Abstract

The current article is limited to the analysis of the appointment of Judges of the Supreme Court and high courts, with a legal overview of NJAC. Appointment of SC Judges is done by the President, and the Chief Justice is appointed by the President on the consultation of such Judges of the Supreme Court and the High Court, if necessary. It is governed by Article 124(2) of the Constitution. What do we mean by the word consultation? The word has been widely debated on major issues when deciding on the constitutionality of the appointment process of Judges. Whether it is mandatory or not is a real question. And, whether the President of India has the absolute discretion in the appointment. Article 217 of the Constitution of India mentions that the high court Judges are appointed by the president in consultation with the chief justice of India and the government of the state. The supremacy of the executive was first discussed in the Judges Transfer case 1. S. P Gupta’s case, also known as the Judges' transfer case 1, mentioned that Article 124(2) has the same meaning under Articles 212 and 222 of the Constitution of India. Judicial supremacy was discussed in S.C.R.A. v Union of India. The memorandum of procedure for appointment of permanent Judges in the High Court is - The Chief Justice of the High Court consults the senior-most Judges and refers the names to the Chief Minister. Then, the Chief Minister forwards the names to the governor. Then, the governor sends the names to the Union Minister of Law, Justice and Company Affairs. Then, the union minister forwards the names to the collegium of the Supreme Court. Then the collegium, consisting of the CJI and two senior-most Judges of the Supreme Court, sends the recommendations back to the Union Minister. Then, the union minister places the names of the Judges before the prime minister. Then the prime minister submits the proposal to the resident. Then, finally, the President’s approval of the Department of Justice secretary to the government will send the approval to the chief minister and the Chief Justice. She/he will then issue a notification in the Gazette of India.

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