💥Mains Ready By December. Smash Mains & Smash PYQ Admissions Open
Talk to Mentor

Civilsdaily

Login

Subject: Judiciary

  • A Court divided by its own architecture

    Why in the News

    A two-judge Bench of the Supreme Court has split on the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The judges differed not on the law’s validity but on whether a Bench of two could decide it at all, which exposes how the Court is organised.

    What does the 2023 Act provide, and what did Anoop Baranwal settle?

    1. Selection committee: The Act, enacted in December 2023, has the Prime Minister, the Leader of the Opposition and a Minister chosen by the Prime Minister recommend Election Commissioners.
    2. Interim arrangement: Earlier, in Anoop Baranwal vs Union of India (2023), a five-judge Constitution Bench had seated the Chief Justice of India (CJI) in the Minister’s place, as a stopgap until Parliament legislated.
    3. Settled principle: Baranwal read Article 324, which creates the Election Commission, to require appointments insulated from exclusive executive control. Under Article 141, that declaration binds every court.
    4. The takeaway: Parliament could drop the CJI, but the Act must still meet Baranwal’s standard of insulation from the executive.

    Why did the Bench split?

    1. Union’s late plea: Midway through hearings, the Union invoked Article 145(3) to seek at least five judges, a plea absent from its written reply.
    2. Datta’s view: Justice Dipankar Datta refused, holding that testing a committee where the executive holds two of three votes only applies Baranwal’s settled rule, so two judges suffice.
    3. Sharma’s view: Justice Satish Chandra Sharma agreed with the Union, since no ruling yet exists on the 2023 Act’s validity.
    4. Unusual referral: A split of two normally goes to three judges. Both instead asked the CJI to form a Constitution Bench, so petitioners in court since early 2024 wait again.

    Does Article 145(3) require a Constitution Bench for every new law?

    1. Text of the provision: Article 145(3) requires five judges only for a substantial question of constitutional interpretation, not for every important case or new statute.
    2. Settled test: Thakur Ganga Singh (1959) held interpretation arises only when parties advance competing readings of a constitutional provision. A three-judge Bench applied this to the provision in PUCL vs Union of India.
    3. Two-judge landmark rulings: On Sharma’s test, two-judge Benches could not have decided Shreya Singhal (Section 66A) or NALSA (transgender identity).
    4. Weak stare decisis: Stare decisis means courts stand by earlier rulings. Here a Bench of two declined to apply a principle five judges had settled.

    How has the Court’s structure produced delay?

    1. Original design: The Court began in 1950 with six judges, so the five-judge rule assumed it would mostly sit together.
    2. Today’s court: With 38 sanctioned judges sitting mainly in small panels on special leave petitions (requests to appeal), a Constitution Bench forms only when five judges are spare.
    3. Many courts in one: Scholar Nick Robinson calls the result many courts, each Bench speaking in its own voice.
    4. Decade-long references: Anoop Baranwal took eight years, and the Jai Bir Singh “industry” reference lay dormant 15 years. The judges call such delay “institutional embarrassment”.

    What reform is proposed, and what must it guard against?

    1. Permanent Constitution Bench: The joint order asks the CJI to explore a standing Bench for pure constitutional questions. The Law Commission’s 229th report (2009) proposed this, with regional Benches hearing appeals.
    2. Composition risk: The CJI can create such a Bench without amendment, but choosing its members shapes outcomes, so pre-set, transparent rules must decide composition.
    3. Inverted role: The Court, conceived as a guardian of the Constitution that also hears appeals, now sits mainly as an appellate court.

    Challenges

    1. Appeal-heavy docket: Special leave petitions leave few judges free for five-member Benches.
    2. Regional Bench resistance: The Court has long resisted regional Benches, so the Law Commission model has stalled.
    3. Elections under doubt: Commissioners chosen under the contested law will oversee several State and likely general elections before the case ends.

    Way Forward

    1. Roster committee: Bench formation should pass to a committee of the CJI and the next two senior-most judges.
    2. Reference deadlines: The Court should fix timelines for hearing references to larger Benches.
    3. Precedent discipline: A smaller Bench doubting a larger one should refer the doubt, not bypass the ruling.

    Conclusion

    Until constitutional cases get a standing Bench chosen by fixed rules, the Court will keep settling its gravest questions after the fact. Whether the CJI forms a Constitution Bench for this case, and on what rules, is the decision to watch.

    Matching Previous Year Question

    “[2022] Consider the following statements : 1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed. 2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves. 3. The Constitution of India defines Civil Contempt and Criminal Contempt. 4. In India, the Parliament is vested with the powers to make laws on Contempt of Court. Which of the statements given above is/are correct ?4 (a) 1 and 2 only (b) 1, 2 and 4 (c) 3 and 4 only (d) 3 only Answer: B”

  • Few judicial officers make it to High Courts despite training and decades of experience

    Why in the News

    Career judges from the subordinate judiciary fill only 233 of the High Courts’ 1,114 sanctioned posts, far below the one-third share convention leaves them in most States. It resurfaced as seven district judges’ elevation lifted the Delhi High Court to 50 working judges of a sanctioned 60.

    How do judges reach a High Court?

    1. Two streams under Article 217: Article 217 of the Constitution lets High Court judges come from the Bar (advocates) or from judicial officers of the State service. It fixes no ratio between them.
    2. The one-third convention: By convention, two-thirds of vacancies go to the Bar and one-third to the service cadre. It works like an informal quota that no law enforces.
    3. Colonial origin: Under British rule, magistrates’ courts were run by Indian Civil Service officers, who were executive officials. They mainly heard faujdari (criminal) cases, not deewani (civil) disputes.
    4. Separation of powers: The Constitution separated the judiciary from the executive. Trial courts therefore passed to independent State Judicial Services, with a career ladder of their own.
    5. The takeaway: The Constitution names both streams without a ratio, so an unwritten convention decides, and it leaves career judges only a minority of seats.

    How far short of the norm do High Courts fall?

    1. Delhi’s intake: After the latest elevations, 19 of the Delhi High Court’s 50 working judges came from the subordinate courts.
    2. National shortfall: Only 233 judges in office came from the district judiciary, against 1,114 sanctioned High Court posts. That is roughly one in five.
    3. Near the norm: Tripura, Himachal Pradesh and Delhi exceed or near the one-third share. Eg. Tripura at 40%.
    4. Far behind: Service judges make up just 9.09% in Uttarakhand and Chhattisgarh, and Sikkim has no judge from its State Judicial Service.

    Why do service judges arrive too late to matter?

    1. Slow climb: Most law graduates join as civil judges in their late twenties. Reaching senior civil judge takes about 10 years, and district and sessions judge another decade.
    2. Late zone of consideration: Officers enter the zone of consideration (the pool screened for elevation) in their late fifties, leaving a few years before the retirement age of 62.
    3. Supreme Court gap: No sitting Supreme Court judge began in the trial courts. The last was Justice Bela M. Trivedi, appointed in August 2021. She retired in June 2025.
    4. Talent deterrent: A former Principal District and Sessions Judge warns that unclear career progression deters top law graduates from the lower judiciary.

    What has the Supreme Court said, and what do former judges want?

    1. Plea for a 50% quota: In 2023 the Judicial Service Association of Delhi asked the Supreme Court to direct that half of High Court seats be filled from the service quota.
    2. Plea declined: A three judge Bench declined the prayer on 25 April 2023. It left the applicants to seek remedies before a forum “permissible in law”.
    3. Advance recommendations: The Bench directed High Courts to recommend service cadre names before vacancies arise, noting that service judges often got only a few years of tenure.
    4. Case for a larger share: A retired Delhi High Court judge from the service cadre argues seats “ought to have been divided equally if not more” for the service.
    5. Faster filling: Appraisals, integrity reports and judgment records already exist for officers, so their names can be processed months before a vacancy.

