium of 4 other judges. The opinion is binding on the president. |
| The fourth judges case (2015): | · The court has declared the NJAC as unconstitutional, and the collegiums system is reconstituted. (Supreme Court Advocates on Records Association Vs. Union of India case) |
| Transparency in the collegium decisions: | · The supreme court in 2017 October has decided to post all decisions on judicial appointments and transfers on its website to ensure transparency, seeking to tackle a point of friction with government. |
| Appointment of Chief Justice | · From 1950 to 1973: The practice has been to appoint the senior most judge of the Supreme Court as the chief justice of India.
· This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges. · Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior most judge. · Supreme Court in the Second Judges Case (1993) ruled that only the senior most judge of the Supreme Court should be appointed to the office of the chief justice of India. |
| 99th Amendment act 2014 and NJAC Act 2014 | |
| Article 124A: NJAC | (1) NJAC shall consists of
a. CJI as the chairperson (ex officio) b. Two other senior judges of supreme court next to the CJI as ex officio members c. Union minister of law and justice as ex officio member d. Two eminent persons nominated by the selection committee. · one of the eminent persons belong to SC or ST or OBC or Minority or Women · Eminent person shall be nominated for a period of 3 years · Eminent person shall not be eligible for reappointment. (2) Proceedings of the NJAC shall not be questioned or invalidated on grounds of any vacancy in the commission. |
| Selection Committee: | a. PM
b. Chief Justice of supreme court c. Leader of opposition in the loksabha |
| Article 124 B: Functions of the NJAC
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a) Recommend the appointment of –
i. Chief Justice of Supreme court ii. Judges of supreme court iii. Chief judges of High courts iv. Judges of the High courts b) Recommend transfer of chief justices and other judges of High courts. |
| Article 124 C: Power of Parliament to make law
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1. Parliament may by law regulate the procedure of appointment of the following judges –
a. CJI b. Judges of Supreme court c. Chief judges of high courts d. Judges of High courts 2. The parliament may also laydown the procedure for the discharge of the functions of the NJAC |
| NJAC Act 2014:
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· In accordance with the provisions of article 124C, the parliament enacted NJAC act in 2014 to implement the NJAC. |
| NJAC case:
Supreme court Advocates on Record Association vs. Union of India case: 2015
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1. The primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution
2. National Judicial Appointments Commission (NJAC) Act and 99th constitutional amendment are unconstitutional. 3. The Judges’ appointments shall continue to be made by the Collegium system in which the Chief Justice of India will have “the last word”. |
| Rejection to review the NJAC judgement | December 2018. The Supreme Court had rejected a petition filed by the National Lawyers Campaign for Judicial Transparency and Reforms seeking a review of its October 2015 ruling that declared the National Judicial Appointments Commission Act as unconstitutional. |
