UIL, PURC, LUDHIANA

Appointment Of Judges

JASMINE KAUR, B.A.LL.B(Hons) 3rd Sem, 25/09F

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Contents
Introduction.............................................................................................................................3
Article 124(2) ..........................................................................................................................3
Mr A.N Ray Fiasco .................................................................................................................3
Landmark Cases and the Transformation of the Procedure ......................................................4
Appointment of the Chief Justice of India and other Judges .....................................................5
Qualifications for Appointment as a Judge (Article 124(3)) .....................................................6
Tenure of Office (Article 124(2)) ............................................................................................6
Conclusion ..............................................................................................................................6

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana
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Appointment of Judges
Introduction
The Judiciary was to be an arm of the social revolution upholding the equality that Indians had
longed for. The Parliament may have reflected the elected will of the will but the Supreme Court
has always reflected our souls. What we as a nation think as a whole. The noblest profession of
all is of a Judge. It might not be wrong if we refer to the role being Godly. They impart Justice to
all, regardless of his caste creed color. For that to be granted the main task lies to choose a
person who is able to see the darkness of a criminal in spite of his attorney presenting him
innocent or seeing the innocence of a person being held guilty . “Mercy tempers Justice” and he
has to look beyond it. The appointment of a such legal brain has to be the most difficult task.
Article 124(2)
The judges of the Supreme Court are appointed by the President. The Chief of the Supreme
Court is appointed by the President with the consultation of such Judges of the Supreme Court
and the High Court as he deems necessary for the purpose. But in appointing other Judges, the
President shall always consult the Chief Justice of India. He may consult such other Judges of
the Supreme Court and High Court as he may deem necessary as under Article 124(2). Article
124(2) makes provision with respect to appointment of the Judges of the Supreme Court and of
the High Courts in the States as the President may deem necessary for the purpose. The word
„may‟ used in Article 124 makes it clear that it is not mandatory on him to consult anyone.

Article 124(2) does not prescribe the number of judges of the Supreme Court and of the High
Court which the President should consult in making appointment of Supreme Court Judges.
Again, the President is not bound to follow the advice of those whom he consults.

Mr A.N Ray Fiasco

Till 1973, the practice was to appoint the senior most Judge of the Supreme Court as the Chief
Justice of India. This practice had virtually been transformed into a convention and was followed
by the Executive without any exception. In 1956, the Law Commission headed by the then
Attorney-General M.C Setalvad had criticized this practice and recommended that in appointing
the Chief Justice of India the experience of a person as a Judge, his administrative competence
and merit should be judged and seniority should not only be the main consideration. The reports
of the Law Commission were should only be the main consideration. The reports of the Law
Commission were published as far as in 1956. Since then 17 years had passed but no attempt was
made by the Government to implement it. Instead, the Government continued to follow the
principle of seniority as a matter of rule in appointing the Chief Justice of India. On April 25,
1973, however this 22 years old practice was suddenly broken by the Government within few
hours of the delivery of the judgment in the Fundamental Right case. Mr. A.N. Ray was
appointed as Chief Justice of India superseding three of the senior colleagues. Justice Shelat,

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana
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Hegde and Grover. The three judges resigned from the Supreme Court. The action of the
Government raised a great controversy.

The Government, however, justified its action on the following grounds:

 The first reason given by the Government was that under Article 124 of the Constitution the
President has absolute discretion to appoint anyone whom he finds suitable for the post of the
Chief Justice of India.
 That the Government followed the recommendations of the Law Commission in appointing
the Chief Justice and superseding the three senior most judges. But the Law Commission
meant to appoint on the basis of the merit of the Judge not on the basis of his merit in the
eyes of the Executives.
 It was argued by the Government that the Executive was entitled to take into consideration
the mental outlook or the social philosophy of a judge. It is a democratic country and is being
run by a party and the Judge should subscribe to the agendas of the Party.But they went
wayward in deciding the social philosophy as it never meant that a Judge should be
influenced by the Government in his ruling.

Landmark Cases and the Transformation of the Procedure

S.P GUPTA v. UNION OF INDIA1

This case which is popularly known as the Judges Transfer case made a decision that held that
the word consultation has the same meaning under Article 124(2) as it was given by under
Article 222. The Court observed that the appointment of Judges was not an executive act but the
result of consultation process which must be observed in word and spirit. The President has a full
right to differ from those he consulted. The only ground on which the decision of the
Government can be challenged is that it is based on mala fide and irrelevant consideration, that
is, when constitutional functionaries express an opinion against the appointment.

This means that the ultimate power to appoint Judges is vested in the Executive from whose
dominance and subordination it was sought to be protected. The Supreme Court had abdicated its
power by ruling that constitution functionaries had merely a consultative role and that the power
to appoint Judges is solely and exclusively vested in the Central government.

