What should be done in future?

♤ Power Balance: Law Commission, in its 2008 and 2009 reports, suggested that Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial appointments.

♤ System to ensure judicial primacy but not judicial exclusivity: The new system should ensure independence, accommodate the federal concept of diversity, demonstrate professional competence and integrity. The trend across liberal, constitutional democracies is towards such a commission which preserves judiciary’s primacy while also divorcing its membership from the executive.

♤ Criteria for Appointment: Eligibility criteria to judge the performance and suitability must be formulated objectively and must be made public. The reasons for appointment or non- appointment can be only understood well in the context of such a criterion. Recently Supreme Court Collegium has decided to put all its recommendations in Public Domain indicating the reasons.

♤ Early Finalisation of Memorandum of Procedure (MoP): SC in Justice Karnan case underlined the need to revisit the process of selection and appointment of judges to the constitutional court.

3.1.3. Other Judges of Supreme Court

3.1.3.1. Acting Chief Justice of India (Article 126)

In case the office of the Chief Justice is vacant or the CJI is temporarily absent or is unable to perform his duties, the President can appoint a judge of the Supreme Court as an acting Chief Justice of India.

3.1.3.2. Ad hoc Judges (Article 127)

In case of a lack of quorum of the permanent judges to hold or continue any session of the Supreme court, the Chief Justice of India can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period, provided the judge so appointed should be qualified for appointment as a judge of the Supreme court and this can be done only after consulting with the Chief justice of the concerned High Court with the prior consent of the President. It is the duty of the judge so appointed to attend the sitting of the Supreme Court, in priority to other duties of his office and while so attending he enjoys all the jurisdiction, powers and privileges of a judge of the Supreme Court.

3.1.3.3. Retired Judges (Article128)

The Chief Justice of India can request a retired judge of the Supreme Court or High Court to act as a judge of the Supreme Court for a temporary period. The President’s previous consent is necessary. Such a person will enjoy all the jurisdiction, powers and privileges of a Supreme Court Judge. But he will not otherwise be deemed to be a judge of the Supreme Court.