    Challenges

    1. No written ratio: Article 217 fixes no proportion, so each High Court’s service share depends on the discretion of its selectors.
    2. Short tenures: Officers elevated late rarely gain the seniority needed to become a Chief Justice or reach the Supreme Court.
    3. Collegium opacity: The collegium (the panel of senior judges that recommends appointments) publishes no criteria for choosing between the two streams.

    Way Forward

    1. Minimum service share: The Supreme Court collegium should fix a published minimum service share for every High Court.
    2. Earlier promotion: High Courts should widen accelerated promotion through limited competitive examinations, in-service tests that let able officers move up ahead of seniority, so they reach district judge rank younger.
    3. Vacancy calendar: Each High Court should publish expected vacancies in advance, so service names are ready on time.

    Conclusion

    The two constitutional streams into the High Courts have narrowed in practice into a small and late share for career judges. Whether any minimum share is written down will decide if trial court experience reaches the higher Bench.

    Key numbers

    1. Telangana and Odisha: 11.90% and 15.15% of High Court judges drawn from the service.
    2. Bombay High Court: 17.02% drawn from the service.
    3. Himachal Pradesh and Delhi: 35.29% and 31.67% drawn from the service.

    Matching Previous Year Question

    “[2022] Consider the following statements : 1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed. 2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves. 3. The Constitution of India defines Civil Contempt and Criminal Contempt. 4. In India, the Parliament is vested with the powers to make laws on Contempt of Court. Which of the statements given above is/are correct ?4 (a) 1 and 2 only (b) 1, 2 and 4 (c) 3 and 4 only (d) 3 only Answer: B”

  • How to appoint judges: A view from South Africa

    How to appoint judges: A view from South Africa

    Why in the News

    • The Supreme Court has held that confidentiality in judicial appointments is necessary to preserve the integrity of the appointment process.
    • The issue arose in Arvind Malhotra v. High Court of Himachal Pradesh, involving a judge who challenged the elevation of a junior judge to the Supreme Court.
    • The case brings into focus the debate between confidentiality and transparency in judicial appointments.

    Judicial Service Commission of South Africa

    • The Judicial Service Commission (JSC) is a constitutional body involved in judicial appointments in South Africa.
    • It includes judges, lawyers, legal academics and political representatives.
    • Its proceedings are conducted publicly and broadcast.
    • Process involves:
      • Calling for nominations.
      • Preparing a shortlist.
      • Inviting public comments.
      • Conducting public interviews.
      • Voting where members disagree.
    • The identity of individual votes remains confidential.

    Judicial Accountability in South Africa

    • Judges do not enjoy special immunity from complaints regarding conduct.
    • The JSC can investigate allegations of improper conduct.
    • Serious cases can lead to a public enquiry and recommendations for impeachment.

    Constitutional Provisions

    • Article 124: Appointment of Supreme Court judges.
    • Article 217: Appointment of High Court judges.
    • 99th Constitutional Amendment Act, 2014: Provided for the National Judicial Appointments Commission (NJAC).
    • 2015: Supreme Court struck down the NJAC framework and restored the Collegium system.

    Major Concerns

    • Judges appointing judges: Concerns regarding limited external checks and accountability.
    • Transparency: Collegium resolutions are published, but detailed reasons for selection are generally not disclosed.
    • Representation: Concerns regarding social and regional diversity in higher judiciary.
    • Objective merit: Absence of a publicly stated and standardised evaluation framework.
    • Regional imbalance: Some High Courts remain unrepresented in the Supreme Court.

    Way Forward

    • Develop clear and publicly stated selection criteria.
    • Improve transparency while protecting legitimate confidentiality.
    • Consider regional and social representation alongside merit.
    • Strengthen mechanisms for addressing complaints against judicial officers.
    • Maintain the essential balance between judicial independence and public accountability.

    Prelims Pointers

    • Article 124 → Supreme Court judges.
    • Article 217 → High Court judges.
    • Collegium → Judicial appointments to higher judiciary.
    • NJAC → Created through 99th Constitutional Amendment, 2014.
    • NJAC struck down → 2015.
    • South Africa JSC → Constitutional body involved in judicial appointments.
    • TRAI vs JSC: JSC is a constitutional judicial appointments body in South Africa, while India’s Collegium is a judge-led mechanism evolved through judicial decisions.

    [2012] What is the provision to safeguard the autonomy of the supreme court of India?
    1. While appointing the Supreme Court judges, the president of India has to consult the CJI.
    2. the SC judges can be removed by the CJI only
    3. the salaries of judges are charged on the consolidated fund of India to which the legislature does not have to vote.
    4. All appointments of officers and staffs of the SC are made by the govt only after consulting the CJI
    Which of the statements given above is/are correct?

    [A] 1 and 3 only

    [B] 3 and 4 only

    [C] 4 only

    [D] 1, 2, 3 and 4

  • Punjab stand on judge sets disturbing precedent

    Why in the News

    Justice Ashwani Kumar Mishra has taken oath as Chief Justice of the Punjab and Haryana High Court, with the front-row chair reserved for the Punjab Chief Minister left empty. A day earlier the State Cabinet had asked the Punjab Governor to hold off the oath-taking. Its stated ground was that the Centre notified the appointment without the State’s consent, in breach of the Memorandum of Procedure (MoP) that governs judicial appointments. The Supreme Court Collegium had recommended Justice Mishra and three other judges as chief justices of four High Courts on 6 August, and the Centre notified the appointment on 5 September. The contest is between a State’s right to be consulted on a High Court appointment and a consultative process that fixes no deadline for the State to answer.

    What is the Memorandum of Procedure?

    1. The rulebook for judicial appointments: The MoP sets out the sequence by which judges of the higher judiciary are recommended, consulted upon and appointed.
    2. It requires the States to be consulted: Before a High Court appointment is notified, the Centre must consult the State concerned.
    3. It fixes no time limit on the State: The document sets no deadline for a State to send its response.
    4. It is an executive document, not a statute: The MoP is settled between the Centre and the judiciary, and a revised version sought after the National Judicial Appointments Commission was struck down in 2015 remains unfinished.

    What is Punjab’s case?

    1. Consent was not obtained: The Cabinet’s position is that the Centre notified the appointment without the State’s concurrence, which it treats as a breach of the MoP.
    2. No deadline binds the State: Punjab is correct that the MoP prescribes no deadline for a State’s response, so a delayed reply violates nothing on the document’s own terms.
    3. The flexibility has a purpose: That absence of a deadline exists because judicial appointment is designed as a consultative process rather than a clearance queue.

    Why does the case not hold?

    1. Weeks were available and went unused: If the State government had reservations about Justice Mishra, it had weeks in which to put them on file, where they could have been examined on their merits.
    2. The silence blocked three other courts: The delay in Punjab’s response held up all four chief justice appointments recommended in the same Collegium resolution.
    3. The court had recently ruled against the State: As Acting Chief Justice, Justice Mishra’s bench pulled up Punjab in August for withholding dearness allowance dues and for finding ample money for advertising. His court also heard a Mohali case in which allegations were made against the Chief Minister’s wife, which the ruling party has described as politically motivated.

    Is this an isolated episode?

    1. The same move was attempted in Delhi: The Aam Aadmi Party earlier sought to have Justice Swarana Kanta Sharma taken off the appeal in the excise policy case in which its leaders are arraigned as accused.
    2. The precedent this sets: Treating an adverse order as a personal affront converts a judicial outcome into a ground for obstructing an appointment, which is a template no political party should be able to rely on.

    What reform does the episode point to?

