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Sansad TV: Bills and Acts- Judicial Appointments in India

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Introduction:

Union Law Minister Kiren Rijiju has said that the Centre respects the independence of judiciary and feels it is absolutely necessary for a thriving democracy.

Appointment of CJI:

  • The Chief Justice of India is traditionally appointed by the outgoing Chief Justice of India on the day of his (or her) retirement.
  • By convention, the outgoing Chief Justice of India selects the most senior then-sitting Supreme Court judge.

Some highlights:

  • From 1950 to 1973, the practice has been to appoint the seniormost judge of the Supreme Court as the chief justice of India.
  • This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
  • Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
  • This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Is it a part of the Constitution?

The Constitution of India does not have any provision for criteria and procedure for appointing the CJI. Article 124(1) of the Indian Constitution says there “shall be a Supreme Court of India consisting of a Chief Justice of India”.

  • The closest mention is in Article 126, which deals with the appointment of an acting CJI.
  • In the absence of a constitutional provision, the procedure relies on custom and convention.

What is the procedure?

The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary:

  • The procedure is initiated by the Law Minister seeking the recommendation of the outgoing CJI at the ‘appropriate time’, which is near to the date of retirement of the incumbent CJI.
  • The CJI sends his recommendation to the Law Ministry; and in the case of any qualms, the CJI can consult the collegium regarding the fitness of an SC judge to be elevated to the post.
  • After receiving recommendation from the CJI, the law minister forwards it to the Prime Minister who then advises the President on the same.
  • The President administers the oath of office to the new CJI.

Appointment needs overhaul:

  • Even in the constituent assembly debates this issue was taken up.
  • Article 324(2) as stated above states that the President shall, with aid and advice of Council of Ministers, appoint CEC and ECs, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.
  • But a law has not been enacted for the purpose so far.
  • Hence a PIL was filed in the Supreme Court seeking a fair and transparent procedure for appointment of CEC and ECs.
  • The constituent assemble debates in which one of the suggestion said that President will appoint them with the consult of the Prime Minister with two third majority of the joint sitting.

Appointment of the CJI and the appointment of SC judges- key difference:

In the former, the government cannot send the recommendation of the CJI (or the collegium) back to them for reconsideration; while in the latter, the government can do so. However, if the collegium reiterates those names, then the government cannot object any further.

Appointment of Judges:

  • The judges of the Supreme Court are appointed by the president.
  • The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
  • The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
  • The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

Way Forward:

  • 2nd ARC report recommended that collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members should make recommendations for the consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners
  • Law Commission 255th Report on Electoral Reforms: Strengthening the office of the Election Commission of India recommended Making the appointment process of the Election Commissioners and the CEC consultative
  • Similar election and removal procedure for CEC and Ecs.
  • Expenses of ECI must be charged expenditure on Consolidated Fund of India.