Explained: How the Chief Justice of India is Appointed- UPSC Current Affairs

Probable Question 

Give an overview of the evolution of the collegium system for the appointment of judges in India. 

Context

Recently, a new Chief Justice of India (CJI) has been appointed. He will be the second CJI to have been appointed directly from the Bar, without serving as a judge of a high court.

Read yesterday’s edition of current affairs on Healthcare Services Under Ayushman Bharat for Transgender Persons, in case you missed reading it.

Qualification to be Appointed as the Chief Justice of India

• H/she should be an Indian citizen.
• H/she must fulfill any one of the following conditions:
  • Person must have been for at least 5 years a Judge of a High Court or 2 or more such Courts in succession.
  • Person must have been for at least 10 years an advocate of a High Court or of 2 or more such Courts in succession.
  • Person must be, in the opinion of the President, a distinguished jurist.

Appointments of the Chief Justice of India

• Articles 124(2) and 217 of the Constitution governs the appointment of judges, including Chief Justice, to the Supreme Court and High Courts respectively.
• The President of India appoints the Chief Justice of India and the other judges of the Supreme Court under clause (2) of Article 124 of the Indian Constitution. 
• As per Article 124, the appointments by the President are to be done “after consultation” with judges of the Supreme Court, as the President may “deem necessary”.
• As per Article 217 (the appointment of High Court judges), the President should consult the CJI, Governor, and Chief Justice of the High Court concerned for the appointments. 

Related article: Fundamental Rights in Indian Constitution

Evolution of the Collegium System for Appointment of Judges to the Supreme Court and High Court 

• Articles 124 and 217 suggest “consultation” from the judges for the appointment of the new judges.
• The word “consultation” remained at the center of debate between executive and judiciary on the executive’s power to appoint judges. 
• In practice, the executive held this power since Independence, and a convention of seniority was evolved for appointing the Chief Justice of India.
• The 1970s controversy: Although seniority has been preferred after the chief justice (in terms of the years served) is recommended as the successor, the former Prime Minister Indira Gandhi appointed Justice AN Ray as CJI in 1973 over his three seniors for a CJI.
• Current appointment system evolved in the ’80s and ’90s through a series of Supreme Court cases, known as First, Second and Third judges cases. 
  • First Judges Case (1981): 
    • The method of appointment had been challenged.
    • The court held that the recommendation made by the CJI to the President can be refused for “cogent reasons”. 
    • Thus the President or the executive would be in a more influential position in deciding appointments.
  • Second Judge Case (1993): 
    • The Collegium system was introduced by the Supreme Court.
    • Thus the recommendations for appointment are not solely based on CJI, but also on the institutional opinion, comprising two senior-most judges.
  • Third Judge Case (1998):
    • SC laid the guidelines for appointments and transfer, in which decisions are to be taken by a majority of the five senior most judges, thus leading to the present form of collegium system.

Recommendation and Appointment of Judges

• According to the government’s Memorandum of procedure for the appointment of Supreme Court Judges, seniority is to be the norm.
• The Collegium system that consists of 5 senior judges of the Supreme Court and the High Courts, is followed in the appointment of judges.
• The system suggests the name to the government.
• The name suggested, is further given for background inquiry to be done by the Intelligence Bureau (IB). 
• Although the government can also raise objections, usually the collegium’s will prevails. 
• The independence of the judiciary from the executive was to be guarded in matters of appointments.
• The retiring CJI also recommends for the next appointment of CJI to the Union Minister of Law, Justice, and Company Affairs.
• After the finalization of the collegium and outgoing CJI recommendation, the Law Minister will put up the recommendation to the Prime Minister (PM).
• The PM will then advise the President on the matter of appointment.

The Criticism of the Collegium System

• Transparency is the main issue with the collegium system. Judges will be appointed by the judges, it questions the accountability and transparency of the process. 
• The 230th report of the Law Commission of India submitted in 2009 pointed to the possibility of nepotism prevailing.
• An alternative in the form of the National Judicial Appointments Commission was suggested as a body for making appointments, comprising judicial as well as non judicial members. However it was struck down by the apex court. 

Tenure of a CJI

• The Indian Constitution has not provided any specific period regarding the tenure of the Chief Justice of India. 
• It is however believed that a judge of the Supreme Court may hold the office until the age of 65 years.
• A judge can also resign his office by writing to the President. 

Procedure for the Removal of Chief Justice of India (CJI)

• A Judge of the Supreme Court can only be removed by an order of the President passed.
• President order can be passed after an address by each House of Parliament supported by a majority of not less than two-thirds of the members of that House present and voting.
• The grounds of removal are proved misbehavior or incapacity.

News Source: The Indian Express

https://indianexpress.com/article/explained/explained-how-the-chief-justice-of-india-gets-appointed-8115493/

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