APPOINTMENT OF JUDGES

1. About

• The Appointment of Judges of the Supreme Court and the High Court and the transfer of judges from one High Court to another had to be made by Articles 124, 217 and 222 of the Constitution of India. 
• Before the National Judicial Appointments Commission, the appointment of judges was made by the President in consultation with the Chief Justice and other judges. 
• Similarly, the transfers were made by the President in consultation with the Chief Justice. 
• Although it was not specifically provided for anywhere, the norm of seniority has always been followed in the appointment of Judges. 
• In August 1969, however, the elevation of Justice A.N. Ray to the post of Chief Justice of India created heated controversy when he was appointed as the Chief Justice of India superseding three senior judges. 
• The provisions of the Constitution dealing with the appointment and transfer of judges again came up for review in S.P. Gupta Vs. Union of India (First Judges Case). 
• The Collegium system, is now about 21 years old. 
• Thus the Collegium system of appointment became the law of the land and has been followed ever since. 
• The Collegium system was sought to be done away with right from 1990 with the 67th Constitutional Amendment Bill. 
• Thereafter it was followed by three more attempts. 
• Thereafter discussions took place and several recommendations were made by various committees emphasising the need for changing the collegium system. 
• Finally on 31st December 2014 the National Judicial Appointments Commission Act and the 121st constitutional Amendment Bill received presidential assent. 
• Supreme court nullified National Judicial Appointments Commission in Fourth Judges Case. 

• First Judges Case (1981)- It declared that the “primacy” of the Chief Justice of India (CJI) recommendation on judicial appointments and transfers can be refused for “cogent reasons.” 
• Second Judges Case (1993)- SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC. 
• Third Judges Case (1998)- SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues (for example for the transfer of HC judges). 
• Fourth Judges Case (2015)- The Constitutional Bench of the Supreme Court declared National Judicial Appointments Commission unconstitutional in 2015, citing that it violates the Basic Structure of the Constitution of India on the ground that it posed a threat to the independence of the judiciary. 

3. The development of the Seniority of judges

• It is decided based on the date of induction into the Supreme Court. A judge who takes oath earlier becomes senior to another who takes oath later. 
• In cases where warrants for the appointment of judges to the Supreme Court are issued by the government on different dates, the seniority is automatically decided by the dates of swearing-in by the CJI.
• There is no stated rule, whether in the current Memorandum of Procedure (MoP) or the draft MoP that is under finalization, to decide the seniority of judges whose warrants of appointment are issued on the same date. 
• As the warrants are issued by the government in a sequence, the practice has been for the CJI to administer the oath in the same order. 
• But the seniority principle has been strayed from thrice in the history of the Court. Some supersessions were marred by controversy and heavily criticized. 

4. Challenge in Judicial Appointment

• The lack of transparency and the absence of formal criteria have multiple worrying implications. Unnecessary delays by the government. 
• Presently, there is no structured process to investigate if a judge who is recommended by the collegium has any conflict of interest. 
• Prolonged delays in the appointment of High Court judges and depleting numbers in the higher judiciary threaten to affect the justice delivery mechanism 
• Lack of transparency 
• Embroilment in public controversies. 
• Overlooks several talented junior judges and advocates 
• There is a scope of nepotism 
• Lack of cooperation between Executive and legislature is stated by Hon. Chief Justice of India.