Appointment of Judges

November 18, 2021

Syllabus: General Studies Paper 2

Context:

The transfer of Chief Justice Sanjib Banerjee from being at the helm at the Madras High Court, India’s fourth-largest court with a sanctioned strength of 75 judges, to the Meghalaya High Court with a sanctioned strength of only four has raised questions about transparency in transfer and appointment of judges.

CONSTITUTION

Articles 124(2) and Article 217- governs the appointment of judges to the Supreme Court and High Courts respectively. The President has the power to make the appointments 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.

Article 222- deals with the transfer of judges- The President may, after consultation with the Chief Justice of India (CJI), transfer a judge from one high court to another

APPOINTMENT OF JUDGES

Appointment of chief justice of India

The chief justice is appointed by the president strictly on the basis of seniority and outgoing CJI recommends his successor.
Supreme Court in second judges case ruled that senior-most judge of Supreme Court should alone the appointed to the office of chief justice of India

Judges of the supreme court

The judges of the supreme court are appointed by President in consultation with the chief justice and such other judges of the supreme court and high courts as the president made deem necessary
The consultation with chief justice is obligatory in case of appointment of judge other than the chief justice
Supreme Court in third judges case ruled that consultation process should include chief justice of India along with collegium of 4 senior-most judges of the supreme court
The court also held that the recommendations made by the chief justice of India without complying with the norms of the consultation process are not binding on the government

Appointment of chief justice of High Court

Chief justice is appointed by the president after consultation with the chief justice of India and the governor of the state concerned

Appointment of judges at the high court

Judges other than the chief justice of the concerned High Court are appointed by the president in consultation with the CJI, governor of the state and also the chief justice of the concerned high court.
In the third judges case, Supreme Court ruled that in the case of appointment of High Court judges, the chief justice of India should consult of two senior-most judges of the supreme court and that the sole opinion of the chief justice of India does not constitute the consultation process

RECALLING THE HISTORICAL CONTEXT (IMPORTANT CASES)

Suppression & transfer of judges in 1970s- There was supersession of multiple judges in the appointment of the Chief Justice of India & also the transfer of several High Court Judges.
Sankalchand H Sheth case

A five-judge bench of the Supreme Court interpreted Article 222 post-Emergency. The court held that the transfer of a judge from one court to another inflicts many injuries on the individual.
It noted that the consent of the judge proposed to be transferred as part of the scheme and language of Article 222.
The court also held that if the power of transfer is vested solely with the executive, it undermines judicial independence and eats into the basic features of the Constitution.

First Judges Case ( S P Gupta v Union of India,1981) — the Supreme Court ruled that the President does not require the “concurrence” of the CJI in the appointment of judges. The ruling affirmed the pre-eminence of the executive in making appointments.
Second Judges Case (Supreme Court Advocates-on-Record Association v Union of India, 1993)- a nine-judge Constitution Bench evolved the ‘collegium system’ for appointment and transfer of judges in the higher judiciary. The concurrence means- concurrence of the Supreme Court as an institution and is arrived at by the CJI including discussion with the two senior-most judges.
Third Judges case(1998)-The collegium was expanded to include five senior-most judges, including the CJI in the Third Judges Case in 1998.
K Ashok Reddy case(1994)-

The apex Court specifically dealt with the question of the transfer of judges of high courts.
The court observed that the absence of norms and guidelines in Article 222 seemed to be deliberate, as the power is vested in high constitutional functionaries.
It was also held that the power of transfer can be exercised only in the public interest for promoting better administration of justice throughout the country.
The court in this case also observed that primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process.
Hence, it is sufficient justification for the absence of the need for further judicial review of decisions, that is ordinarily needed as a check against possible executive excess of arbitrariness

NEED OF RE-EXAMINATION OF JUDICIAL APPOINTMENT PROCESS

Transparency & Accountability

The public has the right to know-As held in K Ashok Reddy Case, transfers are based on public interest. So, the public should have a right to know the reasons for such transfers as well.
Stakeholders involved-The material that is considered when a transfer of a judge is being deliberated should be shared with the concerned judge and all stakeholders

Larger good of the judicial institution

The notion of false means- When the judiciary misses no opportunity to uphold the basic structure doctrine and preserve at all cost its independence, there is a need for transparency in judicial functioning to dispel all notions of favouritism, bias or governmental interference.
Speculations- When reasons for transfer are not known, it leads to speculation that only inconvenient judges get transferred. This could be seen as degrading the work a judge is doing.

Reasonableness of the appointment

The Appointment of Judges by the Collegium system is opaque and lacks accountability on the part of the Judiciary.
The 2nd Administrative Reforms Commission observed that no other country in the world does the judiciary have a final say in its own appointments. In India, neither the executive nor the legislature has much said in who is appointed to the Supreme Court or the High Courts.

Pendency of cases

There was a lack of implementation, one of the major reasons for the vacancy in the courts & thus pendency of cases.

WAY FORWARD

International Practices-

No other country in the world leaves judicial appointments solely to the judiciary, there are several methods and balances to protect the Independence of the Judiciary.
In England, judges (other than the Supreme Court judges) are appointed on the recommendation of the Judicial Appointments Commission (JAC). It recommends names on merit by open competition and also has a specific statutory duty to ‘encourage diversity in the range of persons available for selection for appointments’.
In Australia, judicial commissions invite the “expression of interest” from the members of the Bar through public advertisements to enable the appointment of judges in a transparent manner.

Retirement age of High Court Judges

The 1st Law commission in its 14th report on ‘Reforms of the Judicial Administration’- recommends that the retirement age of the High Court judges should be increased to 65 years, the same as that of Supreme Court judges.
The age difference acts as a carrot and is exploited by the executive as well as some judges of the Supreme Court.
There are many instances of brilliant judges being ignored and not so worthy elevated.

All India Judicial Service

The Supreme Court issued a direction to establish IJS in All India Judges’ Association Vs Union of India. Conferences of the Chief Justices have repeatedly passed resolutions for establishing all India Judicial Service.

The Indian Express Link:

https://indianexpress.com/article/opinion/columns/theres-a-need-for-transparency-in-transfer-of-judges/

Question: What are the qualifications for appointment as a Judge of the Supreme Court? How is he appointed and how may he be removed?