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Appointment and Transfer of SC and HC Judges: Analysis

In India, the appointment of Supreme Court and High Court judges was previously determined by the President, in consultation with the Chief Justice of India and other judges. The procedural guidelines for judicial appointments were defined in Article 124 and Article 217 of the Indian Constitution.

Since 1993, the responsibility for appointments and transfers of judges in the higher judiciary has been assigned to the Collegium system developed by the Supreme Court. The nominal appointing authority is the President of India.

In the Collegium system, the Chief Justice of India and the four most senior colleagues recommend candidates for appointment as Supreme Court and High Court judges to the President through the Union Minister of Law and then via the Prime Minister.

Currently, the Collegium consists of six judges instead of five. This change occurred because none of the four most senior judges are eligible to become the next Chief Justice of India (CJI), and the next CJI requires to be a part of the Collegium. Therefore, Justice Sanjiv Khanna currently serves as the sixth member of the Collegium and will succeed Chief Justice DY Chandrachud as the next CJI.

The establishment of the Collegium system can be attributed to the inherent disagreements between the executive and judiciary branches. Interestingly, this system is not explicitly outlined in the Indian Constitution but has evolved through a series of landmark Supreme Court judgments collectively known as the Three Judges Cases (1981, 1993, and 1998).

Collegium System and its Evolution

The process of appointing and transferring judges has been shaped primarily through Supreme Court rulings, rather than being established by a specific law or constitutional provision.

The First Judges Case in 1981 established that the Chief Justice of India's recommendations on judicial appointments and transfers could be rejected with "cogent reasons." This ruling granted the Executive branch more power than the Judiciary when it came to appointing judges for a span of 12 years.

In the Second Judges Case (1993), the Collegium system was introduced. The case clarified that "consultation" meant "concurrence," emphasizing that it was not just the Chief Justice's individual opinion, but rather an institutional opinion formed through consultation with the two senior-most judges in the Supreme Court.

In the Third Judges Case (1998), the Supreme Court expanded the Collegium to include five members including the Chief Justice of India.

Head of Collegium System

The Supreme Court collegium, headed by the Chief Justice of India (CJI), consists of the other four most senior judges of the Supreme Court.
Similarly, each High Court collegium is led by its Chief Justice and includes two other senior judges from that court.

It is important to note that judges in higher judiciary positions are appointed exclusively through the collegium system. The government's role comes into play only after the names have been decided upon and recommended by the collegium.

National Judicial Appointment Commission
The central government's attempt in 2014 to replace the collegium system with a "National Judicial Appointments Commission" (through the Ninety-ninth Amendment Act, 2014) was deemed unconstitutional by the supreme court in 2015. The court ruled that this move threatened the independence of the judiciary. In 2015, the Supreme Court declared the NJAC Act (2014) as "unconstitutional and void" after receiving Writ Petitions that claimed it violated the independence of judiciary. When the NJAC Act was passed by Parliament, Chief Justice H.L. Dattu declined to participate in it. Following its rejection, then Union Minister Arun Jaitley, who was also a senior lawyer, stated that Indian democracy cannot become a tyranny of the unelected.

Memorandum of Procedure (MoP)

The Memorandum of Procedure (MoP) is a framework delineating the process for appointing and transferring judges to India's Supreme Court and various High Courts. It was crafted in consultation with the Chief Justice of India by the government and was initially issued in November 1947, subsequently undergoing revisions.

The central government's authority to accept or refer back the collegium's recommendations for judges' appointments and transfers is primarily grounded in the Memorandum of Procedure (MoP). Although the MoP isn't a statutory law, it functions as an administrative guideline developed through dialogues between the government and the judiciary. It provides a structured approach for proposing, assessing, and potentially revisiting recommendations.

Within the framework of the MoP, the central government possesses the capacity to request additional information, articulate concerns, or return recommendations to the collegium for re-evaluation. However, the final authority to appoint judges lies with the collegium system, where a group of senior judges make recommendations for appointment. The President of India after getting the recommendations of the collegium from the Union Law Minister via the Prime Minister, then formalizes these appointments.

