Appointing judges I: seniority, supersessions and the three Judges cases

Detail

1. What the Constitution says

• Appointment of judges means the legal process for choosing judges of the Supreme Court and High Courts. NCERT (Class 11) says it "has never been free from political controversy".
• Art. 124(2): Supreme Court judges
• The President appoints them.
• Before appointing, the President consults those Supreme Court and High Court judges whom he thinks necessary.

• For a puisne judge (any Supreme Court judge other than the Chief Justice), consulting the Chief Justice of India (CJI) is compulsory.

• Art. 217(1): High Court judges. The President consults three authorities:

• the CJI
• the Governor of the state

• the Chief Justice of that High Court (for any judge other than the Chief Justice).

• High Court judges are appointed under Art. 217 and Art. 224 (additional and acting judges) [2].

• The legislature has no role. Parliament and state legislatures do not vote on or confirm judges. The US Senate does confirm judges, so India differs here.
• Why the choice of judges matters: a judge's outlook shapes how laws fare in court. Some judges take an assertive line and check the government. Others form a committed judiciary, meaning judges who share the ruling party's views (explained in Section 3).

2. Transfer of High Court judges: Art. 222

• Transfer of High Court judges means moving a judge from one High Court to another.
• Under Art. 222, the President transfers a judge after consulting the CJI.

• In practice, the CJI acts with the Supreme Court collegium.

• Union of India v. Sankalchand Sheth (1977):

• The judge does not have to agree to the transfer.
• The consultation with the CJI must be real and effective. The government must share all the facts, and the CJI must give a considered view. A mere formality is not enough.

• A transfer must serve the public interest. It must not be used to punish a judge.

• Ongoing debate: critics say some transfers are punitive, meaning used to punish judges for inconvenient rulings. Because the judge cannot refuse, transfers can be used as pressure.

3. The seniority convention and its breach

• Seniority convention: the custom that the senior-most Supreme Court judge (the one appointed earliest) becomes CJI. Art. 124 does not say this. It is only a custom.
• Supersession of judges means passing over senior judges so that a junior judge becomes CJI. This breaks the seniority convention.

Date	Appointed CJI	Judges superseded	Background
April 1973	A.N. Ray	J.M. Shelat, K.S. Hegde, A.N. Grover	Appointed a day after Kesavananda Bharati (1973), where these three judges had ruled against the government
January 1977	M.H. Beg	H.R. Khanna	Khanna was the lone dissenter in ADM Jabalpur (1976). He held that the right to life could not be suspended even during the Emergency. (NCERT: "1975"; correct date: January 1977)

• What followed: the superseded judges resigned in protest. Both times, the judges who were passed over had ruled against the government.
• Committed judiciary:
• Idea: a 1970s view that judges should share the ruling party's social philosophy (for example, its views on land reform and property rights).
• Defence: ministers defended it in Parliament in 1973, after the Ray supersession.

• Criticism: critics saw it as a direct threat to judicial independence (judges' freedom to decide cases without pressure from the government).

• After 1977: the senior-most judge has been appointed CJI every time. Under the memorandum of procedure, the outgoing CJI recommends his successor.

• Memorandum of procedure (MoP): the government's written rulebook for appointing judges. It was prepared in 1998, based on the Second Judges case judgment of 6 October 1993 and the Third Judges case opinion of 28 October 1998 [2].

4. The three Judges cases

NCERT (Class 11) describes the arc without naming the cases. The judiciary's role moved from consultative (asked for advice) to binding (its advice must be followed) to collegial (decided by a group of senior judges).

Case	Year / Bench	Main holding	Who had the upper hand
First Judges case: S.P. Gupta v. Union of India	December 1981	'Consultation' does not mean 'concurrence' (agreement). The President can disagree with the CJI.	Executive
Second Judges case: Supreme Court Advocates-on-Record Association (SCAORA) v. Union of India	6 October 1993 [2]; 9 judges	Overruled S.P. Gupta. The CJI's opinion has primacy (it carries the most weight), but the CJI must form it with the two senior-most judges. Seniority decides who becomes CJI.	Judiciary: the collegium is born
Third Judges case: In re Special Reference No. 1 of 1998	28 October 1998 [2]; advisory opinion under Art. 143	Widened the collegium and laid down written, consultative rules	Collegium

• S.P. Gupta (1981)
• It gave the government primacy over both appointments and transfers.

