Appointment of judges to the Supreme Court and High Courts

Appointment of judges to the Supreme Court and High Courts

Subject :Polity

Section: Judiciary

Context:

• Congress MP Manish Tewari had asked the government whether it is a practice to seek R&AW reports for appointment of judges to the Supreme Court.

What was Government Response:

• The government told the  Parliament that except for cases related to national security, it is not a practice to seek R&AW reports on proposals for appointment of judges.
• As per the Memorandum of Procedure for Appointment of Judges the proposals recommended by the Collegium for appointment as Supreme Court and High Court judges , are to be considered in the light of such other reports/inputs as may be available to the government for assessing the suitability in respect of the names under consideration. Accordingly, IB inputs are obtained and provided to the SCC for making assessment on the recommendees,

What is the Memorandum of Procedure(MoP):

• The MoP is the playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document because the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.
• The MoP has evolved as the standard based on three decisions of the Supreme Court, known as the First Judges Case (1981), Second Judges Case (1993) and the Third Judges Case (1998). These three judgments form the basis of a peer selection process for the appointment of judges.
• The MoP was first drawn up in 1999. It was re-negotiated in 2016 following the Supreme Court’s decision to strike down National Judicial Appointments Commission (NJAC)

Process of Appointment of Judges:

• Article 124(2) says that the President of India Shall appoint the judges after consultation with such a number of Judges of the SC/HC as he deems necessary. For appointment of any Judge of SC (other than CJI), the CJI must be consulted.
• The three Judges case of 1981, 1993 & 1998 has formalised the collegium system for the purpose of consultation.
• The collegium for appointing SC judges consists of the CJI and 4 senior-most judges of SC.
• Memorandum of Procedure (MoP) was set up after the Third Judge Case of 1998 to provide the process of how the Collegium would recommend names to the Executive.

The President of India can either accept the recommendation or send it back for reconsideration. The reconsidered advice must be accepted by the President.