28 Sept 2016 | GS2 | Discuss the evolution of the procedure by which Supreme Court judges have been appointed since independence.

GS2 (Appointments to various constitutional posts etc)

Discuss the evolution of the procedure by which Supreme Court judges have been appointed since independence.

Best answer

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There have been tussle between centre and the SC judges on appointment of Judges to higher posts. This is not a new battle and these have been discussed over time.

– Art. 124 of the constitution, Supreme court judges are to appointed by President in consultation CJI and with other judges of SC as he may seem necessary. This clearly made it a discretion of the President to appoint judges.
– In the First Judges case, SC concluded that consultation was not same as concurrence and President has full authority to appoint Judges without agreeing with any consultation.
– However, in second Judges Case, it was changed. SC declared the “primacy” of CJI to uphold the independence of Judiciary and created a collegium of two judges of SC.
– In Third Judges Case, the collegium was increased to four and restrictions were put on CJI to recommend names based on collegium’s recommendations.

This had made the appointment system opaque and fraught with nepotism. The legislature took note and enacted National Judicial Appointments Commission Act to remove collegium and develop an institutional framework. However, it was truck down by SC and centre was asked to come up with Memorandum for procedure.

In recent draft of MoP, SC had raised concerns regarding involvement of executive and attorney general in appointments. It has also object to provisions to reject names based on national security. It is yet to be finalised due to these objections.

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