    1. Defined timelines belong in the MoP: The episode makes the case for writing fixed response periods into a document that currently has none.
    2. A benchmark already exists on the other side: The Supreme Court has set the Centre a benchmark of three to four weeks for clearing names reiterated by the Collegium.
    3. Deemed consent closes the gap: A comparable window for State responses, after which consent is treated as given, would remove the ambiguity this episode exposed.

    Conclusion

    Disagreement between the Centre and a State over an appointment is ordinary constitutional business, and nothing about it is improper. Withholding a reply is not disagreement; it is the absence of one, and it quietly converts a consultative step into a veto that no rule ever granted. A written objection with reasons can be examined and answered; silence can only be waited out. What remains unresolved is whether the duty to consult carries a corresponding duty to respond, and the present arrangement supplies no answer either way.

    Back2Basics: The Collegium

    1. What it is: The Collegium is the body of senior judges that recommends appointments and transfers in the higher judiciary. It finds no mention in the text of the Constitution.
    2. Its composition: For Supreme Court appointments it consists of the Chief Justice of India and the four seniormost judges of the Supreme Court.
    3. Where it came from: It emerged from the Second Judges Case (1993), which read “consultation” in Articles 124 and 217 as concurrence, and was expanded by the Third Judges Case (1998).
    4. Its binding force: The government may return a recommendation once, but a name reiterated by the Collegium is binding on it.

    Matching Previous Year Question

    “[2025, GS2, 15.0 marks] Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system on appointment of the Judges of the Supreme Court of India and that of the USA.”

  • Day after Cabinet move, Mann skips Chief Justice’s oath event

    Why in the News

    Justice Ashwani Kumar Mishra has taken oath as Chief Justice of the Punjab and Haryana High Court. The Punjab Cabinet had passed a resolution a day earlier demanding that the appointment and the administration of the oath be put on hold until the State’s views were obtained and duly considered. The Punjab Governor administered the oath at Chandigarh, and the Punjab Chief Minister did not attend. The Union Ministry of Law and Justice had already notified the appointment under Article 217(1) of the Constitution. The contest is over what a State’s views amount to in a High Court Chief Justice’s appointment, a consultative input the Centre may record and move past, or a consent it must first obtain.

    What is the Memorandum of Procedure?

    1. What it is: The Memorandum of Procedure is the written document setting out the steps for appointing judges to the Supreme Court and the High Courts.
    2. Where it comes from: It was framed to give administrative effect to the collegium system established through the Second and Third Judges cases. It is neither a statute nor part of the Constitution.
    3. What it governs: It fixes who initiates a proposal, who is consulted, and the order in which the file moves between the collegium, the State and the Union government.

    How was this appointment processed?

    1. Collegium recommendation: The Supreme Court collegium recommended four High Court Chief Justices, including this one, on 6 August.
    2. Views sought from the States: On 12 August the Centre sought the views of the Chief Ministers and the Governors of the four States concerned.
    3. The notification: The Appointments Division of the Department of Justice notified the appointment on 5 September under Article 217(1), with effect from the date the appointee assumes charge.
    4. He was already discharging the office: The Centre had asked him on 1 June to perform the duties of Chief Justice, after the previous Chief Justice was elevated to the Supreme Court.

    What does Punjab say was violated?

    1. The resolution: An emergency Cabinet meeting resolved that the appointment and the administration of the oath be held until Punjab’s views were obtained and duly considered.
    2. Consent, not consultation: The State’s stated position is that the appointment was made without obtaining the consent of the State government.
    3. A pattern claim: The resolution described the step as another instance of the Centre bypassing Punjab’s constitutional rights and established procedure.
    4. The ground stated publicly: The Chief Minister’s objection rested on the Memorandum of Procedure and on constitutional norms rather than on any statutory bar.

    Where does the process actually leave a State?

    1. Article 217(1) names its consultees: The President appoints a High Court judge after consultation with the Chief Justice of India and the Governor of the State. A Chief Minister acts through the Governor and is not a separate consultee.
    2. No deadline binds a State’s reply: The Memorandum of Procedure stipulates no time period within which a State must respond to a request for its views.
    3. Chief Justice appointments move fastest: Consent for the appointment of a Chief Justice is dealt with immediately in practice, so a State that does not answer quickly is overtaken by the file.
    4. Consultation is not concurrence: A collegium recommendation reiterated after reference back binds the executive. A State’s view is an input into that process and not a veto over it.

    Why is this friction not an isolated episode?

    1. A pending money order against the State: The High Court directed the Punjab government on 3 August to release pending dearness allowance instalments and arrears to employees and pensioners.
    2. The State has gone to the Supreme Court: Punjab has filed a special leave petition against that ruling, delivered by a division bench headed by the same judge while he was acting Chief Justice.
    3. Policies stayed and rolled back: The High Court stayed the Land Pooling Policy, 2025 in August 2025 and the Punjab Unified Building Rules, 2025 in December 2025, and the State later withdrew or reversed both.
    4. Welfare corpus diversion blocked: In July 2026 the High Court stayed a proposal to divert the Punjab Building and Other Construction Workers’ Welfare Board corpus to other schemes.
    5. The electoral clock: Punjab Assembly elections are less than six months away, which gives the confrontation a political audience it would otherwise lack.

    Challenges to the Memorandum of Procedure

    1. It carries no legal force: The Memorandum is an executive document, so no participant can be compelled to complete a step within any time. Eg. The revised Memorandum sought after the National Judicial Appointments Commission judgment of 2015 has still not been settled between the government and the collegium.
      The Fix: Give the Memorandum statutory backing, so each stage carries a deadline that a court can enforce.
    2. Delay operates as a silent veto: The Union government can sit on a recommendation without formally rejecting it, which produces the outcome of a rejection without the record of one. Eg. Names reiterated by the collegium have remained pending with the government for well over a year on repeated occasions.
      The Fix: Treat a reiterated recommendation as notified if the government does not act on it within a fixed period.
    3. The consultation record is closed: Views submitted by a State or a Governor are never published, so a claim that they were ignored cannot be tested by anyone. Eg. Punjab’s objection here rests on a file that no one outside the process can read.
      The Fix: Publish the sequence of consultations for every appointment, with the date each input was received and acted on.
    4. Transfers proceed without stated grounds: The Memorandum does not set out the criteria on which a judge is moved from one High Court to another. Eg. Collegium resolutions record transfers as being in the interest of better administration of justice, with no further reasoning.
      The Fix: Require a written and published reason for every transfer proposal before it is acted upon.

    Conclusion

    The appointment has gone through and the disagreement it exposed has not. A State can be consulted on a High Court appointment while nobody is obliged to wait for its answer, which makes the consultation real in form and empty in effect. That gap is not a Punjab problem, and it will recur wherever a State government and the Centre sit on opposite sides. Closing it needs a written timeline binding on both, not a resolution passed after the file has already moved.

    Matching Previous Year Question

    “[2017, GS2, 10 marks] Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.”

  • State consent not taken, put HC Chief Justice appointment on hold: Punjab Govt

    Why in the News

    The Punjab Cabinet has passed a resolution demanding that the appointment of Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court be put on hold. The resolution states that the Centre notified the appointment without obtaining the State government’s views, as the Memorandum of Procedure for the appointment of High Court judges requires. The Supreme Court Collegium had recommended four High Court Chief Justices on 6 August. The Centre sought the views of the Chief Ministers and Governors of the four States on 12 August, and notified the appointments on 5 September. The contest is over a document that gives a State a consultative role, sets no period within which the State must use it, and creates no right the State can enforce.

    What is the Memorandum of Procedure?

