The appointment of judges is a crucial process in maintaining the integrity and independence of the judiciary. In India, judges are appointed to various courts, including the Supreme Court, High Courts, and district/subordinate courts. Let’s explore the constitutional provisions, qualifications, and current practices related to judicial appointments.
Understanding Judicial Appointments in India
Constitutional Provision:
➡According to Article 124 of the Indian Constitution, every judge of the Supreme Court is appointed by the President after consultation with other judges of the Supreme Court and High Courts.
➡If the appointment is for a judge other than the Chief Justice of India, the Chief Justice must also be consulted.
Qualifications for Supreme Court Judges
To become a judge of the Supreme Court, one must meet the following qualifications:
➡Indian Citizenship
➡At least five years of experience as a High Court judge
➡A minimum of ten years as an advocate in a High Court or distinguished jurist status recognized by the President
Qualifications for High Court Judges
➡High Court judges are appointed as per Article 217 of the Constitution.
➡The President consults the Chief Justice of India and the Governor of the concerned state.
➡For appointments other than the Chief Justice, the Chief Justice of the respective High Court is also involved. High Court judges must meet the following criteria:
➡Indian Citizenship
➡At least ten years of judicial service in India or ten years as an advocate in a High Court
District and Subordinate Courts
➡Appointments to district judges are governed by Article 233 of the Constitution.
➡The Governor of the state, in consultation with the High Court, appoints district judges.
➡Qualifications include being a member of the state’s judicial service or having at least seven years of practice as a lawyer.
Current Appointment Process
Supreme Court:
➡The collegium model involves consultation with four senior-most judges. Recommendations go from the Chief Justice of India to the Union Minister of Law and Justice, then to the Prime Minister.
High Courts:
➡The collegium includes the Chief Justice of the High Court and two senior judges.
➡Recommendations are sent to the Chief Minister and Governor, and then to the Union Minister of Law and Justice.
Key Points
➡Seniority Matters: Seniority influences elevation to Chief Justice positions.
➡Relative Merit: Advocates’ relative merit is considered during appointments.
Historical Debate on the Issue of Appointment of Judges
14th Law Commission:
➡The 14th Law Commission Report under the chairmanship of M.C. Setalvad, India's first attorney general in 1958, emphasized strengthening consultation processes between the judiciary and the executive.
Three Judges Cases:
Later, a series of three judicial decisions popularly known as the Three Judges Cases helped in the development of the modern collegium system.
》The first Judges case (1981)
➡It gave primacy to the Executive and stated that the CJI's recommendation to the President can be refused for cogent reasons.
》Second Judges case (1993)
➡The Judgment held that the Chief Justice of India has primacy in the matter of appointments to the Supreme Court and the High Courts,
➡an appointment 'has to be in conformity with the final opinion of the Chief Justice of India', while emphasising the desirability of consultation of the Chief Justice with other Judges.
》Third Judges case (1993)
➡in 1998, the Supreme Court in a Presidential reference (1998 advisory decision) emphasised upon the role of 'consultation' and held that the process of appointment of Judges to the Supreme Court and the High Courts is an 'integrated participatory consultative process'.
➡The Chief Justice of India firms up his opinion after consultation with a plurality of judges; his opinion is formed by a body of senior Judges.
The National Judicial Appointments Commission (NJAC)
➡Appointments Commission (JAC). The JAC aims to replace the collegium system with a more formal body.
➡This Commission as proposed will be chaired by the Chief Justice of India and will have 2 senior Supreme Court judges, besides the Union Law Minister, the Law Secretary as its convenor, and two 'eminent persons' nominated by a 'collegium' comprising the Prime Minister, Leader of Opposition and the Chief Justice of India.
➡The National Judicial Appointments Commission (NJAC) was declared unconstitutional and void by the Supreme Court of India on October 16, 2015
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