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Appointment of SC Judge (Relevant for GS Prelims, GS Mains Paper II; Polity & Governance)

Uttarakhand Chief Justice K.M. Joseph name not approved

Chief Justice of India Dipak Misra said the government was free to send back Uttarakhand Chief Justice K.M. Joseph’s name to the Supreme Court Collegium for re-consideration.

Indu Malhotra approved
Dismissing claims that the government had “cherry-picked” senior advocate Indu Malhotra for appointment as Supreme Court judge over Justice Joseph, Chief Justice Misra, heading a three-judge Bench, said it was “unthinkable, unimaginable, inconceivable” for the court to stay the presidential warrant for the appointment of Ms. Malhotra.

Reason for rejecting file
The government has already sent Justice Joseph’s file back to the Collegium for re-consideration. The grounds for returning the file include Justice Joseph’s relative juniority among High Court Chief Justices. The government has said he is the 42nd in the All-India High Court Judges Seniority List and there were 10 High Court Chief Justices senior to him. Besides, the government said, the Kerala High Court was too small a court to be represented by two Supreme Court judges. The Supreme Court already has Justice Kurian Joseph, the fifth senior-most judge and a Collegium member.

Lawyers’ plea
Barely an hour after the government communication to the CJI was made known, an urgent mention was made by 100 lawyers of the Supreme Court to stay the appointment of Ms. Malhotra. They said that though they were “solidly behind” Ms. Malhotra, they were equally anguished by the fact that she was cleared over Justice Joseph. The names of both Ms. Malhotra and Justice Joseph were recommended on January 11 by the Collegium. The Collegium had then recorded that there was no match for Justice Joseph in merit.

Procedure for appointment of Supreme Court Judge
Article 124(1) of the Constitution provides for 1 Chief Justice of India (CJI) and not more than 30 other judges subject to the law made by Parliament. Parliament prescribes the strength of Supreme Court judges to be 31.

Article 124(2): CJI shall be appointed by the President after consulting such number of Judges of Supreme Court and High Court as he/she may deem necessary for the purpose.

However, while appointing other judges of the Supreme Court, the President shall consult CJI and such other judges of Supreme Court and High Court as he may deem necessary for the purpose.

Similarly, Article 217 deals with the appointment of High Court judges. A High Court judge should be appointed by the President after consultation with the CJI, the Governor of the state, and the Chief Justice of the concerned High Court.

Criticism of the Constitutional Provisions Providing for Appointment of Supreme Court and High Court Judges

  1. The above provisions do not clearly specify the role of consultation in the appointment of judges, i.e., whether it is binding or not on the President.
  2. The above provisions do not state the exact number of judges. President is required to consult.

Emergence of Collegium System
Detailed role and composition of Collegium for the appointment of judges of Supreme Court and appointment and transfer of judges of High Court has been laid down by Supreme Court itself through two judgements:

Supreme Court Advocates on Record Association (SCARA) vs. Union of India (1993)
Under this case, the Supreme Court gave the following directions relating to the appointment of judges of Supreme Court and appointment and transfer of judges of High Court:

  1. President shall give primary consideration to the opinion of Chief Justice of India while appointing the judges, i.e., President is required to make appointments according to the opinion of CJI.
  2. The opinion of CJI is basically opinion of Judiciary expressed through CJI, i.e., CJI is required to consult other judges while giving opinion.
  3. President may, only with logical reasons, ask the CJI to reconsider his opinion.
  4. The whole process of consultation shall be in writing.
  5. While appointing judges, seniority principle (in terms of number of years served) should be followed.

Appointment of Judges Case (1998)
The Supreme Court has further clarified the process relating to appointment and transfer of judges in this case.

  1. While appointing the judges of the Supreme Court, CJI shall consult four senior most judges of the Supreme Court.
  2. While transferring a High Court judge, apart from consulting four senior most judges of the Supreme Court, CJI shall also consult the Chief Justice of High Court from where the judge is being transferred and the Chief Justice of High Court to where the judge is being transferred.
  3. While appointing the judges of the High Court, the CJI shall consult two senior most judges of the Supreme Court and the Chief Justice of the High Court concerned.
  4. In all the above cases, if next in line to become Chief Justice of India is not included then he too shall be included.
  5. If the President requires the CJI to reconsider the opinion, the same panel which made recommendations earlier shall be reconstituted.
  6. No opinion contrary to that of CJI shall be communicated to the President.
  7. Similarly, if two or more judges (other than CJI) give an adverse opinion, such opinion shall not be communicated to the President.

(Adapted from The Hindu and background from PrepMate-Cengage Polity book, Page 145)



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