Judicial Appointments and Vacancies in India

Judicial Vacancies have been an issue in the Indian Judiciary for a long time now. Click here to read more on the UPSC Facts and Data for Vacancies in the Indian Judiciary.

Some Constitutional Provisions related to appoint of Judges

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

What is Collegium?

• The Collegium system of the Supreme Court (SC) and the High Courts (HCs) of India is based on the precedence established by the “Three Judges Cases (1982, 1993, 1998) “.
• It is a legally valid system of appointment and transfer of judges in the SC and all HCs.
• It is a system of checks and balances, which ensures the independence of the senior judiciary in India.

Evolution of the System:

First Judges Case (1981):

• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993):

• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

Third Judges Case (1998):

• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• It means that the SC collegium is headed by the CJI and comprises four other senior-most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by an HC collegium reach the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (MHA) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

The procedure followed by the Collegium:

Appointment of CJI

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

Other SC Judges

• For other judges of the top court, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• President appoints Judges of the Supreme court.

For High Court

• The Chief Justice and Judges of the High Courts are to be appointed by the President under clause (1) of Article 217 of the Constitution.
• The Chief Justices of HC are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Does the Collegium recommend transfers too?

• Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
• Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
• When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
• In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
• However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
• All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

Criticism of the Collegium System:

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.
• Attempts to reform the Appointment System:
• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

What is the news?

• The Chief Justice of India, N.V. Ramana, asked the Chief Justices of High Courts to ensure that recommendations for judicial appointments to the High Courts reflect the social diversity of the country.
• Chief Justice Ramana said this during his first-ever live and direct interaction with High Court Chief Justices. The discussion spanned two days and four sessions.
• The CJI also placed before the Chief Justices of High Courts the representations made by various Bar bodies to include lawyers primarily practising in the Supreme Court in the zone of consideration while recommending the names of judges for their High Courts
• The CJI also reminded the Chief Justices to expedite the process of filling up vacancies, particularly in the High Courts. This was a follow up to the letter the CJI had written to the CJs of High Courts in the first week of May.
• During the interaction, the Chief Justice of Madras HC told the CJI about the vaccine hesitancy seen in some areas of the State. The Chief Justice of the Madras High Court, however, conveyed his satisfaction with the cooperation given by the Tamil Nadu government in the vaccination drive.
• The session also saw the CJI convey to the Chief Justices his vision to draw from the experience of the pandemic and build modern, self-contained courts with a permanent facility to hold virtual hearings in every courtroom. He reiterated his wish to create a National Judicial Infrastructure Corporation and take forward a “nation plan” for judicial infrastructure.
• The High Court Chief Justices also flagged the apparent “digital divide” seen in rural and tribal areas. They said the lack of digital connectivity had impacted judicial functioning. A proposal for mobile video conferencing vans was discussed. Chief Justice Ramana assured the High Courts that the Supreme Court would take up with the Centre the highlighted issues regarding sufficient vaccine supply, connectivity and court infrastructure.