Appointment of Judges in Higher Judiciary: An Interpretational Riddle

Abstract

This paper deals with the Constitutional framework for the appointment of appellate judges in India. The original framework consists of a 'consultative process' between the Executive and the Judiciary. For the first four decades, after the framing of the Constitution, this practice was followed in a decent manner with few controversial episodes. But after the Second Judges Case in 1993, the Supreme Court has done away with the existing consultative process and evolved a new system for appointment of judges in the higher Judiciary, namely "Collegium". In this system a pannel of Chief Justice of India along with two seniormost Judges of the Supreme Court (in Third Judges Case this number was increased from two to four seniormost judges) recommends the appointment of a judge. But the recent episodes are revealing the incompetency and irregularity of the collegium system. The Law Commission of India, in its 214th Report has also shown deep concern on the working of the collegium system and recommended for reconsideration. This paper will take up all these issues in detail.

Keywords: Judiciary, Appointment of Judges, Collegium

JEL Classification: K10, K19