2. • The judges of the Supreme Court are appointed by the President.
• The chief justice is appointed by the president after consultation with such judges of the
Supreme Court and high courts as he deems necessary.
• The other judges are appointed by the president after consultation with the chief justice and
such other judges of the supreme court and the high courts as he deems necessary.
• The consultation with the chief justice is obligatory in the case of the appointment of a
judge other than the chief justice.
3. CONSTITUTIONAL PROVISIONS RELATED APPOINTMENT OF JUDGES:
• Chapter IV of the Indian constitution deals with the Union Judiciary.
• Article 124 – Establishment and Constitution of Supreme Court.
• Article 124 A – National Judicial Appointment Commission.
• Article 124 B – Functions of Commission.
• Article 217 – Appointment and conditions of the office of a judge of a High Court.
4. APPOINTMENT OF JUDGES BEFORE FIRST JUDGES CASE:
• Until 1973, there existed a consensus between the Government of the day and the Chief
Justice of India. A convention was formed where the senior-most judge of the Supreme
Court was to be appointed as the Chief Justice of India.
• In 1973, A.N. Ray was appointed as the Chief Justice of India. This violated the convention
formed earlier since Justice A.N. Ray superseded three other Supreme Court judges senior
to him. Again in 1977, another chief justice was appointed who superseded his seniors.
This resulted in a clash between the Executive and the Judiciary.
5. PROPOSAL FOR CONSTITUTION OF A NATIONAL JUDICIAL COMMISSION
CONTAINED IN THE LAPSED CONSTITUTION (67TH AMENDMENT ) BILL, 1990.
In the year 1990, Sri Dinesh Goswami, the then Minister for Law and Justice introduced in
Lok Sabha a bill 67th Amendment Bill providing for the constitution of a national judicial
commission and making appointments to the Supreme Court and the High Court on the basis
of its recommendations. The object of the bill stated that said the amendment was to obviate
the criticisms of arbitrariness on the part of the executive in such appointments and transfers
and also to make such appointments without any delay. The bill proposed the introduction of a
new Part XIII A.
6. COLLEGIUM SYSTEM FOR JUDICIAL APPOINTMENT:
• Judges of the higher judiciary are appointed through the collegium system. The collegium,
consisting of the Chief Justice of India and the four senior-most judges of the Supreme
Court, decides on appointments, elevations, and transfers of Judges. The term "collegium"
is not mentioned in the Indian Constitution but has been established through judicial
pronouncements.
The following are the Judicial Pronouncements:
1.FIRST JUDGES CASE – S.P. GUPTA v. UNION OF INDIA.1982
2.SECOND JUDGE CASE- SUPREME COURT ADVOCATES ON RECORD
ASSOCIATION v. UNION OF INDIA. 1993
3.IN RE SPECIAL REFERENCE 1 OF 1998.
4.FOURTH JUDGES CASE – SUPREME COURT ADVOCATES ON RECORD
ASSOCIATION v. UNION OF INDIA.
7. • The case of SP Gupta v Union of India in 1981, often referred to as the ‘Judges’ Transfer
Case,’ is the foundation of the collegium system. Subsequently, in 1993, a second case
strengthened the implementation of this system across the nation and in 1998, a third case
addressed and clarified any existing loopholes within the system. In the fourth case in
2015, the Court took a decisive step by abolishing the National Judicial Appointment
Commission, which had previously assisted the President in the selection of judges for both
the Supreme Court and High Courts.
8. 1.S.P.GUPTA v. UNION OF INDIAAIR1982SC149
Author: P.N. Bhagwati
Bench: A.C. Gupta, D.A. Desai, E.S. Venkataramiah, R.S. Pathak, Syed M.
Fazal Ali, V.D. Tulzapurkar, P.N. Bhagwati
FACTS:
FACTS:
The first written request was submitted to the Bombay High Court by Iqbal Chagla and
others. The petitioners in this written petition were lawyers practising in the Bombay High
Court, and they had contested a circular dated March 18, 1981, that Shri Shiv Shankar,
Minister of Justice of the government, addressed to the Governor of Punjab and to the Chief
Minister of the other states. The second written request was issued by V.M. Objectives at the
Delhi High Court. The petitioner in this written petition is a high-ranking lawyer who works
in the Supreme Court, and he not only questioned the constitutional validity of the circular
issued by the Minister of Justice but also questioned the practice used by the central
government by appointing additional judges in various higher courts
9. The third written request was filed by J. L. Kalra and others at the Delhi High Court. The
petitioners in this written petition were lawyers practising in the Delhi Supreme Court and
prayed for a letter from mandamus to instruct the central government, an assessment of the
number of permanents required by the Delhi Supreme Court and additional judges.
The fourth written petition was submitted by S. P. Gupta to the Allahabad High Court.The
petitioner in this written petition was an attorney practising at the Allahabad High Court and
had filed this written petition for essentially the same contents of the written petitions of
Iqbal Chagla and V.M. Tarkunde, with only this difference that the allegations he made relate
to the appointment of additional judges to the Allahabad High court.
