Published on: September 4, 2021
MAHITI FOR MAINS : APPOINTMENT OF SUPREME COURT JUDGES
Who appoints Supreme Court judges:
- Articles 124(2) and 217 of the Constitution governs the appointment of judges to the Supreme Court and High Courts respectively.
- Under both provisions, 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
CASES THAT DEFINED CONSULTATION
- The tussle between the executive and the judiciary over judges’ appointment began following the Indira Gandhi-led government’s move in 1973 to supersede three senior judges and appoint Justice A N Ray as the CJI.
- In three cases — which came to be known as the Judges Cases — in 1981, 1993 and 1998, the Supreme Court evolved the COLLEGIUM SYSTEM for appointing judges.
- A group of senior Supreme Court judges headed by the CJI would make recommendations to the President on who should be appointed. These rulings not only shrank the executive say in proposing a candidate for judgeship, but also took away the executive’s veto power.
- In the 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 appointment of judges. The ruling affirmed the pre-eminence of the executive in making appointments, but was overturned 12 years later in the Second Judges Case.
- In the 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 court underlined that the deviation from the text of the Constitution was to guard the independence of the judiciary from the executive and protect its integrity.
- In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” — whether it required “consultation” with a number of judges in forming the CJI’s opinion, or whether the CJI’s sole opinion could by itself constitute a “consultation”. The ruling on this established a quorum and majority vote in the collegium to make recommendations to the President.
How many judges does the Supreme Court have? How is the number decided?
- Currently, the Supreme Court has 34 judges including the CJI.
- In 1950, when it was established, it had 8 judges including the CJI.
- Parliament, which has the power to increase the number of judges, has gradually done so by amending the Supreme Court (Number of Judges) Act — from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009, and 34 in 2019.