The Memorandum of Procedure (MoP) is subject to periodic amendments and revisions. Its interpretation may evolve over time in alignment with consensus and legal understandings. The MoP strives to strike a balance between preserving judicial independence and acknowledging the government's role in the appointment process. It has been a topic of discussions and debates within India's legal and political landscape.

The Memorandum of Procedure (MoP), initially formulated in accordance with the Second Judges case, was found to be unsatisfactory in the Fourth Judges case. It was then directed to be revised. However, it has been more than a decade since then, and the revision and notification of the MoP are still pending. In the order dated October 27, 2017, issued in R.P. Luthra case by a bench comprising Adarsh Kumar Goel and Uday U. Lalit JJ., the Supreme Court called upon the Attorney General to consider that "there should be no further delay in the finalization of MoP in larger public interest." Surprisingly though, within just 15 days, another bench consisting of Dipak Misra CJ., A.K. Sikri and Amitava Roy JJ., recalled this order and disposed of the case. As a result, the revision of MoP remains pending.

Procedures for Judicial Appointments

For Chief Justice of India
The President of India appoints the Chief Justice of India and the other Supreme Court judges. As far as the CJI is concerned, the outgoing CJI recommends his successor via the Union Law Minister and Prime Minister to the President. In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

For Supreme Court Judges
For other judges of the Supreme Court, the proposal is initiated by the Chief Justice of India. The CJI consults the rest of the Collegium members, as well as the senior most judge of the court hailing from the High Court to which the recommended person belongs. The consultees must record their opinions in writing and it should form part of the file. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President for giving appointment.

For Chief Justice of High Courts

The appointment of Chief Justices to the High Court follows a specific policy aiming to have Chief Justices from outside the respective states. The Collegium takes the call on the elevation. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges of the High Court. The outgoing Chief Justice of the High Court initiates the proposal, in consultation with two senior colleagues.

The recommendation is sent to the Chief Minister along with a copy to the CJI and the Union Law Minister. The Chief Minister in turn with his/her opinion sends the proposal to the Union Law Minister. The Union Law Minister sends the proposal along with its views and connected papers to the Supreme Court Collegium. The Collegium thereafter sends its recommendation to the President for appointment through the Union Law Minster and Prime Minister.

For High Court Judges
The Memorandum of Procedure (MoP) provides detailed guidelines for appointing High Court judges.

For appointments or elevations to the High Courts, the HC collegium (The HC Chief Justice + 2 senior-most judges) must send a recommendation to the Chief Minister along with a copy to the CJI and Union Law Minister.

The Union Law Ministry gives the names to the Intelligence Bureau (IB) to conduct background checks. The IB then sends its report to the Union Law Ministry. The Union Law Ministry along with its views, State Government's report, and IB report sends the recommendation of the Chief Justice of the High Court to the Supreme Court Collegium.

The Collegium thereafter sends its recommendation to the Union Law Minister. The Union Law Minister may send the file back to the collegium for reconsideration, if any. The Collegium has the right to reiterate the names sent back by the Union Law Minister for reconsideration. If the SC Collegium reiterates a name, the Centre is bound to appoint the candidate (But there is no time limit fixed for doing so).

When a consensus is reached between the collegium and the Union Law Ministry, the recommendations of the SC collegium is sent by the Union Minister of Law to the Prime Minister, who in turn advises the President about the appointment.

The Supreme Court collegium in January 2023 issued a strong reminder to the Union Law Ministry, emphasizing that once the judges' selection body (SC Collegium) reconfirms a recommendation for a judicial appointment, it is mandatory and binding for the Central Government. This clarification is significant in determining the jurisdiction of the judges' selection body under these circumstances. (Source:, Jan 12, 2023)

