Background

The Constitution of India under Article 124 states that

♤ Chief Justice of India (CJI)- is appointed by the President after consulting such judges of the Supreme Court and High Courts as the President deems necessary.

♤ Judges other than CJI- are appointed by the President after consulting with the Chief Justice of India and other SC and HC judges as he considers necessary.

Initially, the Executive had a primacy and role of Judiciary was more advisory, as the word consultation was not binding on the President. Subsequently, the Supreme Court has given different interpretation of the word ‘consultation’ in the three Judges cases. As a result of this, the word ‘consultation’ has more or less acquired the meaning of ‘concurrence’.

3.1.2.1. Collegium System

The Supreme Court created the Collegium system where a committee of the Chief Justice of India, four senior judges of the Supreme Court take decisions related to appointments and transfer of judges in the Supreme Court.

The appointment of Chief Justice of India is done in accordance with the Second Judges case (1993), in which the SC ruled that the senior-most judge should alone be appointed to the office of CJI.

Three Judge Cases

♤ First Judges Case, 1981 or S P Gupta Case: The Supreme Court ruled that the recommendation made by the CJI to the President can be refused for “cogent reasons”, thereby giving greater say to executive.

♤ Second Judges Case, 1993: It is also known as Supreme Court Advocates-on Record Association vs Union of India. CJI only need to consult two senior-most judges over judicial appointments and transfers. However, on objection raised by executive on appointment, Collegium may or may not change their recommendation, which is binding on executive.

♤ Third Judges Case, 1998: On the Presidential Reference, the SC gave its judgement. CJIs should consult with four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers.