Appointment of Supreme Court Judges

Article 124 (2) of our celebrated  Constitution says 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 and it also had a proviso attached to it that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

In July 1998, The then President K R Narayanan  referred nine questions to the court for consideration and sought its opinion in the context of the 1993 S.C. Advocates-on-Record Assn vs Union of India case which "has laid down the principles and prescribed procedural norms in regard to the appointment of Supreme Court judges, Chief Justices and judges of the high court and transfer of judges from one high court to another."

A nine Judges Bench in In re Presidential Reference, AIR 1999 SC 1, laid down various propositions and the most important among it is "As to appointment of the Supreme Court Judges, the Chief Justice of India should consult a collegium of four seniormost judges of the Apex Court. Even if two Judge give an adverse opinion, the CJI should not send the recommendation to the Government."

This is the history behind the creation of the collegium system. This present legal position is that once the CJI and the collegium make a recommendation practically nothing can be done to change it. Once a judge is  appointed, it is practically impossible to remove him or her from office because the process of impeachment of a judge by Parliament is long and a kind of herculean task. 

The drafters of our Constitution might have never even thought of this kind of a system. The appointment of the Judges was the duty of the President which has to be done in consultation with the CJI. The Indian Judiciary has grabbed this from the hands of the President and the President now merely gives assent to their decisions. This is nothing but judicial amendment of the Constitution. The recent issues with regard to appointment of certain Judges to the Apex Court clearly indicates that the collegium system has failed. It is high time the Parliament bring in a Constitutional amendment to change this system. As rightly observed by Hon'ble Mr. Justice H. R. Khanna "if no provision were made for amendment of the Constitution, the people would have recourse to extraconstitutional methods like revolution".