Timeline regarding the process of appointment of Judges
The Government of India prepared a Memorandum of Procedure (MoP) in the year 1999 in consultation with the Chief Justice of India. According to the MoP, the following steps and timeline are prescribed for the appointment by constitutional functionaries:
  1. The Chief Justice of the High Court sends recommendations from the High Court Collegium for permanent Judge appointments to both the Chief Minister of the State and the Chief Justice of India, endorsing a copy to Union Law Minister. - 6 months before the vacancy arises.
  2. The Chief Minister then shares their comments on these recommendations with the Union Law Minister within six weeks after receiving them. If no response is received within this timeframe, it will be assumed that there are no additional comments from the Chief Minister.
  3. The Union Law Minister forwards recommendations from all parties involved � including those from State Government, Intelligence Bureau, and personal opinion � to Supreme Court's Chief Justice without specified timeline.
  4. At this point, views from Supreme Court Judge(s) who possess knowledge about affairs related to that particular High Court are obtained by Chief Justice of India � also without a specific timeline mentioned.
  5. The Supreme Court Collegium will send its recommendation to the Union Law Minister after four weeks of consultation with the consultee Judges.
  6. The names can be returned by the Law Minister for reconsideration if specific reasons are provided or submitted directly to the Prime Minister, preferably within 3 weeks of the Supreme Court Collegium's recommendation.
  7. Prime Minister to advise the President for the appointment - No timeline specified.

The Supreme Court has established a new timeline for appointing High Court Judges:
  1. According to the guidelines, the Intelligence Bureau (IB) is required to submit its report within 4 to 6 weeks of receiving the recommendation from the High Court Collegium.
  2. Law Ministry to forward recommendations to the Chief Justice of India - 8 to 12 weeks of receipt of inputs from the State Government and IB.
  3. The Government of India to make appointment - 3 to 4 weeks of the recommendation of the Supreme Court Collegium, if not sent back.
It is pertinent to note that timeline has not been prescribed for several stages of appointment resulting in undue delay in appointment of Supreme Court and High Court Judges.

Process of appointment of Judges in other major countries:
  1. In South Africa, the process of selecting judges involves a 23-member Judicial Services Commission (JSC). This commission advises the President on which individuals to nominate for judicial positions.
  2. In countries like Argentina and Brazil, the President has the power to nominate judges. However, these nominations must be approved by their respective Senates.
  3. In the UK, the responsible body for overseeing judges' appointments is the independent Judicial Appointments Commission (JAC). The JAC comprises 15 members, including three judges and 12 individuals selected through an open competition process.
  4. In the United States, judges of the Federal Court are appointed by the President with the advice and consent of the Senate. Before a vote in the Senate, candidates are evaluated by a committee from the American Bar Association and reviewed by the Senate Judiciary Committee. Unlike some countries, there is no specific retirement age for judges in the US. They continue to serve as long as they demonstrate "good behaviour."
  5. In France, judges are appointed by the President, who takes recommendations from the Higher Council of the Judiciary. Judges initially serve for three years and can be reappointed based on recommendations from the Ministry of Justice.

Criticism of Collegium System
The Collegium system has faced criticism for being labelled as 'unconstitutional,' plagued by opacity, casteism, and nepotism. Article 124 and Article 217 of India's Constitution don't mention the Collegium system for judge appointments. Dr. B. R. Ambedkar, the Chairperson of the Drafting Committee, even called it 'dangerous' during the Constitution's drafting.

The judiciary is expected to be not only independent but also 'competitive.' A report revealed a significant percentage of judges in higher courts having family ties to the judiciary, primarily from upper social segments. Despite Article 124(3) suggesting the inclusion of 'distinguished jurists,' appointments often seem biased in favour of judges and well-connected senior lawyers, potentially overlooking talent. Key issues include lack of transparency, scope for nepotism, embroilment in public controversies, and missed opportunities for talented junior judges and advocates.

Arguments in favour of Collegium System
The order to invalidate the National Judicial Appointments Commission (NJAC) in India primarily aimed to protect the independence of the judiciary, a fundamental element of a democratic system. The Supreme Court's reasoning was rooted in the argument that involving Executive officials in the process could fundamentally undermine the foundational principle of judicial independence.

The concern was that when government viewpoints influenced judicial appointments and decisions, it could cast doubt on the judiciary's capacity to act impartially and free from external pressures.

