Organization of Supreme Court

Organization of Supreme Court

Appointment of SC Judges: Controversies
Appointment of SC Judges: Controversies

Article 124 deals with the establishments and Constitution of Supreme Court of India. The original Constitution had the provision to have a chief Justice of India and seven other judges, but with the enactment of the Supreme Court (number of judges) Amendment Act, 2008 (notification in 2009), the number of Supreme Court Judges has been increased from twenty-six to thirty-one, including the Chief Justice of India.

  Appointment of the Judiciary

As per Article 124(2), every Judges of the Supreme Court shall be appointed by the President, by warrant, under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and holds office, until he attains the age of 65 years. In the case o appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Appointment of the Chief Justice of India

For the appointment of the Chief Justice of India (CJI), over the years, a convention had developed whereby the senior most Judge of the Supreme Court was appointed as the Chief Justice of India. This convention was however broken twice. In 1973, AN Ray was appointed as CJI superseding three senior Judges.

Again, Justice MH Beg was appointed superseding Justice HR Khanna (1975). The other Judges of the Supreme Court and the High Court are appointed by the President after consulting the Chief Justice of India (CJI). For This, the Supreme Court has come up with a novel procedure-

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It has suggested that the Chief justice should recommend names of persons to be appointed in consultation with four senior-most Judges of the Court and if two of the four disagreed on some name, it could not be recommended. In effect, decisions were to be taken by consensus where the chief and at least three of the four had to agree.

Appointment of SC Judges: Controversies

Thought the SC judges are appointed by the President, post-1993, the SC has held that such judges shall be appointed by the President as recommended by a collegiums of Judges. The president can be tracked as follows.

  • In the SP Gupta Case of 1982 the First Judges Case, the SC held that the President is the final authority to appoint the Judges of the SC and he may only hold consultation with the CJI for such appointments. This means that the appointments were determined by the Union Executive.
  • However, in 1993, in the Second Judges Case, the SC overturned the above ruling and held that the President must act according to the consultation process held with the CJI and only such nominees can be appointed. The SC also constituted a collegiums of CJI and Two senior most judges for this Purpose.
  • In 1997, in the Third Judges Case, he SC upheld the above ruling with a modification that the collegiums would now consist of four senior-most Judges and the CJI. The CJI was though accorded the primary of opinion, but he/she could not act against the majority opinion of the collegium.   
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