ORGANISATION OF SUPREME COURT

According to article 124 (1), the Supreme Court is comprised of Chief Justice of India and 7
other judges. However, Parliament by law may increase the number of judges. As per the
Supreme Court (Number of judges) Amendment Act, 2008, the court is comprised of Chief
Justice of India and not more than 30 judges.

APPOINTMENT OF JUDGES
Under article 124 (2), the President appoints Chief Justice of India after consulting as many
Supreme Court and High Court judges as he may think fit. While appointing a judge other than
Chief Justice of India, he shall consult Chief Justice of India.

Under article 217 (1), the President appoints Chief Justice of High Court after consulting Chief
Justice of India and the Governor of the state. While appointing a judge other than Chief Justice
of High Court, he shall consult Chief Justice of High Court.

Under article 222 (1), the President has power to transfer a High Court judge in consultation with
the Chief Justice of India.

The meaning of the term ‘Consultation’ has been debated resulting in the following judicial
pronouncements which are also known as Judges Cases.

First Judges Case/ S.P. Gupta v/s Union of India, 1982: A seven Judges Constitution bench
ruled that the President is not bound by the opinion expressed by the Chief Justice of India as the
Constitution required him to only consult the Chief Justice and consultation does not mean
concurrence. However, consultation can be full and effective requiring the President to furnish
all the material details under consideration so as to enable the Chief Justice to form an informed
opinion. However, the President is not bound by the same. It was also ruled that a judge can be
transferred against his will.

Second Judges Case (Supreme Court Advocates-on-record Association v/s Union of India,
1993)

A nine judges bench of Supreme Court over ruled its previous decision and pronounced that the
opinion of the Chief Justice is finally binding on the President. However, the opinion of the
Chief Justice of India shall not be his personal opinion instead the opinion of judiciary
formulated in consultation with 2 senior most judges of the Supreme Court, who shall constitute
the Collegium. Within the collegium, the opinion of the Chief Justice of India shall have
primacy. The President has power to send an opinion back to collegium for reconsideration with
cogent reasons recorded and the Chief Justice shall initiate consultation afresh and afterwards if
he reiterates the recommendations, the President is bound by it.

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Appointment of Judges, it was held, is an integrated participatory consultative process to select
the best and the most suitable person for appointment as judges. In this exercise, both executive
and judiciary have a complementary role to play. It was also ruled that as far as possible,
seniority principle shall be the guiding criterion while appointing the Chief Justice of India.

Special Reference No.1 of 1998 : In response to a Presidential reference under article 143, a 9
judges bench was constituted to clarify the 1993 decision and they pronounced the law in
following terms.
 The Chief Justice of India shall consult 4 senior most judges instead of 2 while
appointing the Supreme Court judges and transferring High Court judges. While
appointing High Court judges, the Chief Justice of India should consult only 2 senior
most judges.
 If, at any point of time, it is known that none of the judges in the collegium is likely to
succeed the Chief Justice of India, then the judge who is likely to succeed the Chief
Justice under the seniority principle shall also be included in the collegium.
 Though the opinion of the Chief Justice of India shall continue to have primacy, if 2 or
more judges of collegium oppose a proposal, the Chief Justice shall recommend the
same. However no opinion unsupported by the Chief Justice shall be recommended on
behalf of Collegium.
 While making an appointment in relation to a High Court, Chief Justice of India shall
also consult the senior most Supreme Court Judges who are conversant with the affairs of
the High Court on account of them having served the High Court in the past (These
judges are often known as consultee judges)
 While transferring High Court judges, the Chief Justice of India shall consult the Chief
Justice of High Court which are parties to the transfer and these Chief Justices shall
formulate their opinion in consultation with 2 senior most judges of their courts so that
the opinion tendered to the Chief Justice of India shall be the opinion of the concerned
high court.
 If the procedure stipulated is not followed, then the President is not bound by such a
recommendation.
 Judicial Review also is available in case of non-compliance of procedure.

The Constitution (99 Amendment) Act, 2014.

1. Article 124 (2), article 217 (1) and article 222 (1) were amended to replace the word
‘consultation’ with ‘[on the recommendation of NJAC referred to in article 124(A)]’.

2. Article 124 A was inserted in the Constitution. Under article 124 (A) (1), there shall be
National Judicial Appointments Commission consisting of,
 The Chief Justice of India as the ex-officio chairperson.
 2 senior most judges next to the CJI as members ex- officio.
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  Union minister for law and justice as ex-officio member.
 2 eminent persons nominated by a committee comprising of Prime Minister,
leader of opposition and the Chief Justice of India, for a non- renewable term of 3
years as ex-officio members.

3. Article 124 B was added by which the duty of the commission was prescribed which
included the power to recommend names for appointment of Chief Justices and judges of
Supreme Court and High Court, as well as to recommend the transfer of high court
judges.
4. Article 124 C was added by which the Parliament was given the power to regulate the
proceedings of NJAC by enacting law.

5. Article 127, article 128, article 224 and article 224 (A) were amended to enable NJAC to
recommend the appointment of ad-hoc judges in the Supreme Court, attendance of retired
judges in the Supreme Court, appointment of additional and backing judges of high court
and attendance of retired judges in high court respectively.

6. NJAC Act was also simultaneously passed under article 124 (C).

Fourth Judges Case/ Supreme Court Advocates on record Association v/s Union of India,
2015: The court ruled that any change made to Article 124 (2), article 217 (1) and article 222 (1)
shall comply with the Law of Primacy of the opinion of the judiciary as pronounced in 1993
because it is integral to the independence of judiciary which is a part of basic structure.

Article 124 (A) formed the constituent of all changes made under the Constitutional (99 th
amendment) Act, 2014. If Article 224 (A) is rendered unconstitutional, the entire amendment act
would have been unconstitutional.

Article 124 (A)(a)(b) are unconstitutional as they provided for the judicial component of NJAC
which is comprised of 3 members out of 6 members commission. Hence, it is violative of Law of
Primacy of opinion of judiciary.

Article 124 (A) (1) (c) is unconstitutional as it provided for union law minister who represents
Union of India which happens to be the largest litigant. Allowing litigant to hand pick judges is
unconstitutional.

Article 124 (A) (1) (d) is unconstitutional as the term eminent persons is vague, leaving open the
possibility of persons having no eminence in law/ judicial affairs getting appointed as members
of NJAC and hence unconstitutional.

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