Procedure of the appointment of Supreme Court Judge

Procedure of the appointment of Supreme Court Judge

The appointment of Supreme Court judges in India, as outlined in Article 124 of the Constitution, is a process involving the President, the Chief Justice of India (CJI), and a collegium of senior judges, with the President ultimately making the appointment after considering the collegium's recommendations. 

Constitutional Basis:

Article 124 of the Constitution vests the power to appoint Supreme Court judges in the President. 

The Collegium System:

The Collegium, comprising the CJI and four senior-most judges of the Supreme Court, plays a crucial role in recommending names for appointment. 

Role of the President and the Chief Justice of India:

1. The President, while having the power to appoint, is expected to act on the advice of the CJI and the Collegium. 
2. The President is required to consult with other judges of the Supreme Court and High Courts, as deemed necessary, before making an appointment. 
3. The CJI is consulted in all appointments except his or her own, and the CJI's opinion is considered binding. 

Process to appoint the Supreme Court Judge:

1. The CJI initiates the process by proposing names for appointment. 
2. The CJI consults with the collegium, which then deliberates and makes recommendations. 
3. The recommendations are sent to the government, which forwards them to the President. 
4. The President, after considering the recommendations, appoints the judges. 

Criticisms and Challenges in the Process of Appointment of the SC Judges:

1. Lack of Transparency: The collegium system has been criticized for lacking transparency and accountability. 
2. Judicial-Executive Tussle: The relationship between the judiciary and the executive, particularly regarding appointments, has been a source of contention. 
3. NJAC Proposal: The National Judicial Appointments Commission (NJAC), proposed as an alternative to the collegium system, was struck down by the Supreme Court. 
4. Time Delays: The appointment process can be slow and time-consuming, leading to vacancies in the Supreme Court. 
5. Memorandum of Procedure (MoP): A Memorandum of Procedure (MoP) was established to streamline the appointment process, but it has been criticized for not being comprehensive enough. 

Case References for Appointment of Supreme Court Judges

1. First Judges Case (1981): S.P. Gupta v. Union of India 

Initially, the Supreme Court held that "consultation" in the appointment process did not mean "concurrence". 

The court stated that the Chief Justice of India's opinion on appointments and transfers could be rejected for "cogent reasons". 

2. Second Judges Case (1993): Supreme Court Advocates-on-Record Association v. Union of India 

Reversed the previous ruling and defined "consultation" as "concurrence". 

Established that the advice of the Chief Justice of India, after consulting with two senior-most colleagues, is binding on the President for Supreme Court appointments. 

3. Third Judges Case (1998): In re Special Reference 

Clarified that the consultation process should involve a collegium of the Chief Justice of India and four senior-most judges of the Supreme Court.