FACULTY OF LAW

BA(HONS) LLB

GCT-II ASSIGNMENT

CONSTITUTIONAL LAW-III
Appointment of Judges of the Supreme Court
Under Article 124 of Indian Constitution
With reference to present case studies

Submitted to- Prof. Mohammed Tariq

Submitted by- Fathima Hiba Parambil Peedika

Date of Submission 29th March 2022

I am highly grateful to my Professor of Law of Constitution Law as well as Dean of Faculty of Law, who
left no stones unturned in arranging the classes and assignments for us. I am obliged to have this
opportunity to make an assignment on the topic – Appointment of Judges of the Supreme Court Under
Article 124 of Indian Constitution- With reference to present case studies. It was a very exciting
and learning experience, and I learned about various new facts regarding it.

Thank you to my friends and family who helped me in completing this within time.
 TABLE OF CONTENTS

o Introduction

o Supreme Court: Composition

o Judge of SC: Qualification

o Judge of Supreme Court: Appointment

o The current procedure of appointment of Supreme Court judges

o Conclusion

o References
 INTRODUCTION

Judiciary is an important organ of the Government and in a constitution, which provides separation of
powers between the centre and the state and an independent Judicial System, the role of Judiciary
becomes much more crucial. Since our Constitution was enacted, the Judiciary has performed a vital role
in interpreting and protecting the Constitution whenever any dispute has arisen. Hence it is a powerful
organ of the government. The Supreme Court of India is, in fact, one of the very powerful Courts in the
world. It is the final arbitrator in a dispute arising between the centre and the states or the state inter-se.
It is also the final interpreter and guardian of the Constitution as well as the fundamental rights of the
people. It is also the highest and final interpreter of the general law of the country. It is the highest
appellate Court in civil and criminal matters.

Since the Supreme Court has such vast power and functions, therefore judges who sit in the Supreme
Court have huge responsibilities on their shoulders hence, they must be appointed through a just and fair
process without any bias so that working of the Supreme Court can be carried out in an efficient manner.
 S U P R E M E C O U R T: C O M P O S I T I O N

Under article 124 of Indian Constitution which provides for ‘Constitution and establishment of S.C.
‘clause (1) states that the Supreme Court of India comprises a Chief Justice and another number of judges
as Parliament by law prescribes.

Originally, the other number of judges were ‘seven’ excluding the Chief Justice of India. Presently, the
total number of judges in the Supreme Court are 34 including the Chief Justice of India.

J U D G E O F S U P R E M E C O U R T: Q U A L I F I C A T I O N

For a person to become a judge of Supreme Court he must be a citizen of India, and

1. must have 5 years of experience as a judge in the High Court; It is not necessary here that this five year
of experience must be in a ‘single’ High Court. It can be possible that a person has 2 years’ experience
in some High Court and 3 years of experience in some other High Court; or
2. must have 10 years of experience as an advocate in High Court; or
3. is in the opinion of the president, a distinguished Jurist.

However, so far, not a single person has been appointed as a judge of the Supreme Court through the
third condition. Most of the judges that have been appointed to the Supreme Court are on the basis of
their “5 years experience as judges in the High Court”. And only eight persons have been able to be
appointed as Supreme Court judge on the basis of their 10 years of experience as an advocate in the High
Court. Out of those eight persons, Justice Indu Malhotra is the one who is currently a Supreme Court
judge appointed on the basis of 10 years of experience as an advocate in the High Court. She is the only
woman in this category.

J U D G E O F S U P R E M E C O U R T: A P P O I N M E N T

Before 99th amendment of constitution article 124 (2) which governs the appointment of Supreme Court
judge states that “every judge of the Supreme Court shall be appointed by the president by warrant under
his hand and seal after consultation with such of the judges of the Supreme Court and of High Court in
the states as the President may deem necessary for the purpose”.
Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India
shall be consulted.

This means that under article 124 (2), in appointing other judges of the Supreme Court, the president was
bound to consult the Chief Justice of India as it may be clear by the words ‘shall be consulted’. But in
appointing the Chief Justice of India he was not bound to consult anyone as the word ‘may’ used made
it clear that it was not mandatory for the president to consult anyone.

However, till 1973 the senior-most judge of the Supreme Court was appointed as the ‘Chief Justice of
India’. This practice had become a ‘convention’ and was followed by the president without any
exception. But this practice was suddenly broken by the government when Justice A.N. Roy was made
Chief Justice of India after superseding three senior judges of the Supreme Court i.e. Justice Shelat,
Justice Hegde and Justice Grover. After this decision of the government, there went huge debate across
the whole India that is there executive interference prevailing in the matter of appointment of a judge of
the Supreme Court?

