Article Jatin Chawla
APPOINTMENT OF JUDGES OF HIGHER COURT IN INDIA
Jatin Chawla*
Introduction
As per Article 1241 of Constitution of India which deals with the appointment of Supreme Court judges. It provides that the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The Chief Justice of India is to be consulted in all appointments, except his or her own. Article 2172 deals with the appointment of High Court judges. It provides that a judge should be appointed by the President after consultation with the Chief Justice of India and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted, but judges interpreted ‘Consultation’ as collegium of judges. Under collegium system appointments and transfers of judges are decided by a forum consisted of Hon’ble Chief Justice of India and the four senior-most judges of the Supreme Court. The collegium system had its genesis in a series of three judgments that are popularly known as “three judge’s case”. S.P. Gupta v. President of India3 is known as first judge case in which Supreme Court said that recommendation made by Chief Justice of India to the President can be refused for ‘cogent reasons’. This brought a paradigm shift in favor of the executive having primacy over the judiciary in judicial appointments. Thereafter in Supreme Court Advocates-on Record Association vs. Union of India4 Supreme Court has interpreted Article 124 and Article 217 of the Constitution of India and evolve a collegium system of appointment. Court has said that ‘justifiability’ and ‘primacy’ required that the Chief Justice of India be given the ‘primal’ role in the appointment of judiciary. This case overruled the SP Gupta case. Here the word ‘consultation’ shrunk in a mini form. After this judgment there was a confusion regarding appointment process so in 1998 a Presidential Reference5 was issued to Supreme Court asking
Jatin Chawla*
Introduction
As per Article 1241 of Constitution of India which deals with the appointment of Supreme Court judges. It provides that the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The Chief Justice of India is to be consulted in all appointments, except his or her own. Article 2172 deals with the appointment of High Court judges. It provides that a judge should be appointed by the President after consultation with the Chief Justice of India and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted, but judges interpreted ‘Consultation’ as collegium of judges. Under collegium system appointments and transfers of judges are decided by a forum consisted of Hon’ble Chief Justice of India and the four senior-most judges of the Supreme Court. The collegium system had its genesis in a series of three judgments that are popularly known as “three judge’s case”. S.P. Gupta v. President of India3 is known as first judge case in which Supreme Court said that recommendation made by Chief Justice of India to the President can be refused for ‘cogent reasons’. This brought a paradigm shift in favor of the executive having primacy over the judiciary in judicial appointments. Thereafter in Supreme Court Advocates-on Record Association vs. Union of India4 Supreme Court has interpreted Article 124 and Article 217 of the Constitution of India and evolve a collegium system of appointment. Court has said that ‘justifiability’ and ‘primacy’ required that the Chief Justice of India be given the ‘primal’ role in the appointment of judiciary. This case overruled the SP Gupta case. Here the word ‘consultation’ shrunk in a mini form. After this judgment there was a confusion regarding appointment process so in 1998 a Presidential Reference5 was issued to Supreme Court asking