S.C Advocates-on-Record Association v. Union of India 2

The Supreme Court, by a majority of 7 to 2 had laid down principles and prescribed procedural
laws in regard to the appointment of Judges to the Supreme Court. The Court inter alia had ruled
that the opinion of the Chief Justice of India formed by him collectively, i.e. after taking into
account the views of other Judges of the Supreme Court whose opinion was likely to be
significant in adjudging the suitability of the candidate, would have primacy.

1
AIR 1982 SC 149
2
AIR 1994 SC 268

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana
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The majority held that initiation of proposal for appointment in case of the Supreme Court must
be by the Chief Justice Of India and in the case of High Courts by the Chief Justice of that High
Court and for a transfer of the Chief Justice of a High court the proposal has to be initiated by the
Chief Justice of India.

PRESIDENTIAL REFERENCE3
Answering the Presidential Refrence, a nine judge Constitution Bench of the Supreme Court
reported to the President a significant unanimous opinion:

 The opinion of the CJI reflective of the opinion of the Judiciary, having element of plurality
in its formation has primacy.
 An opinion formed by the CJI in any manner other than indicated has no primacy and the
Government is not obliged to act thereon.
 The opinion of the CJI which has primacy has to be formed in consultation with a collegium
of Judges.
 The collegium should consist should consist of the CJI and the four senior most puisne
Judges of the Supreme Court.
 The recommendations would be based upon based on a consensus. Should that not happen
and if the majority of the collegiums is against the appointments of a particular person then
that person shall not be appointed.
 No one can be appointed to the Supreme Court unless his appointment is in conformity with
the opinion of the CJI.
 Judicial review in the case of an appointment or a recommended appointment is available if
the recommendation concerned is not a decision of the CJI and his senior most colleagues,
which is a constitutional requisite.

Appointment of the Chief Justice of India and other Judges

The CJI is mostly appointed on seniority basis except the case involving Justice A.N.Ray. For
the performance of the CJI there is needed not only a Judge but also a competent administrator
capable of handling complex matters by himself and shrewd judge of men and personalities.

The following are the important guidelines :-

1. Individual initiation of high constitutional functionaries in the matter of Judges appointments

reduced to minimum. It gives primacy to the Chief Justice of India but puts a rider that he
must consult his two colleagues.
2. Constitutional functionaries must act collectively in judicial appointments.
3. Chief Justice of India has the final say in transfer of Chief Justice and Judges of High Court.
4. Transfers of Chief Justices and Judges of High Courts cannot be challenged in Courts.
5. Appointment of the Chief Justice of India by seniority
6. No Judge can be appointed by the Union Government without consulting the Chief justice Of
India.
3
Re: Presidential Reference AIR 1999 SC 1

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana
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Qualifications for Appointment as a Judge (Article 124(3))

Clause (3) of Article 124 lays down the following qualifications for a person to be appointed as a
Judge of the Supreme Court:-
a) He must be a citizen of India ; and
b) He has been for at least five years a Judge of a High Court or of two or more High Courts in
succession; or
c) Has been for at least ten years an advocate of a High Court or of two or more High Courts in
succession: or
d) He is, in the opinion of the President a distinguished jurist.

Clause (6) of Article 124 provides that every person appointed to be a Judge of the Supreme
Court, before he enters upon his office, shall make and subscribe before the President, or some
person appointed in that behalf by him, an oath or affirmation, according to the form set out for
the purpose in the Third Schedule.

Tenure of Office (Article 124(2))

Clause (2) of Article 124 provides that a Judge of the Supreme Court shall hold office until he
attains the age of 65 years. A Judge may, however, resign his office by writing under his hand
addressed to the President. He may be removed from his office under grounds of proved
misbehavior or incapacity.

Conclusion
In a seminar in Delhi on judicial reforms held on 21 Dec 1998 brought out sharp differences
between those within the judiciary and those outside it. On the issue of appointment of Judges of
the higher judiciary the discussion showed that Presidential reference had not settled the matter.
Justice M Bhagawati had in fact suggested for the appointment of a Judicial Commission on the
line of the Australian Judicial Commission

In fact a Bill was introduced in Lok Sabha by the National Front Government for setting up a
National Judicial Commission in 1990 by the then Law Minister Dinesh Goswami. However the
Bill lapsed consequent on the dissolution of the Lok Sabha.

The solution therefore lies in a practice where neither side enjoys supremacy. A constitutional
body reflecting the aspersions of all sections should be entrusted with the task of bringing in
harmony between the two conflicting wings of the Government

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana
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Bibliography
1) Constitutional Law of India:- Prof Narendra Kumar
2) Constitutional Law of India:- J.N Pandey
3) Constitutional Law of India:- Prof Kailash Rai
4) www.legallyindia.com
5) www.indiankanoon.org

This article has been written by Jasmine Kaur, B.ALL.B(Hons) 3 rd Sem,25/09F, PURC Ludhiana