This question will be better answered through three judges’ case studies.

In S.P. Gupta v. Union of India which is popularly known as judges transfer case I. The Supreme Court
after being agreed with its earlier decision was given in Sankalchand sheth’s case held again that word
‘consultation’ meant ‘mere consultation of views’ and it does not means ‘ concurrence of views’ and thus
the President is not bound to act in accordance with such consultation and has a right to take a contrary
view.

This decision of the Supreme Court means that power of appointment of judges was “solely and
exclusively” vested in the central government and other constitutional functionaries had merely a
consultative role. Hence this case laid down the ‘executive supremacy’ in matters of appointment of
Supreme Court judges.

Then came the Supreme Court Advocates on Record Association v. UOI: Judges transfer case II: In this
case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier judgement given in
the judge’s Transfer case I and held that in the matter of appointment of the judges of the Supreme Court
and High Court, the Chief Justice of India should have primacy. The appointment of Chief Justice of
India shall be on the basis of seniority but the greatest significance should be attached to the view of the
Chief Justice of India formed after taking into account the views of two senior-most judges of the
Supreme Court. It, thus, reduces to the minimum individual discretion of constitutional functionaries. So
as to ensure that neither political bias nor personal favouritism nor animosity should play any part in the
appointment of the Supreme Court judges. It is for this reason that the word ‘consultation’ instead of
‘concurrence’ was used in the constitution to indicate that the absolute discretion was not given to anyone
neither to executive head nor judicial head.

The majority held that no appointment of any judge to the Supreme Court can be made unless it is in
conformity with the opinion of the Chief Justice of India. This decision thus laid down the judicial
Supremacy in the matter of appointment of judges of the Supreme Court.

After this came, the Judges transferred case III which was not a case but a ‘presidential reference’ raised
by the president of India K.R. Narayana used his consultation power under article 143. The President had
sought the Supreme Court’s clarification on the ‘collegium system’ as laid down in judges Transfer case
II, following a controversy over the recommendation by then Chief Justice of India M.M. Punchhi.

In which, the Court held that the ‘collegium system’ requires consultation of the plurality of judges. The
sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning
of the said articles. It was held that under Article 124(2), the Chief Justice of India should consult “a
collegium of four senior-most judges of the Supreme Court” and made it clear that if “two judges give
an adverse opinion the Chief Justice should not send the recommendation to the government”. The
opinion of the collegium must be in writing and the Chief Justice of India should send the
recommendation to the President along with his own recommendations.

The Court also held that the President can send back the recommendation of ‘collegium system’ but if
again the same name is proposed by ‘collegium’, the president is bound to accept it.

This is how the ‘collegium system’ developed gradually on the basis of Precedence established by three
separate cases of the Supreme Court of India. The judges were appointed to the Supreme Court according
to this system.

But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and 128 and
also inserted article 129 A,124 B and 124 C changes were done in the procedure of appointment of judges
of Supreme Court let’s see what changes were brought by 99th amendment of the constitution
 THE CURRENT PROCEDURE OF APPOINTMENT OF SUPREME COURT JUDGES

In Supreme Court Advocates on Record Association v. Union of India, the Court held that the ‘collegium
system’ as it existed before NJAC, would again become operative. But the Court also ordered for the
introduction of appropriate measures in order to improve the 21 years old ‘collegium system’ resultantly
the memorandum of the procedure is brought into working i.e now ‘collegium system’ will work as per
‘MOP’.

1. The MOP may indicate eligibility criteria such as the minimum age
2. in order to bring transparency in the appointment process, the appointment procedure of judges as
detailed in MOP ought to be made available on the website of the concerned Court
3. The MOP may provide for the establishment of the secretariat for better management of’ collegium
system’
4. The MOP may provide for an appropriate mechanism to deal with complaints against anyone who is
being considered for appointment as a judge

These were the broad suggestions that were given by the Court to enhance the ‘collegium system’ Till
date, this mechanism is being followed to appoint judges of the Supreme Court.
 CONCLUSION

Till 1973, from appointing senior-most judge of Supreme Court as CJI to gradually developing a
‘collegium system’ through precedence established by the Supreme Court judgements in three Judges’
case to appoint judges of the Supreme Court, the ‘collegium system’ evolved so far has ensured
‘independence of the judiciary’. Further, the working of the collegium system under the protocol of MOP
is hitherto the best possible way to appoint a judge of the Supreme Court of India. However, with the
need of time, a more efficient system surely needs to be found so that appointment procedure could be
fairer and the judiciary will have the best possible minds as judges.
 REFERENCES

1. Article 124 of the Constitution of India