    1. A working document, not a statute: The Memorandum of Procedure sets out the steps by which judges of the Supreme Court and the High Courts are recommended, consulted on and appointed. It carries no statutory force and confers no enforceable right on any party.
    2. It came out of the Judges cases: The Supreme Court’s Second Judges case (1993) and Third Judges case (1998) placed primacy in a Collegium of senior judges. The Memorandum was drawn up afterwards to record how the Collegium and the executive would process an appointment.
    3. The State enters as a consultee: For a High Court appointment the Centre seeks the views of the Chief Minister and the Governor of the State before the recommendation is processed for notification.

    What has Punjab demanded, and on what ground?

    1. A hold on the appointment and the oath: The Cabinet resolved at an emergency meeting that the appointment and the administration of oath be put on hold until Punjab’s views are obtained and duly considered.
    2. The stated ground is procedural bypass: The Cabinet described the appointment as “yet another instance” of the Centre bypassing Punjab’s constitutional rights and established procedure.
    3. The objection was escalated to the constitutional heads: The Chief Minister wrote to the President, the Prime Minister and the Governor, enclosing the resolution. The Chief Minister is not expected to attend the oath ceremony.
    4. The Bar has framed it as executive overreach: The Punjab and Haryana High Court Bar Association has read the notification as the executive acting past a procedural safeguard rather than as a routine posting.

    Why did the appointment proceed without Punjab’s response?

    1. The document fixes no time period: Nothing in the Memorandum states how long a State may take to send its views.
    2. Convention supplies the missing clock: Consent for a Chief Justice is conventionally dealt with immediately, and inputs from a Chief Minister on a High Court judge take four to six weeks.
    3. Silence is read as assent: After a certain period the Law Ministry deems that the State government had no objection to the recommendation.
    4. Three other States had already replied: Bihar, West Bengal and Maharashtra sent their inputs immediately. The delay by Punjab held up those three appointments as well.

    Where does this leave the wider appointments cycle?

    1. Every High Court now has a regular Chief Justice: Eight appointments were notified on Collegium recommendations of 6 August and 31 August, filling all 25 High Courts. The Chhattisgarh appointment followed separately after its sitting Chief Justice retired on 4 September.
    2. The Collegium’s attention shifts to the top court: Four vacancies remain in the Supreme Court, which trace to the Supreme Court (Number of Judges) Amendment Ordinance, 2026 raising the sanctioned strength in May. The Court currently sits at 34 judges.
    3. The window is narrow: A fifth seat falls vacant on 29 November on a retirement, and the Chief Justice of India retires on 9 February 2027. These are the last recommendations the present Collegium can make.

    Challenges to the Memorandum of Procedure

    1. The revised document has stayed unsettled for a decade: After the Supreme Court struck down the National Judicial Appointments Commission in Supreme Court Advocates-on-Record Association v. Union of India (2015), a five judge Constitution Bench directed the government to finalise a revised Memorandum. Eg. Successive drafts have moved between the Collegium and the Law Ministry without agreement on a national security exception or on a permanent secretariat.
      The Fix: Settle the revised document against a dated deadline set by the Court, so that the operative rulebook is a published text rather than a decade of correspondence.
    2. No clause binds the executive to notify within a period: A recommendation the Collegium reiterates is binding in substance, and nothing fixes when the notification must issue. Eg. Justice K M Joseph’s elevation was recommended in January 2018, returned by the government, reiterated in July 2018 and notified only in August 2018.
      The Fix: Write a fixed outer limit for notification into the revised Memorandum, with the recommendation taking effect on its expiry.
    3. The criteria for selecting a Chief Justice are unpublished: Seniority combined with suitability operates as a convention rather than as a stated test, so a comparative assessment cannot be examined. Eg. Collegium resolutions record the name recommended without the assessment that produced it.
      The Fix: Publish the criteria and an anonymised comparative note with each Chief Justice recommendation.
    4. A State’s view has no remedy attached to it: The Memorandum creates no right, so a State that believes it was not consulted has no forum that can stay the appointment. Eg. Punjab’s objection could travel to the President and the Prime Minister and to no authority able to halt the oath.
      The Fix: Record the State’s response, or its absence, on the file as a dated entry that the notification must recite.

    Conclusion

    The dispute is not about the individual appointed. It sets a State’s claim to be consulted against a document that binds nobody and can be satisfied by the passage of time. A State that responds late has its silence converted into consent, and a State that objects afterwards has nowhere to take the objection. Until the Memorandum of Procedure is itself settled, a State’s dissent on a judicial appointment will keep arriving as a political resolution rather than as a step in the appointment process.

    Back2Basics: The Collegium system

    1. What it is: A body of the senior most judges of the Supreme Court that recommends appointments and transfers of judges to the Supreme Court and the High Courts.
    2. Composition: The Chief Justice of India and the four senior most judges of the Supreme Court for Supreme Court appointments. A smaller collegium of the Chief Justice of India and two senior most judges handles High Court recommendations.
    3. Source of authority: It is a judicial creation, not a constitutional provision. Articles 124 and 217 speak only of consultation with the judiciary.
    4. The executive’s residual role: The government may return a recommendation once with its objections. A reiterated recommendation is binding on it.

    Matching Previous Year Question

    “[2025, GS2, 15 marks] Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system on appointment of the Judges of the Supreme Court of India and that of the USA.”

  • Judicial integrity – a case the Court cannot ignore

    Why in the News

    A sitting judge of the Supreme Court of India, Justice Sandeep Mehta, wrote three letters to the Chief Justice of India (CJI) on 2, 10 and 17 August seeking the immediate transfer of the Acting Chief Justice of the Rajasthan High Court, Justice Sanjeev Prakash Sharma. The letters allege victimisation of judges, maladministration, improper shifting of cases to his own Bench, and nepotism in appointments to the Permanent Lok Adalat. The last of the three records concern at the CJI’s inaction, with Justice Sharma due to retire on 26 September. The stated response is that allegations cannot be treated as findings and must be dealt with strictly through the established institutional mechanism. The tension is that the established mechanism is precisely what has not worked, since the appointment system carries no published criteria and the removal machinery has never removed a judge.

    What is the “master of the roster” power?

    1. What the power is: The Chief Justice of a court holds the exclusive administrative authority to constitute Benches and to assign cases among them.
    2. Where it comes from: It rests on convention and on the Supreme Court’s own rulings treating the Chief Justice as first among equals for administrative purposes, not on any statutory provision.
    3. Its reach in this case: The power covers roster allocation for the whole court, and it is exercised by the Acting Chief Justice wherever the office of Chief Justice is vacant.

    What do the letters allege?

    1. Interference with the roster: Cases were allegedly shifted improperly to the Acting Chief Justice’s own Bench, in misuse of the master of the roster power.
    2. Pressure on colleagues: Judges were allegedly intimidated with the threat of retributive measures including transfers, on the basis of claimed proximity to the CJI.
    3. Favouritism at the Bar: The letters refer to specific instances of alleged favouritism towards a chosen few among the lawyers.
    4. Appointments outside the court: Nepotism is alleged in appointments to the Permanent Lok Adalat, the statutory body that decides disputes relating to public utility services and whose award is final and binding.
    5. The state of the record: There has been no official denial of the reports concerning the contents of the letters, and Justice Sharma has publicly denied the accusations as baseless.

    What is the record behind the appointment itself?

    1. A long acting tenure: The High Court functioned under an Acting Chief Justice for about 11 months, which is not a sound institutional arrangement for a court of that size.
    2. An earlier transfer out: Justice Sharma was transferred to the Patna High Court in 2022.
    3. A rejected repatriation: His request to return to the Rajasthan High Court was rejected by the Collegium in 2023, which instead proposed his transfer to the Punjab and Haryana High Court.
    4. A reversal without a stated reason: He was nonetheless retransferred to the Rajasthan High Court in 2025 and then allowed to function as Acting Chief Justice with wide administrative and judicial powers.

