In News:

• The Ministry of Law and Justice sought Chief Justice of India U.U. Lalit’s recommendation for appointment of his successor.

What’s in Today’s Article:

• The appointment process of SC judges (Constitutional Position, Controversy, Evolution of Collegium System, Memorandum of Procedure)
• Appointment process of Chief Justice of India
• News Summary

In Focus: Appointment Process of SC Judges

Constitutional Position

• Article 124(2) of Indian Constitution deals with the appointment of Judges of Supreme Court. As per this article:
  • Every judge of SC is to be appointed by the President.
  • President will consult such judges of the SC and of the HCs in the States as the President may deem necessary.
  • CJI shall always be consulted in case of the appointment of judge other than the Chief Justice of SC.

Controversy over the Word Consultation

• The constitutional provision gave the CJI and other judges the status of consultant and left the decision of appointment to the executives.
• This has been interpreted by the SC in a different way ultimately leading to the evolution of Collegium system.

Evolution of Collegium System

• The current collegium system has evolved over a period of time through the judicial pronouncements. These cases have been mentioned as below:
  • First Judges Case (1982)
    • SC held that consultation does not mean concurrence
    • Gave Primacy to Executive
  • Second Judges Case (1993)
    • Court reversed its earlier ruling by changing the meaning of consultation to concurrence.
    • Advice tendered by CJI is binding.
    • CJI would take into account the views of two of his senior most colleagues.
  • Third Judges Case (1998)
    • Court gave primacy to the opinion of CJI in the matter of appointment of Judges.
    • However, Chief Justice must consult four seniormost judges of SC.
    • Opinion of all members of the collegium should be in writing.

Memorandum of Procedure (MoP)

• Currently, Judges are appointed by Memorandum of Procedure (MoP).
  • MoP is a crucial document agreed upon by the government and the judiciary on appointment of judges.
• Since Collegium system is a judicial innovation (not mandated through legislation of constitutional texts), MoP was brought into working.
• MoP fixes the protocol under which the collegium system works.

Appointment of Chief Justice of India (CJI)

• As per the MoP, appointment to the office of the Chief Justice of India should be of the senior-most judge of the Supreme Court considered fit to hold the office.
• The process of appointment of CJI begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.
  • The Minister has to seek the CJI’s recommendation at the appropriate time.
    • The Memorandum does not elaborate or specify a timeline.
  • Usually, the Law Minister sends his request and the outgoing CJI makes his recommendation with a month to spare before his retirement.
• After receipt of the recommendation of the CJI, the Law Minister puts it before the Prime Minister who advises the President in the matter of appointment.
• After the recommendation process, once a new CJI is designated, as per convention, the Collegium headed by the outgoing CJI also freezes.
  • In other words, no new recommendations for judicial appointments are made when the appointment process for the next Chief Justice of India is on.

News Summary

• With a month left for the retirement of Chief Justice of India U U Lalit on November 8, the government has initiated the process for the appointment of the next CJI.
• Union Minister for Law and Justice has written to CJI Lalit, seeking his views on appointing the next CJI.
• Customarily, the senior most judge of the Supreme Court is appointed the CJI.
  • Justice Dhananjaya Y Chandrachud, who is the most senior judge in the top court, is set to take over as the 50th CJI on November 9.
  • He will have a term of two years as the head of the judiciary in India, and will retire on November 10, 2024.