Current Affairs

Issue

Justice Sudhanshu Dhulia and Justice Jamshed Burjor Pardiwala were appointed as Supreme Court judges.

 

Background

The appointment has allowed Supreme Court to gain its full strength of 34 judges.

 

Details

Clause 2 of Article 124 of India’s Constitution has provisions for appointing judges to the Supreme Court of India.

 

Criteria

• The person must necessarily be a citizen of India

• He/she must have either been a judge of a High Court or two or more such courts in succession for at least five years or

• He/she must have been an advocate of a High Court or of two or more such courts in succession for at least ten years or

• He/she should be a distinguished jurist in the opinion of the President

 

Process

• The CJI makes decision on the appointment based on consultation with a collegium of the four senior-most judges of the Supreme Court.

• The CJI’s successor will be made a part of the Collegium. The opinion of Collegium member who may have worked in the same High Court will be considered.

• The opinion of members on recommended candidates will be given in writing and made part of the record.

• The opinion of the senior-most judge of the Supreme Court from the same High Court as the tentative candidate is also included.

• The opinions are sent to the Union Minister of Law, Justice and Company Affairs. The minister presents them to the Prime Minister, who recommends the name to President of India for appointment.

 

Post appointment

• Once appointed, the secretary of Department of Justice informs the CJI and obtains a certificate of physical fitness from the appointed judge.

• Once the President of India signs warrant of appointment, the secretary announces the appointment of the judge. A notification is issued in the Gazette of India.

Issue

The largest ever number of nine judges took oath as Supreme Court judge. The list also involves three women judges.

 

Background

This is the first time that court will have four women judges serving at a same time. Till now only eleven women judges have served in Supreme Court.

 

Details

• Appointment of judges to Supreme Court and High Courts are governed by Articles 124(2) and 217 of the Constitution respectively.

• The President appoints the judges after consultations with the judges of the Supreme Court and of the High Courts as necessary.

• Since the independence, the appointment of judges was done by executive. The Chief Justice was appointed based on seniority as a convention.

• The situation changed in 80’s when a series of cases changed the nature of appointment. The judiciary gave itself the powers to appoint the judges.

 

The cases

• In 1973, three senior judges were superseded to appoint Justice A N Ray as the CJI. This started a tussle between judiciary and executive.

• The three “Judges case” were the basis of change in nature. The first judge case of 1981, second judge case of 1993 and third judge case of 1998 were recorded.

• The group of judges helmed by the CJI would recommend the names to the President, who would approve it after due considerations.

 

First judge case

The concurrence of the CJI is not needed for the President in appointment of judges. It was highlighted in S P Gupta v Union of India (1981). The ruling was overruled in second judge case.

 

Second judge case

• A Supreme Court bench ruled that it was required to maintain the independence of the judiciary from the executive and protect its integrity.

• The case was Supreme Court Advocates-on-Record Association v Union of India (1993). The bench also formulated the ‘collegium system’ for appointment and transfer of judges in the higher judiciary.

 

Third judge case

• The third judge case was based on a reference made by President KR Narayanan regarding the meaning of the term “consultation” while appointing judges.

•  The doubt was regarding whether the term ‘consultation’ meant the sole opinion of the CJI or the collegium.

• The ruling said that a quorum and majority vote in the collegium was required to make recommendations to the President.

 

Process of collegiums

• The collegium system is multi-step process that has limited accountability even regarding the timeline of appointing new judges.

• The process is started by the HC collegium and the file then moves to the state government, the central government and then to the SC collegium after intelligence reports are available on the candidates recommended