    How did the institution respond?

    1. The Bar acted first: Lawyers staged a sit-in protest on the High Court premises, following which Justice Sharma opted out from hearing cases.
    2. The Collegium moved on the vacancy: On 31 August the Supreme Court Collegium recommended the appointment of Justice Sanjay Agrawal as the new Chief Justice of the Rajasthan High Court, and that appointment has since been made.
    3. The complaint itself drew no step: For several weeks no cogent step was initiated on the letters, with the retirement date approaching.
    4. The trust cost is measurable: Transparency International’s 2002 report, based on a household survey, identified the judiciary as the second-most corrupt institution in certain South Asian countries including India.

    Why does the appointment system produce this?

    1. There are no criteria at all: The selection of judges proceeds without published standards against which a candidate can be assessed or a rejection explained.
    2. The Collegium and the Executive must collaborate: The unavoidable joint working of the Collegium and the Union Executive under the present system makes appointments partisan, opaque and often arbitrary.
    3. The filter cannot do the job asked of it: A process built this way is incapable of identifying the cleanest and most meritorious candidates.
    4. The link to corruption is direct: Corruption in the judiciary is inseparable from the method of selecting candidates for judicial office, so the accountability problem starts at entry rather than at removal.

    Why does the removal machinery not work?

    1. The inquiry statute is dormant: The Judges (Inquiry) Act, 1968 is inadequate to tackle judicial corruption and has for all practical purposes become defunct.
    2. A criminal investigation cannot begin: In K. Veeraswami vs Union of India (1991) the Supreme Court held that the permission of the CJI is a necessary precondition for registering a First Information Report against a judge of the higher judiciary. The requirement is circular in practice, because the police will not seek permission without clinching evidence and cannot obtain that evidence without investigating.
    3. Impeachment has failed as a route: Removal on the ground of proved misbehaviour or incapacity, as provided by Articles 124(4) and 217(1)(b) of the Constitution, has not worked in practice.
    4. The internal route has no teeth: The in-house mechanism adopted by the Supreme Court in 1999 has not proved fault-free or effective.
    5. The legislative fix lapsed: The Judicial Standards and Accountability Bill passed the Lok Sabha in 2012 and lapsed with the dissolution of the 15th Lok Sabha in 2014, and the later effort to revive it with changes remained a non-starter.

    What do other systems do differently?

    1. Canada invites applications: Candidates apply for judicial office rather than being identified privately, so the pool and the criteria are both visible before a selection is made.
    2. The United Kingdom uses an independent body: Judicial selection is conducted by a body separate from both the judiciary and the executive, which breaks the circularity of judges choosing judges.
    3. Neither is currently available in India: Both arrangements remain unthinkable in the Indian setting, which is why the accountability argument keeps returning to the removal stage rather than the entry stage.

    How have earlier Chief Justices responded to comparable situations?

    1. The 1990 precedent, advice to step back: When an inquiry was underway against Justice V. Ramaswami for alleged misconduct, the then CJI advised him to take leave and keep away from judicial work.
    2. The 1993 precedent, work withheld after a failed motion: The impeachment motion against him failed in Parliament following the Congress party’s strategic abstention. He attempted to resume judicial work with about nine months of tenure remaining, and the then CJI refused to allocate any cases to him for hearing.
    3. The recent precedent, immediate transfer: After partly burnt currency notes were reportedly found at the Delhi residence of Justice Yashwant Varma, the then CJI quickly transferred him to the Allahabad High Court, where he was practically not allocated judicial work.
    4. The Court’s own statement of the duty: In XXX vs Union of India (2025) the Supreme Court emphasised the responsibility of the CJI in matters relating to judicial integrity and allegations of corrupt practices.

    Challenges to judicial accountability in India

    1. Asset declaration rests on resolution rather than statute: Judges of the higher judiciary declare their assets under an internal resolution, so a failure to declare carries no legal consequence. Eg. Publication of the declarations on the Supreme Court’s website began only in 2025.
      The Fix: Place the declaration requirement in statute, with an annual filing deadline and a public register maintained by an authority outside the court.
    2. The selection record stays outside disclosure: The reasons recorded for an elevation, a rejection or a transfer are not published, so a questionable appointment cannot be traced to a reasoning. Eg. The 2023 rejection of a repatriation and the 2025 reversal of that position were never explained on the record.
      The Fix: Publish the Collegium’s recorded reasons for every recommendation and every transfer at the time the decision is communicated.
    3. The in-house procedure runs to no timeline: An internal inquiry proceeds at the discretion of the CJI, with no fixed stage limits and no published outcome. Eg. The procedure can end in advice to resign, leaving no finding on the record at all.
      The Fix: Fix statutory timelines for each stage of the inquiry and require publication of the finding, with reasons, on completion.
    4. Removal depends on parliamentary arithmetic: The final step turns on the numbers in both Houses rather than on the inquiry’s finding, so a party decision can defeat a proved case. Eg. No judge of the higher judiciary has ever been removed under the constitutional procedure.
      The Fix: Make an adverse inquiry finding trigger the automatic withdrawal of judicial work, so the consequence does not wait on a vote.

    Conclusion

    Two failures are operating at once and neither can substitute for the other. Entry into the higher judiciary is decided without published criteria, and exit from it is governed by a statute that has never produced a removal, which leaves everything in between resting on how quickly one officeholder chooses to act. That is not accountability but discretion, and discretion is what the present controversy has tested. The measure of what follows is whether a complaint carrying verifiable material now generates a recorded step with a date attached to it, rather than a retirement that closes the file.

    Back2Basics: The Collegium system

    1. What it is: The mechanism through which the higher judiciary selects its own judges, evolved through the Supreme Court’s judgments rather than from the text of the Constitution.
    2. Its origin: The Second Judges Case (1993) and the Third Judges Case (1998) read the word “consultation” in Articles 124 and 217 as requiring the concurrence of the CJI, and fixed the collegium’s composition.
    3. Its composition: The CJI and the four senior most judges of the Supreme Court decide Supreme Court appointments; the CJI and the two senior most judges decide High Court appointments and transfers.
    4. The failed replacement: The National Judicial Appointments Commission, created by the 99th Constitutional Amendment, was struck down by the Supreme Court in 2015 as violating judicial independence, leaving the collegium in place.

    Matching Previous Year Question

    “[2019] Consider the following statements: 1. The- motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968. 2. The Constitution of India defines and gives details of what Constitutes ‘incapacity and proved misbehaviour’ of the Judges of the Supreme Court of India. 3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, 1968. 4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of total membership of that House and by not less than two-thirds of total members of that House present and voting. Which of the statements given above is/are correct? (a) 1 and 2 (b) 3 only (c) 3 and 4 only (d) 1, 3 and 4 (c)”

  • Courtroom dramas, clipped and shared

    Why in the News

    The Supreme Court has barred the use and circulation of audio and video clips of judicial proceedings on social media and other digital platforms without prior permission from court registrars.

    What does the interim order leave unsettled?

    1. The stated reason: A Bench led by the Chief Justice of India said “isolated excerpts” risked “trivialising” the administration of justice.
    2. The carve out: The Court later clarified that “recognised news outlets” may continue reporting on proceedings, but may not “utilise” audio or video clips.
    3. The undefined term: The Court did not define “recognised news outlets”, which leaves independent journalists unable to tell whether they are covered.
    4. Who has been added to the case: High Courts and social media intermediaries, including Meta, LinkedIn and X Corp, have been brought into the proceedings while the Court considers a broader protocol.

    How was live streaming established as a right?

