The High Courts and The Supreme
Court of India are designated as the Higher court of India where judicial
appointments are made through multi-stage process and through structured
protocol designed to ensure the independent working of the judicial system.
Let's take a deep dive into how
judges are appointed.
There is various Constitutional
Framework or protocol that refers to the set of principles, procedures and provisions
laid down by the constitution of India for structuring and restructuring of the
powers and responsibilities of the Indian machinery like legislative and
Judiciary. Here are mentioned the list of constitutional framework for the
appointment of Judges at Supreme Court and at Various High Courts of the
country.
1.
Constitutional Framework
The appointment of judges is
governed by:
- Article 124
– Supreme Court Judges
·
Deals with the appointment of
Supreme Court judges.
·
The President appoints judges after
consultation with judges of the SC and HC as deemed necessary.
·
Specifies qualifications for SC
judges.
- Article 217
– High Court Judges
·
The President appoints High Court
judges.
·
Requires consultation with the Chief
Justice of India, the Governor of the state, and the Chief Justice of the High
Court.
·
Specifies qualifications for HC
judges.
- Article 222
– Transfer of Judges
The
President, after consulting the Chief Justice of India, can transfer a judge
from one High Court to another.
- Article 224
– Additional and Acting Judges
Allows
appointment of temporary judges to handle increased workload.
These articles establish the President
of India as the appointing authority, but the real power lies with the Collegium
System developed through judicial interpretation.
These help interpret and implement
the articles mentioned:
- Judicial Independence:
A basic feature of the Constitution; ensures that the judiciary remains
free from political or executive pressure.
- Checks and Balances:
Though the President appoints judges, the judiciary (via the Collegium)
has a major say, balancing executive power.
- Rule of Law:
Upholds that every action, including judicial appointments, must follow
legal procedures and constitutional mandates.
2. The Collegium System
What
is it?
The Collegium System is a
judicial innovation developed through three landmark judgments known as the Three
Judges Cases. It governs the appointment and transfer of judges.
- Supreme Court Collegium: Consists of the Chief Justice of India (CJI) +
4 senior-most Supreme Court judges.
- High Court Collegium:
Consists of the Chief Justice of the High Court + 2 senior-most
judges of that court.
3.
Appointment to the Supreme Court
Who
Can Be Appointed?
As per Article 124(3), a person is qualified
if:
- They are a High Court judge for at least 5 years, or
- An advocate in a High Court for at least 10 years, or
- A distinguished jurist (rarely used)
Appointment
Process:
- Collegium Recommendation: The SC Collegium recommends names based on merit and
seniority.
- Law Ministry Review:
For background checks and documentation.
- Prime Minister
forwards it to the President.
- President Appoints
the judge (has limited discretion).
4.
Appointment to High Courts
Who
Can Be Appointed?
As per Article 217(2), a person is
qualified if:
- They are an advocate of a High Court for 10 years, or
- A judicial officer in the Indian judicial service for
10 years
Appointment
Process:
- Initiation
by the High Court Collegium (Chief Justice + 2 seniors)
- State Government
inputs (Governor, CM) are sought.
- Supreme Court Collegium reviews and approves.
- Law Ministry
clears the proposal.
- President
appoints the judge.
5.
Transfers of Judges
- Done under Article 222.
- Initiated by the CJI and approved by the President.
- Aimed at maintaining the impartiality of judges and
preventing local influence.
6.
Memorandum of Procedure (MoP)
- A detailed procedural document, not codified in law,
but followed in practice.
- MoP guides the appointment process and is often revised
based on SC guidelines.
7.
Judicial Review & Transparency
- The Collegium system has been criticized for lack of
transparency and accountability.
- In 2015, the National Judicial Appointments
Commission (NJAC) Act was struck down by the SC for compromising
judicial independence.
Future
Insight of the Judicial System
The moment has come to consider a
permanent, independent organization that will institutionalize the process
while providing sufficient protections to maintain the independence of the
judiciary, ensuring judicial primacy but not judicial exclusivity.
It should guarantee autonomy; represent diversity, and exhibit honesty and
professional skill.
Rather of choosing the necessary number of judges based on a predetermined
number of openings, the collegiums must submit a list of potential candidates
for the President to choose from based on preference and other legitimate
factors.
Judges
of the Supreme Court and High Courts are appointed by the President, but on the recommendation of the judiciary itself through
the Collegium System, to
preserve judicial independence.
It is important for the essence
of judicial appointments in India — ensuring that the executive authority (President)
acts on the advice of the
judiciary, maintaining the separation
of powers and autonomy
of the judicial system.
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