The fifth written petition was filed by Ms. Lily Thomas, an attorney practising on the
Supreme Court. What occasioned the filing of this writ petition was an order dated 19th
January 1981 made by the President transferring Mr. Justice M.M. Ismail, Chief Justice of
the Madras High Court as Chief Justice of the Kerala High Court with effect from the date he
assumed charge of his office.
10. The sixth petition in the lawsuit is filed by A. Rajappa, a lawyer practising on the Madras High
Court. This written request was originally filed with the Madras High Court in accordance
with Article 226 of the Constitution, and in this written request the petitioner questioned the
constitutional validity of the transfer orders approved by the President on January 19, 1981,
transferring Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice
of Kerala High Court and Justice K.B.N. Singh, Chief Justice of Patna High Court as Chief
Justice of Madras High Court.
The seventh lawsuit is filed by P. Subramanian, a lawyer practising on the Madras High Court.
The statements and sentences in this application for an order are essentially the same as in the
sixth application for an order submitted by A. Rajappa. The eighth application for a letter is
that from D.N. Pandey and Thakur Ramapati Sinha, two lawyers practising at the Patna High
Court. This written application was originally filed with the Patna High Court in accordance
with Article 226 and constituted the constitutional validity of the orders transferring M.M.
Ismail to the Kerala High Court and Chief Justice K.B.N. Singh to the Madras High Court.
11. Issues in question:
•Whether the correspondence is protected from judicial scrutiny under the provisions of the
Constitution of India and the Indian Evidence Act as cited by the respondents in their
arguments?
•Whether the disclosure of the correspondence is contrary to the public interest and would
lead to the injury of public interest?
•Whether the Petitioner had locus standi the matter despite the fact that their legal rights were
not injured by the circular letter?
•Who has the final voice in the appointment of the Judges?
•Whether the independence of the judiciary was affected by the circular letter of the law
minister?
12. DECISION
The Supreme Court of India rejected the government’s claim for protection against disclosure
and directed the Union of India to disclose the documents containing the correspondence. An
open and effective participatory democracy requires accountability and access to information
by the public about the functioning of the government. Exposure to the public gaze in an open
government will ensure a clean and healthy administration and is a powerful check against
oppression, corruption, and misuse or abuse of authority.
ABOUT THE LOCUS STANDI:
Where a legal injury is caused to a particular person or class of person as a result of the
constitutional violation of his rights or any burden is imposed as a contravention of law and
such person by reason of poverty, helplessness, disability, etc unable to approach the Court for
relief then any member of the public can apply for direction, order or writ in High Court
under Article 226 and in case of breach of fundamental rights, one can apply to Supreme
Court under Article 32. Hence the challenge of locus standi failed.
13. ABOUT COLLEGIUM AND CONSULTATION:
For the appointment of the Judges of the Supreme Court, the President is under compulsory
obligation to consult the Chief Justice of India along with such other Judges of the Supreme
Court or the High Court it deems necessary. Only which of such Judges are to be consulted is
left at the discretion of the President.
However, J. Bhagwati suggested for a collegium to make a recommendation to the President
for the appointment of the Judges of the Supreme Court and High Court.
14. 2.SUPREME COURT ADVOCATES ON RECORD ASSOCIATION v UNION OF INDIA
(1993) 4 SCC 441.
BENCH: Justice S. Ratnavel Pandian, Justice A.M. Ahmadi, Justice Kuldip Singh, Justice J.S.
Verma, Justice M.M. Punchi, Justice Yogeshwar Dayal, Justice G.N. Ray, Justice Dr A.S.
Anand, Justice S.P. Bharucha.
FACTS:
This writ was filed in the apex court for filling up the vacancies in the higher judiciary. This
writ petition was brought in to review the controversial judgment of S.P. Gupta v. Union of
India.
ISSUES:
1. Whether rendering advice relating to the appointment of judges under article 124 and 217
of the constitution is confined to the judicial functionaries?
2. Whether the opinion of CJI is entitled to have the right of primacy in the matter of
selection of judges to the Supreme Court as well as High Courts?
3. Whether the executive is bound by the advice and recommendation of the Chief Justice of
India in the process of consultation under 124 and 217 of the constitution?
15. DECISION:
The 9-judge bench, the judgment was delivered with 7 to 2 majority which overruled its earlier
decision in S.P. Gupta v. Union of India case and held that in issues regarding the appointment
of judges in the higher judiciary, the opinion of CJI must be given primacy in order to
minimize the executive influence in the judicial functions. The majority judgment was
delivered by Justice Verma on behalf of Ray, Anand, Dayal and Bharucjajj. while Kuldeep
Singh and S.R. Pandian delivered separate but concurring opinions and Ahmadi & Punchhijj.
gave the minority opinion.
Also discussed the the terms Consultation and concurrence.
The court overruled its decision of S.P. Gupta v. Union of India case and held that the largest
importance must be given to the recommendation of the CJI formed after taking into
consideration the opinion of 2 senior judges of the Supreme Court.