    1. The barrier that prompted the petition: Interns were allowed inside Supreme Court courtrooms only on certain days to prevent overcrowding, and litigants travelling from remote parts of the country often could not enter the courtroom hearing their own case.
    2. The ruling: In September 2018 the petition in Swapnil Tripathi v. Supreme Court of India culminated in a ruling recognising live streaming as part of the right to access justice under Article 21 of the Constitution.
    3. The reasoning: The public’s right to know how justice is administered is integral to a functioning democracy, on the principle that sunlight is the best disinfectant.
    4. The direction to High Courts: The Court urged High Courts to introduce live streaming gradually while framing rules to govern its use.
    5. The safeguards built in from the start: Matrimonial cases, sexual assault cases and proceedings involving children and juveniles were excluded from live streaming.

    How far has live streaming actually spread?

    1. The Supreme Court’s start: The Court began live streaming proceedings before its Constitution Benches in 2022. These Benches comprise five or more judges deciding substantial questions concerning the interpretation of the Constitution.
    2. The limit on coverage: The Court has 17 functioning courtrooms and largely streams only Constitution Bench hearings, which sit intermittently.
    3. The audience: The Court’s official YouTube channel has amassed over 2.67 lakh subscribers.
    4. A rare exception: A video of the suo motu hearing in the R.G. Kar rape and murder case, uploaded in September 2024, has been viewed nearly 48,000 times, and is one of the few instances of a rape case streamed on the channel.
    5. The High Courts: Live streaming was operational in 11 High Courts as of March 2026, per a statement to the Lok Sabha. Gujarat, Karnataka and Calcutta stream daily from a majority of their courtrooms.
    6. The first mover: The Gujarat High Court became the first to formally go live on YouTube in July 2021, and its channel now has nearly 1.97 lakh subscribers.

    Where does unauthorised courtroom footage actually come from?

    1. Virtual hearing access: The Supreme Court and the High Courts allow lawyers and litigants to join hearings virtually through platforms such as Cisco Webex, with links often published in the daily cause lists.
    2. How the links spread: Links are shared indiscriminately beyond litigants and lawyers, so anyone logged in can record the proceeding.
    3. Why the exclusion list does not hold: A High Court can pause streaming for a sensitive case while the virtual hearing continues, so footage from sexual offence, matrimonial and child custody matters has reached social media.
    4. The rule that already covers this: The Supreme Court e-Committee’s Model Rules of 2021 prohibit unauthorised dissemination of courtroom footage and its use for commercial, promotional or advertising purposes.

    Why is a permission regime contested?

    1. The shift it marks: Requiring an ordinary citizen to seek a registrar’s permission to share a proceeding that is already being live streamed converts open access into a permission regime.
    2. The procedural gap: There is no stated method for seeking permission, no ground on which it is to be granted or refused, and no recourse where it is refused.
    3. Who the exemption favours: An exemption confined to “recognised news outlets” advantages established media organisations over citizen journalists and smaller newsrooms.
    4. The inconsistency: A written account of a courtroom exchange remains permitted while a video clip faithfully reproducing the same exchange does not.
    5. The alternative safeguard proposed: Expanding live streaming and archiving on authorised platforms would let a complete official record expose a manipulated clip, which a circulation ban does not.
    6. Where a line is accepted: Artificially generated or doctored video should be prohibited, and faithful reporting permitted whatever the medium.

    What does the case for reporting oral remarks rest on?

    1. What an oral remark is: Judges use oral observations to test arguments, and a prima facie view expressed at the outset can change as arguments unfold. Such remarks do not necessarily reflect the reasoning recorded in the final order.
    2. Why they are still reported: Oral observations offer insight into judicial thinking and hold a mirror to the institution, which is the ground on which they are treated as reportable despite carrying no binding value.
    3. The precedent: Chief Election Commissioner vs M.R. Vijayabhaskar (2021) protected the reporting of oral remarks. The Supreme Court there stressed the role of public scrutiny in ensuring institutional accountability.
    4. The cost feared on the Bench: The prospect of being quoted out of context could make judges more circumspect and less willing to engage freely with counsel, and the litigant bears the consequence.
    5. The risk predates the medium: Oral remarks were misquoted in print long before social media, which locates the problem in reporting quality rather than in the format.
    6. What that implies for reporting: Court proceedings are technical, so an accurate account depends on journalists trained to follow what is happening.

    What has clipping already exposed about judicial conduct?

    1. The Karnataka episode: In September 2024 videos of a Karnataka High Court judge circulated online. He was seen referring to a Muslim dominated locality in west Bengaluru as “Pakistan” in one video, and making a sexist remark to a woman lawyer in another.
    2. The response to it: A Supreme Court Bench took suo motu cognisance within days and cautioned judges against “casual observations” reflecting communal bias or misogyny. The judge apologised and the proceedings were closed.
    3. A more recent instance: A reported reference to “cockroaches” by the Chief Justice of India during a hearing on fake law degrees drew widespread criticism and gave rise to the Cockroach Janta Party, which went on to lead protests against examination paper leaks. The remark was later said to have been misquoted.
    4. What draws an audience: Matrimonial and custody cases attract the most attention, with controversial matters drawing over one lakh views.
    5. The effect on the Bar: Lawyers use a judge’s remark to build a social media following, and a client who can watch the hearing is less willing to accept an unnecessary adjournment.

    How have the Bar and legal media responded?

    1. The Bar Council circular: In July 2026 the Bar Council of India prohibited reels and promotional content from court premises.
    2. The enforcement machinery it created: State Bar Councils were directed to designate social media ethics nodal officers to handle complaints. Lawyers were directed to submit a signed undertaking on professional social media conduct at the time of enrolment.
    3. The change in legal media: A legal news portal has largely shifted to explanatory videos without courtroom footage since the interim order, having earlier limited its edits to trimming pauses and removing litigants’ personal details.
    4. The editorial line already being drawn: Heated exchanges between the Bench and the Bar were withheld where, viewed in isolation, they could misrepresent what actually happened in court.

    What should a permanent protocol take into account?

    1. How news is consumed: People aged 18 to 24 citing social media as their main source of news rose from 21 per cent in 2015 to 39 per cent in 2025, overtaking news websites and apps, per a March 2026 Reuters Institute report.
    2. The nature of that consumption: Young audiences are increasingly “social first”, with much of their news reaching them incidentally rather than through a deliberate search.
    3. What that means for a video bar: Permitting an oral exchange to be reported in print while restricting its circulation as video sits at odds with how that audience actually receives news.
    4. The process objection: An institutional reform of this kind should involve all High Courts and other stakeholders rather than proceed as a unilateral decision.

    Challenges to regulating the circulation of courtroom footage

    1. A registrar is not a speech regulator: Prior permission to publish places a restriction on speech in the hands of an administrative officer, while Article 19(2) permits restriction only on stated grounds and by a law that is clear. Eg. In Shreya Singhal v. Union of India (2015) the Supreme Court struck down Section 66A of the Information Technology Act, 2000 for vagueness about what speech it punished.
      The Fix: Specify the classes of proceeding from which clips may not be circulated at all, so the restriction operates by defined category rather than by case by case permission.
    2. Enforcement begins only after publication: A clip that has circulated cannot be recalled, and removal depends on intermediaries acting on a notice. Eg. Blocking and takedown under Section 69A of the Information Technology Act, 2000 and the Information Technology Rules, 2021 operate after the content is already public.
      The Fix: Route the registry’s removal requests through the intermediary grievance officer channel with a fixed response time, and record each outcome on the case file.
    3. There is no authoritative record to check a disputed clip against: Most hearings are neither streamed nor archived, so a viewer cannot compare an excerpt with the full proceeding it came from. Eg. Transcripts of Supreme Court hearings were introduced only as a pilot for Constitution Bench matters in 2023.
      The Fix: Publish an official transcript and full recording for every streamed hearing, and treat that record as the reference against which a disputed clip is judged.
    4. Contempt is an uncertain remedy: Action against a distorted clip would rest on criminal contempt, which is discretionary and slow, and using it against reportage carries its own cost to free speech. Eg. The Contempt of Courts Act, 1971 makes fair and accurate reporting of proceedings a defence, so a distortion case turns entirely on interpretation.
      The Fix: Handle distortion through a fast correction and right of reply mechanism at the registry, and reserve contempt for deliberate fabrication.
    5. An exclusion list does not protect identity: A case outside the excluded categories can still identify a vulnerable party, since names, addresses and medical details are read out in open court. Eg. Bail and quashing matters routinely disclose a complainant’s identity in offences whose reporting is otherwise restricted by law.
      The Fix: Mask party identifiers in the streamed audio and in the published record, as judgments in sexual offence cases already do.

