How Supreme Court Judges are appointed: Selection process & collegium system explained

The Indian Judicial system follows both merit-based and collegium-based appointment processes. Unlike the federal structure where the executive and legislature are separate at the union and state levels, the judiciary has a single uniform structure in India with the Supreme Court of India at the top. At the lower level of judicial architecture, recruitments are merit-based with typical judiciary examinations conducted by the state public service commissions. However, the collegium-based appointment system comes at the top of the judicial hierarchy, the judge's appointments at the High Court and Supreme Court. The collegium system of appointment of judges at the Supreme Court and High Courts has not been bereft of criticism for the ambiguity and arbitrariness it brings into the system. However, keeping the criticism of the collegium system aside, this article looks into the appointment process of judges in the Supreme Court of India. Read the complete article below.

This Story also Contains

1. Appointment of Supreme Court Judges: Constitutional provisions
2. Composition of Supreme Court of India
3. Appointment of Judges in the Supreme Court of India
4. Appointment of judges through collegium: Summary and operational conclusion
5. Appointment of Judges other than the CJI in the Supreme Court

Appointment of Supreme Court Judges: Constitutional provisions

Article 124 of the Indian Constitution deals with the appointment of Supreme Court Judges. The provision talks about the composition of the Supreme Court of India, appointment, tenure of Judges, age limit, conditions of disqualification, oath and affirmations among others. The simplified version of the relevant article and its clauses are given below.

Composition of Supreme Court of India

The first clause of Article 124 provides for the establishment of a Supreme Court of India consisting of a Chief Justice of India and up to seven other judges.

The Parliament of India can increase the number of Supreme Court judges by passing a law. Consequently, the parliament passed the Supreme Court (Number of Judges) Act, 1956 to increase the number of judges in the Supreme Court of India. The Act has been amended from time to time to keep up with the increasing work pressure of the judiciary. The most recent amendment was made in August 2019 when the total number of Supreme Court judges was increased from 30 to 33.

Appointment of Judges in the Supreme Court of India

Article 124 (2) deals with the appointment of judges in the Supreme Court. The provisions say that all the judges in the Supreme Court of India will be appointed by the President of India in consultation with the judges of the Supreme Court and High Court as the President may deem necessary.

The word “Consultation” raised the question of whether the President has to abide by the consultation or not. The second question was about the composition of such a committee (collegium). The four judges' cases have tried to address these questions.

The collegium system for judges' appointments has evolved from these cases over a period of time. Here is the summary of the collegium system for Supreme Court Judges' appointment.

Appointment of judges through collegium: Summary and operational conclusion

The above four cases have shaped the current collegium system for the appointment of judges. It must be noted that no article of the Indian Constitution mentions the word “Collegium” for judicial appointments.

Composition of Collegium

The Supreme Court Collegium is headed by the Chief Justice of India and four other senior-most judges are part of it. In the case of High Courts, the Collegium comprises of Chief Justice of the concerned High Court along with four senior-most judges from that Court.

Appointment of Supreme Court Judges: The Procedure

The appointment process can be divided into two parts for a better understanding of the process in the context of the Constitution, current traditions and the four judges’ cases.

How is the Chief Justice of India Appointed?

1. The senior-most judge of the Supreme Court is appointed as the Chief Justice of India.

2. The outgoing Chief Justice of India, at an appropriate time, gives the recommendation to the Law ministry regarding the appointment of the next Chief Justice of India.

3. In case of any doubt regarding the seniority or fitness of the judge for the office of CJI, consultation with other judges will be made.

4. Once the Union Law Ministry receives the recommendations, the Minister will forward the recommendation to the Prime Minister who in turn will advise the President of India regarding the appointment of CJI.

Appointment of Judges other than the CJI in the Supreme Court

1. Whenever there is a vacancy in the Supreme Court, the Chief Justice of India sends a proposal and recommendations to the Ministry of Law to fill up the vacancy.

The recommendation of CJI is nothing but the Collegium recommendations consisting of CJI and four senior-most judges which also includes the successor CJI.

Additionally, the views of the senior-most judge who hails from the High Court where the recommended person comes will be taken into consideration. Views of other Supreme Court judges will also be taken if they have occupied the office of judge or Chief Justice in that High Court.

2. The recommendation of the collegium and the senior-most judge of that High Court will be made in writing to the Ministry of Law.

3. The ministry will put the recommendations to the Prime Minister who will advise the President in the matter of appointment.

Further, the person recommended for the office of the Supreme Court must be medically fit. The person has to submit a medical certificate signed by the civil surgeon or medical officer.

4. Once the President signs the warrant of appointment, the Department of Justice and Ministry of Law will issue the appointment in the Gazette of India.

Eligibility for appointment

The Article 124 (2) also provides that the Supreme Court Judge shall meet the following conditions:

• The person must be a citizen of India

• The person must have been a Judge of a High Court or two or more Courts in succession for at least five years

Or, has been an advocate of a High Court or of two or more such Courts in succession for at least 10 years

Or is a distinguished jurist in the opinion of the President

Supreme Court Judge Age Limit

The Indian Constitution leaves the matter of age limit to the parliament. There is no age limit for the appointment of the Supreme Court Judge. However, the retiring age of the SC judge is 65 years as per the Constitutional provision.