16. 3.In re Special Reference No 1 of 1998, AIR 1999 SC 1
Bench: S.P. Bharucha, M.K. Mukherjee, S.B. Majmudar, Sujata V. Manohar, G.T. Nanavati,
S. Saghir Ahmad, K. Venkataswami, B.N. Kirpal.
Article 143 of the Constitution of India confers upon the President of India the power to refer
to the Supreme Court for its opinion questions of law or fact which have arisen or are likely to
arise and which are of such a nature and of such public importance that is expedient to obtain
such opinion. In the exercise of the powers conferred upon by Clause (1) of Article 143 of the
Constitution of India, K.R. Narayanan, President of India, referred the following questions to
the Supreme Court of India.
(1)Whether the expression "consultation with the Chief Justice of India" requires consultation
with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does
the sole individual opinion of the Chief Justice of India constitute consultation within the
meaning of the said articles?
ANSWER:
The expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of
the Constitution of India requires consultation with a plurality of Judges in the formation of
the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of
India does not constitute "consultation" within the meaning of the said Articles.
17. 2. Whether the transfer of judges is judicially reviewable in the light of the observation of the
Supreme Court in the aforesaid judgment that "such transfer is not justiciable on any ground"
and its further observation mat limited judicial review is available in matters of transfer, and
the extent and scope of judicial review?
ANSWER:
The transfer of Judges is judicially reviewable only to this extent: that the recommendation
that has been made by the Chief Justice of India in this behalf has not been made in
consultation with the four seniormost Judges of the Supreme Court and/or that the views of
the Chief Justice of the High Court from which the transfer is to be effected and of the Chief
Justice of the High Court to which the transfer is to be effected have not been obtained?
18. 3) whether article 124(2) as interpreted in the said judgment requires the Chief Justice of India
to consult only the two seniormost Judges or whether there should be wider consultation
according to past practice?
ANSWER:
The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme
Court and to transfer a Chief Justice or Judge of a High Court in consultation with the four
seniormost Judges of the Supreme Court. Insofar as an appointment to the High Court is
concerned, the recommendation must be made in consultation with the two seniormost puisne
Judges of the Supreme Court.
(4) whether the Chief Justice of India is entitled to act solely in his individual capacity,
without consultation with other Judges of the Supreme Court in respect of all materials and
information conveyed by the Government of India for non-appointment of a judge
recommended for appointment?
ANSWER:
The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court, in respect of materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment.
19. (5) whether the requirement of consultation by the Chief Justice of India with his colleagues,
who are likely to be conversant with the affairs of the concerned High Court refers to only
those Judges who have that High Court as a parent High Court and excludes Judges who had
occupied the office of a Judge or Chief Justice of that Court on transfer from their parent or
any other Court;
ANSWER:
The requirement of consultation by the Chief Justice of India with his colleagues who are
likely to be conversant with the affairs of the concerned High Court does not refer only to
those Judges who have that High Court as a parent High Court. It does not exclude Judges
who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
20. (6) whether the government is not entitled to require that the opinions of the other consulted
Judges be in writing and that the same be transmitted to the Government of India by the Chief
Justice of India along with his views;
ANSWER:
The views of the Judges consulted should be in writing and should be conveyed to the
Government of India by the Chief Justice of India along with his views to the extent set out in
the body of this opinion.
(7) whether the Chief Justice of India is not obliged to comply with the norms and the
requirement of the consultation process in making his recommendation to the Government of
India;
ANSWER:
The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultation process, as aforestated, in making his recommendations to the Government of
India.
21. (8) whether any recommendations made by the Chief Justice of India without complying with
the norms and consultation process are binding upon the Government of India?
Recommendations made by the Chief Justice of India without complying with the norms and
requirements of the consultation process, as aforestated, are not binding upon the Government
of India
22. 4. SUPREME COURT ADVOCATES ON RECORD ASSOCIATION v. UNION OF INDIA.
AIR 2015 SC 5457
Bench: Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, Adarsh Kumar
Goel.
FACTS:
In 2015, the Supreme Court Advocates-on-Record Association and Senior Advocates filed writ
petitions before the Supreme Court challenging the constitutionality of the Ninety-ninth
Amendment and the NJAC Act.24 The petitions alleged, inter alia, that the NJAC violated the
basic structure of the Constitution by compromising the judiciary’s independence.
ISSUES RAISED BEFORE THE COURT:
There were broadly two issues in this case:
Whether the 99th Amendment Act 2014, was constitutionally valid?
Whether NJAC Act 2014, are violative of the separation of powers or not?
23. DECISION:
The Court by a majority of 4:1 struck down the 99th Amendment and consequently the NJAC
Act as unconstitutional and void. The majority including Justices Khehar, Lokur, Goel and
Joseph, held that the involvement of the executive in the appointment of judges impinged upon
the primacy and supremacy of the judiciary, and violated the principle of separation of powers
between the executive and judiciary which formed part of the basic structure of the
Constitution.
However, Justice Chelameswar in his dissenting opinion disagreed that the NJAC was
unconstitutional. He pointed out that though judicial independence formed a part of the basic
structure, there was an abundance of opinion that suggested that primacy to the opinion of the
judiciary was not the only way for establishing an independent and efficient judiciary and that
it was neither a norm nor a fundamental aspect of the Constitution.