    Conclusion

    The order changes the default rather than the rules on any single case. The Court has not yet drawn the line between publishers who may use footage and those who may not, and the reach of the restriction turns entirely on where that line falls. The case returns to the Bench on 18 September, with the High Courts and the platforms now on record. The test of whatever protocol emerges is whether it separates a distorted clip from a faithful one, or merely separates one publisher from another.

    Back2Basics: The Supreme Court e-Committee

    1. What it is: A body of the Supreme Court that oversees the computerisation of the Indian judiciary.
    2. When it was set up: It was constituted in 2004 to advise on a national policy for information and communication technology in the courts.
    3. What it runs: It steers the eCourts Mission Mode Project, covering case information systems, electronic filing and virtual hearing infrastructure across district courts and High Courts.
    4. What it issues: It frames model rules on court technology for adoption by individual High Courts, which are free to modify them.

    [2014, GS2, 12 marks] What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.

  • SC pushes for raising retirement age in district judiciary as backlog tops 5 cr

    SC pushes for raising retirement age in district judiciary as backlog tops 5 cr

    Why in the News

    The Supreme Court has directed States to raise the retirement age of judicial officers in the district judiciary from 60 to 62 years. A three judge Bench headed by the Chief Justice of India passed the order on 1 September, and the text was published on Friday. The Court recorded that 5.18 crore cases lie pending in district courts across the country. It described stopping the attrition of experienced judicial talent as the “crying need of the hour”, warning that access to justice would otherwise remain “a mere chimera” because of unfilled posts. Only seven States have agreed so far. The rest have resisted on the ground of financial burden, which the Court has held to be arithmetically misconceived.

    What has the Court directed, and to whom?

    1. The seven States that agreed: Chhattisgarh, Karnataka, Madhya Pradesh, Maharashtra, Sikkim, Tamil Nadu and West Bengal have agreed to enhance the retirement age of their judicial officers.
    2. The deadline for them: These State governments have been directed to amend their service rules within two months.
    3. The condition attached: The High Court concerned will enhance superannuation to 62 years for an officer on attaining 60, subject to an assessment of that officer’s suitability.
    4. The States and Union Territories yet to agree: Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Goa, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Keralam, Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Punjab, Rajasthan, Telangana, Tripura, Uttarakhand, Uttar Pradesh, the National Capital Territory of Delhi, Jammu and Kashmir and Puducherry have responded with a direct refusal or have taken no position at all.
    5. The deadline for them: They have been directed to take a decision on enhancement to 62 years within two weeks.

    Why does the Court treat attrition rather than recruitment as the binding constraint?

    1. Recruitment has not filled the cadre: Most recruitment drives undertaken in the various States have not produced optimum recruitment or filled the sanctioned cadre strength.
    2. The gap is universal: A yawning gap between sanctioned strength and working strength persists across the board.
    3. Recruitment is slow by design: Selecting independent and competent judicial officers is an arduous task, so a post is not refilled at the speed at which it falls vacant.
    4. What that leaves as the available lever: Retaining an officer already in service is the only step that adds working strength without waiting for a recruitment cycle.

    Why does the Court reject the financial burden objection?

    1. What the States fear: States cite the cost of paying the maximum salary in the pay scale for a further two or five years, and a higher outlay on retiral benefits.
    2. The parity fear: States also apprehend that employees in other State services would demand the same extension for themselves.
    3. Why the Court calls that misconceived: Judicial officers render a specialised service, so an extension confined to them does not found a claim by other cadres.
    4. The 1992 precedent quoted: The alleged burden on the State exchequer is negligible against the enormous advantage the administration of justice and society at large derive from a higher retirement age.
    5. The double spend: A State that retains retirement at 60 pays post retiral dues to the officer who has left and salary to the officer newly appointed, in the same period.
    6. What continuation does to that cost: Allowing an experienced officer to serve to 62 postpones the post retiral outlay rather than adding to it.

    What safeguard have the High Courts proposed?

    1. Why most High Courts agreed: Most State High Courts consented to the enhancement because they are face to face with the crisis in the dispensation of justice.
    2. The rider: Some High Courts, including Madras, have recommended a thorough assessment of judicial work as a condition precedent to continuation in service.
    3. What the rider is for: Only competent officers of proven integrity would be permitted to continue in the cadre.
    4. The Court’s view of it: The suggestion preserves experienced officers while removing what the Court called the “clog of deadwood” that blocks the entrance of young blood into the system.

    Challenges to raising the retirement age in the district judiciary

    1. The sanctioned strength is itself inadequate: Extending tenure fills posts within an existing cadre, and the cadre was fixed against a judge to population ratio far below what has been recommended for India. Eg. The Law Commission’s 120th report of 1987 recommended 50 judges per million population, against a sanctioned figure that has stayed close to 21.
      The Fix: Revise sanctioned cadre strength against a stated case load norm, and attach a dedicated State budget line to the additional posts.
    2. A suitability assessment can become an informal removal power: Continuation to 62 will turn on a High Court’s assessment, which inserts a discretionary stage into a service that otherwise holds tenure until superannuation. Eg. Compulsory retirement of judicial officers on the administrative side has repeatedly been challenged before the Supreme Court.
      The Fix: Publish the assessment criteria in advance and require a written reasoned order with an internal review, so a refusal to extend can be tested.
    3. Court infrastructure does not expand with tenure: A retained officer needs a courtroom, support staff and record space, and district court infrastructure is funded through a centrally sponsored scheme that depends on State matching contributions. Eg. The Centrally Sponsored Scheme for Development of Infrastructure Facilities for the Judiciary has run since 1993-94 with persistent shortfalls in court halls and residential units.
      The Fix: Link the release of infrastructure funds to the number of judicial officers actually working in a district rather than to sanctioned posts.
    4. The promotion chain below is frozen: Officers waiting for elevation to the District Judge cadre and for High Court appointment from the service quota face a two year delay in every vacancy. Eg. Appointments to High Courts from the district judiciary already move slowly through the collegium process.
      The Fix: Expand the number of posts in the higher judicial service in step with the extension, so the vacancy chain continues to move.
    5. Pendency has drivers that bench strength does not reach: Adjournments, failure of service of summons and the volume of government litigation extend case life independently of how many judges sit. Eg. Government departments and their agencies remain the largest single class of litigant before Indian courts.
      The Fix: Enforce the three adjournment limit already written into Order XVII of the Code of Civil Procedure, 1908, and screen government appeals before they are filed.

    Conclusion

    The Court has converted a suggestion into a directed timeline, and the decision now sits with State governments rather than with the judiciary. Its reasoning treats the age of superannuation as the one lever that can be pulled without waiting for a recruitment cycle to conclude. The case is listed again on 1 October, by which time the States that have not responded are required to have taken a position.