Although not every case may result in biased or unfair judgments, the maxim from the 1924 case 'The King v. Sussex Justices ex parte McCarthy' by Lord Hewart remains relevant - "justice must not only be done but must also be seen to be done." In simpler terms, justice not only needs to be fair but also appear as such to maintain public trust and confidence.

The participation of Executive officials in the judicial process could create uncertainty about the fairness of judgments. This could erode the fundamental principle of judicial independence and compromise the public's perception of justice being administered in a fair and impartial manner.

Furthermore, the compromise of the judiciary's integrity by the ruling government's interests erodes democratic principles. The intertwining of the judicial process with the Executive and Legislature introduces the potential for unconstitutional actions and malpractice. In a democratic society, the judiciary plays a pivotal role in upholding the system of checks and balances.

When the government wields too much influence over the legal system, it not only undermines the rule of law but also poses a threat to democratic principles. Any infringement on the independence of the legal system can erode these fundamental values.

To sum up, the judgment to annul the NJAC was rooted in the acknowledgment of the indispensable role of an independent judiciary in sustaining a functioning democracy. Introducing external influences that compromise this independence could have serious and detrimental effects on the integrity and function of both the legal system and democratic governance.

Cases of opaque transfer of Judges
In 2019, the Madras High Court's Chief Justice at the time, V.K. Tahilramani, was transferred to the Meghalaya High Court. She ultimately resigned following the transfer. Reports suggested that her transfer was a reaction to her judgment in the Bilkis Bano case related to the Gujarat riots in 2002. During her tenure at the Bombay High Court, Tahilramani had awarded life imprisonment to 11 individuals involved in gangraping a Muslim woman during those riots.

Justice Jayant Patel resigned from his position as Acting Chief Justice of Gujarat High Court when he was transferred to Allahabad High Court after ordering an investigation into Ishrat Jahan's murder by Gujarat police officers in 2004.

The transfer of Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court as Chief Justice raised concerns about the authority of the Supreme Court Collegium in overseeing the performance of Chief Justices in High Courts. Justice Banerjee had issued judgments that criticized the government's handling of the Covid-19 Pandemic and expressed disapproval of large election rallies.

The Madras Bar Association and 237 lawyers from the Madras High Court raised concerns about transparency in judicial transfers and its potential impact on judicial independence, drawing parallels to "punishment transfers" observed during the Emergency period.

Justice S. Muralidhar of the Delhi High Court faced a transfer by the Union Government just after making critical remarks about Delhi Police while handling a case related to the Delhi riots. This move led to protests by the Delhi High Court Bar Association.

Justice Akil Kureshi also experienced an unexpected and undesired transfer when he was expected to become Chief Justice of the Gujarat High Court but was instead transferred to become fifth in seniority at Bombay High Court.

There was criticism surrounding one Senior Judge of Gauhati High Court who was transferred based on reports suggesting involvement in various judicial and administrative issues.

These instances highlight cases where judges were allegedly subjected to transfers for reasons that were seen as politically motivated or due to their judgments that went against the interests of people in power.

Several retired Supreme Court Judges, who were previously part of the Collegium, have expressed criticism of its functioning in public. Justice Madan B. Lokur published an article in 2019 titled "Collegium is accustomed to controversies, but its recommendations are now under attack," specifically addressing concerns about Judge transfers.

In 2020, Justice Chelameswar mentioned during an interview that he never fully understood why certain High Court Judges were being transferred. Justice Ruma Pal referred to the Collegium as "possibly the best kept secret in the country" during the 5th V.M. Tarkunde Memorial Lecture in 2011. From these statements, it is clear that sometimes there are immense pressure on the collegium from the government regarding appointment and transfer of judges.

However, for a vibrant democracy and rule of law, it is imperative that the SC Collegium works without fear or favour and doesn't buckle under any sort of pressure. Further, a timeline should be prescribed for each stage of appointment to prevent undue delay in appointment of Supreme Court and High Court Judges.


Written By: Md.Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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