Discuss the procedure for the appointment of the Judges of the Supreme Court in the light of the recent decisions and the opinions of the Supreme Court of India. Or How are the Judges of Supreme Court appointed ? Discuss with reference to decided cases.
Ans. Procedure for the appointment of the Judges of the Supreme Court.—According to Article 124 (2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years, provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
In S. P Gupta v. Union of India, AIR 1982 SC 1449, the Supreme Court has held that the President is not bound to act according to such consultation.
This case was overruled by S.C. Advocates on Record Association v. Union of India, AIR 1994 SC 268, in which it was held that the opinion of the Chief Justice of India in the process of consultation in the matter of selection and appointment of the Judges of the Supreme Court and the High Courts should have primacy. Here the opinion of the Chief Justice of India means the opinion formed by him collectively, i.e., after taking into account views of his senior colleagues. The greatest significance should be attached to the view of the Chief Justice of India formed after taking into account the views of two senior most Judges of the Supreme Court.
In re Presidential Reference, AIR 1999 SC the Supreme Court (9 Judges Bench) unanimously held that the recommendation made by the Chief Justice of India on the appointment of Judges of the Supreme Court and the High Courts without following the consultation process are not binding on the government. It was held that consultation with the Chief Justice of India means consultation with the plurality of Judges. In regard to the appointment of judges to the Supreme Court under Article 124 (2) the Chief Justice of India should consult “a collegium of four senior most judges of the Supreme Court”. The collegium must include the successor Chief Justice of India. The opinion of the collegium must be in writing.