Discuss the procedure for the appointment of judges of the Supreme Court and High Courts and transfer of judges of the High Courts in the light of the decisions of the Supreme Court of India. Also refer to the constitutional provisions.

Constitutional Framework: Appointment of Judges

The Constitution of India lays down the framework for the appointment of judges. The process is governed primarily by Articles 124 and 217.

• Article 124(2): Provides for the appointment of the Chief Justice of India (CJI) by the President, and for appointment of other judges of the Supreme Court by the President on the recommendation of the CJI.
• Article 217: Deals with the appointment of judges to High Courts. It states that the President appoints the Chief Justice of a High Court and other judges of the High Court, on the recommendation of the CJI, and after consultation with the Governor of the State and the Chief Justice of the respective High Court.

Evolution of the Appointment Procedure: The Three Judges Cases

The initial interpretation of these articles gave the executive considerable power in judicial appointments. This was challenged in a series of cases collectively known as the "Three Judges Cases".

First Judges Case (1982) – A.K. Manek v. Union of India

The court held that the CJI had primacy in recommending appointments and that the executive’s role was merely advisory.

Second Judges Case (1993) – Supreme Court Advocates Bar Association v. Union of India

This case established the ‘Collegium’ system. The court stated that the CJI, along with two senior-most judges, constituted a Collegium which would recommend appointments. This effectively shifted the power of recommendation from the executive to the judiciary.

Third Judges Case (2002) – S.C. Advocates Association v. Union of India

The court clarified that the Collegium consisted of the CJI and the four senior-most judges of the Supreme Court. The Collegium's recommendations were binding on the executive.

The National Judicial Appointments Commission (NJAC) and the "Special Reference Case" (2015)

In response to concerns about the Collegium system’s opacity and lack of accountability, the Parliament passed the National Judicial Appointments Commission Act in 2014. The NJAC was intended to be a more transparent and inclusive body for judicial appointments.

However, the Supreme Court, in the "Special Reference Case" (2015), declared the NJAC unconstitutional, holding that it violated the basic structure of the Constitution and the independence of the judiciary. The court reaffirmed the Collegium system as the prevailing mechanism for appointing judges.

Current Appointment Procedure

The current procedure for Supreme Court appointments follows these steps:

1. The Collegium of the Supreme Court initiates the proposal.
2. Names are recommended to the government.
3. The government conducts preliminary inquiries.
4. The Collegium considers the government's feedback.
5. The President formally appoints the judge on the Collegium’s recommendation.

For High Court appointments, a similar process is followed, with the Collegium of the respective High Court playing a key role.

Transfer of High Court Judges

Article 217(3) allows the transfer of High Court judges to other High Courts. The process involves:

1. A formal request for transfer from the judge.
2. Consideration by the Collegium.
3. Consultation with the Chief Justices of the concerned High Courts.
4. Approval by the Supreme Court Collegium.
5. Notification by the Central Government.

The transfer process has often been controversial, with delays and disagreements leading to discontent among judges.

Feature	Appointment Procedure	Transfer Procedure
Constitutional Basis	Articles 124 & 217	Article 217(3)
Key Body	Collegium (CJI & senior judges)	Supreme Court Collegium
Role of Executive	Limited to preliminary inquiries and formal appointment	Notification after Collegium approval
Consultation	Governor (High Court appointments), CJI (both)	Chief Justices of concerned High Courts

Case Study: The delay in appointing judges to the High Courts due to differences between the Collegium and the government over certain names highlights the ongoing challenges in the appointment process. This has led to a backlog of cases and strained the judicial system. Question: Why is the Collegium system criticized? Answer: The Collegium system is criticized for its lack of transparency, opacity, and potential for bias. It is also perceived as being accountable to itself, rather than to the public. All India Judges Association (AIJA): This association represents judges of High Courts and Supreme Court and frequently voices concerns and recommendations regarding judicial appointments and transfers. While not a formal government scheme, its advocacy plays a role in shaping policy discussions. Basic Structure Doctrine: A legal doctrine established by the Supreme Court that holds that the Constitution has a basic structure that cannot be altered or destroyed even by constitutional amendments. The NJAC judgment was based on this doctrine. Pending Cases: As of December 2023, there were over 4.9 million pending cases in Indian courts (Source: National Judicial Data Grid). Delays in judicial appointments exacerbate this problem. Collegium System: A system of judicial appointments where a committee of senior judges recommends candidates for appointment to the higher judiciary. Vacancy Rate: As of March 2024, there were 30 vacancies in the High Courts and 6 vacancies in the Supreme Court. (Source: Government data)