    Back2Basics: The District Judiciary under the Constitution

    1. Article 233: The Governor appoints district judges in consultation with the High Court exercising jurisdiction in that State.
    2. Article 234: Persons other than district judges are appointed to the State judicial service by the Governor, under rules made after consulting the State Public Service Commission and the High Court.
    3. Article 235: Control over district courts and subordinate courts, including posting, promotion and leave of judicial officers, vests in the High Court.
    4. Why a State government must act: Conditions of service, including the age of superannuation, are fixed by rules the State government frames, so a High Court’s consent by itself does not change a retirement age.

    [2017, GS2, 10 marks] Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.

  • SC orders oversight of Bar Council decisions

    SC orders oversight of Bar Council decisions

    Why in the News

    The Supreme Court has held that the Bar Council of India (BCI) chairperson is serving only as a pro tem office holder whose term ends with the next election.

    What is the Bar Council of India?

    1. Statutory regulator of the legal profession: The BCI is constituted under the Advocates Act, 1961 to regulate advocates, legal education and professional conduct across India.
    2. Its legitimacy runs through bar elections: Its members are elected by the State Bar Councils from among their own members, so a lapsed election cycle at the State level freezes the central body too.
    3. The two law officers sit on it by office: The Attorney General and the Solicitor General are permanent ex officio members of the Council.
    4. A continuity provision guards against a vacuum: The proviso to Section 4(3) of the Advocates Act, 1961 allows the last chairperson or vice chairperson to continue until a new Council is in place.

    Why is the chairperson’s continuance in question?

    1. The Rules cap the term at two years: Rule 12(2), Chapter I, Part II of the Bar Council of India Rules fixes the maximum tenure of the BCI chairperson at two years, and the current term began on 17 April 2025.
    2. A notification stretched it to 2030: A gazette notification of 21 April 2025 notified the tenure of the chairperson and vice chairperson until 16 April 2030.
    3. A notification cannot override the parent statute: The Bench observed that a notification cannot go beyond the Rules or empower a body to grant itself additional tenure.
    4. Continuity has run for over a decade: Petitioners questioned an uninterrupted term as BCI chairperson of more than 12 years since November 2014.
    5. The anti vacuum proviso has been used to postpone elections: Petitioners argued that a provision meant to prevent an administrative vacuum has instead been used to avoid holding fresh elections and to perpetuate the existing office holders.

    What allegations were placed before the Court?

    1. A trust holding the Council’s assets: Petitioners questioned the formation of the BCI Pearl First Trust in 2020, in which the chairperson and other BCI office bearers are described as “permanent managing trustees”.
    2. The earlier trust’s finances were moved into it: The financial assets and incomes of the earlier BCI Trust were transferred to the new Trust.
    3. Trusteeship outlasts elected office: The office bearers would continue as permanent managing trustees even after their Council tenures expire, which the Bench questioned as elected members becoming permanent trustees beyond their capacity.
    4. A land arrangement with a State government: A tie up between the Trust and the Goa government proposes a university on 56 acres of land in that State.
    5. Expenditure on felicitations: Counsel described the financial expenditures pulled from BCI records on felicitations, running into crores, as “jolting”.
    6. Concentration of power over successive terms: Counsel for the petitioners argued that what the record shows over the years is a concentration of powers in the same office bearers.

    What did the NALSAR episode expose?

    1. An enrolment ban aimed at one graduating batch: The BCI made an aborted attempt to bar the professional enrolment of the National Academy of Legal Studies and Research (NALSAR) batch of 2026.
    2. The trigger was student dissent: The students had objected to the Chief Justice of India attending their convocation, dissenting against oral remarks that termed youths “cockroaches” and “parasites”.
    3. The reaction spread across national law universities: Students of the National Law Universities at Delhi and Bengaluru expressed solidarity with their NALSAR counterparts.
    4. The Court itself backed the protest: The Chief Justice of India supported the students’ right to protest, and questions arose over whether the chairperson had acted on his own.
    5. The measure was withdrawn: An apology was eventually issued and the enrolment bar did not take effect.

    Why has the Court chosen supervision over removal?

    1. The Bench declined to adjudicate the allegations now: The Court said it did not want to encourage “shadow boxing” around the allegations at this stage.
    2. The stated ground is institutional: It said it would intervene to maintain the “institutional integrity and credibility” of the BCI until the next bar body elections.
    3. Routine functioning is left undisturbed: The incumbent office bearers continue pro tem so that the Council’s day to day functioning is not interrupted.
    4. The check is prior and external, not appellate: Policy decisions now require prior notice to the two law officers and an invitation to them to participate, rather than review after a decision is taken.
    5. The regulator did not resist: Counsel for the BCI told the Court they welcomed the direction to take the concurrence of the highest law officers in policy matters.

    What does the election timetable require?

    1. Women members are co opted first: The Chief Justices of the High Courts must complete the co option of two women members to the State Bar Councils within a fortnight.
    2. Composition is notified next: Each State Bar Council must then notify its new composition within a week.
    3. Office bearers and BCI representatives follow: The newly constituted State Bar Councils must elect their chairperson, vice chairperson, other office bearers and one representative to the BCI within three weeks of notification of their composition.
    4. The central body is reconstituted last: The BCI is formed from those State representatives, so the pro tem arrangement ends only once the State level cycle finishes.

    Challenges to the Bar Council of India

    1. Elections are not self executing: Nothing in the statutory scheme compels the Council to go to the polls on schedule, so a continuity proviso can substitute for a mandate indefinitely. Eg. The present dispute reached the Supreme Court only because petitioners moved it, not because any internal trigger fired.
      The Fix: Write a fixed election calendar into the Advocates Act, 1961, with the continuity proviso lapsing automatically on a stated date.
    2. The regulator writes the rules it is bound by: The BCI frames the Rules governing tenure, enrolment and legal education, and no external body vets them before they take effect. Eg. The instrument extending the chairperson’s tenure was issued by the Council itself.
      The Fix: Require prior publication and a stated objection window for any Rule affecting tenure, enrolment or recognition.
    3. Legal education answers to two regulators: BCI control over law school recognition sits alongside the University Grants Commission’s authority over degree granting universities, so institutions face two sets of standards. Eg. National Law Universities are created by State Acts and funded as universities, yet their graduates’ right to practise depends on BCI enrolment.
      The Fix: Constitute a single joint standard setting body for legal education, with the BCI confined to professional entry.
    4. Discipline moves slowly by design: Complaints against advocates go to State Bar Council disciplinary committees, and a case not decided within a year transfers to the BCI, which lengthens the process rather than shortening it. Eg. Section 36B of the Advocates Act, 1961 provides for that transfer on the expiry of one year.
      The Fix: Publish disposal timelines and pendency data for every disciplinary committee, State and central.
    5. Entry testing does not feed back into approval: The All India Bar Examination tests an individual’s eligibility to practise, and it does not evaluate the law college that produced the candidate. Eg. Colleges retain BCI approval regardless of how their graduates perform in that examination.
      The Fix: Link a law college’s continued approval to the disclosed performance of its graduates in the Bar examination.

    Conclusion

    The Court has not removed the incumbent. It has bounded him. A regulator whose elections had lapsed is now supervised by the two law officers who already sat on it by office, and its bar elections have been put on a calendar the Court set. The unresolved part is structural. Judicial supervision arrived because the profession’s own rules carried no consequence for a Council that simply did not go to the polls. The marker to watch is whether the fresh Councils are constituted on that timetable, or the interim arrangement outlasts it.

    [2022] With reference to India, consider the following statements :

    1. Government law officers and legal firms are recognised as advocates, but corporate lawyers and patent attorneys are excluded from recognition as advocates.

    2. Bar Councils have the power to lay down the rules relating to legal education and recognition of law colleges.

    Which of the statements given above is/are correct ?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2