• It is also the landmark case on locus standi (the right to bring a case to court). It allowed public-spirited persons to file public interest litigation (PIL), a case filed for the public good (see §10).

• Art. 143 (advisory jurisdiction): the President may ask the Supreme Court for its opinion on a question of law. The 1998 reference was made under this power.

• Rules from the Third Judges case:
• Collegium for Supreme Court appointments: the CJI and the 4 senior-most judges. The PRS reading is that the 1993 ruling was "slightly modified" from two judges to four [3].
• Collegium for High Court appointments and transfers: the CJI and the 2 senior-most judges.
• Members must give their views in writing.
• If two collegium members object to a name, it should not go forward.

• The government may return a name once for reconsideration. If the collegium reiterates it (sends the same name again), the government is bound to appoint.

• Collegium system means judges choose judges. A group of senior judges recommends names, and the government mostly acts on those recommendations.

5. The collegium in practice

A. Supreme Court judges

• The CJI starts the proposal after consulting the 4 senior-most puisne judges.
• The CJI then sends the recommendation to the Union Law Minister [2].

B. High Court judges (steps in order)

1. High Court collegium starts the process. It is made up of the High Court's Chief Justice and the two senior-most puisne judges. It must recommend names at least 6 months before a vacancy arises, but this time limit is "rarely observed" [2].
2. State government and Governor give their views on the names [2].
3. Intelligence Bureau (IB) inputs: the Centre adds IB reports and any other reports it holds on the candidates [2].
4. Supreme Court collegium: it receives the views of the High Court collegium, the state government and the Centre [2]. It also consults Supreme Court judges who know that High Court well.
5. Union Law Ministry → Prime Minister → President: the file moves up for the appointment to be notified.
6. Only names recommended by the Supreme Court collegium are appointed [2]. In the five years before July 2026, 608 High Court judges were appointed [2].

C. Other collegium decisions

• High Court Chief Justices are chosen by the Supreme Court collegium. Under the policy, they usually come from outside the state.
• Transfers of High Court judges are also decided by the collegium. The judge's consent is not needed (Sankalchand Sheth, 1977).

6. Toward the NJAC (bridge to Part II)

• Reform proposals: several bodies recommended a judicial appointments commission in place of the collegium [3]:
• Law Commission (1987): the CJI, 3 senior Supreme Court judges, the Law Minister, the Attorney General and a law academic.
• NCRWC (2002): the CJI, 2 senior judges, the Law Minister and 1 eminent person.

• National Advisory Council (2005) and 2nd ARC (2007): both proposed a commission chaired by the Vice-President.

• Constitution (121st Amendment) Bill, 2014 and NJAC Bill, 2014

• Lok Sabha passed them on 13 August 2014 and Rajya Sabha on 14 August 2014 [4].

• The President gave assent in December 2014 [3].

• NJAC (National Judicial Appointments Commission):

• Members: the CJI as chair, the 2 senior-most judges, the Law Minister and 2 eminent persons. A panel of the PM, the CJI and the Leader of Opposition would pick the eminent persons [3].

• Veto: any two members could block a name [4].

• Struck down in October 2015: a five-judge bench struck down both laws. It held that executive involvement in appointments harms judicial independence and breaks the separation of powers (each organ of government keeping to its own role) [3].

• Result: the collegium system came back into force.

Prelims Hooks

• Art. 124(2): consulting the CJI is compulsory for appointing Supreme Court judges other than the CJI. Art. 217(1): for High Court judges, the President consults the CJI, the Governor and the High Court Chief Justice. Art. 222: transfer of High Court judges.
• Trap: the word "collegium" does not appear anywhere in the Constitution. It comes from the Judges cases and the 1998 MoP.
• Sankalchand Sheth (1977): a transfer needs no consent from the judge, but the consultation must be real and effective.
• S.P. Gupta (1981): consultation ≠ concurrence, so the executive had primacy. The same case is the landmark on locus standi and PIL.
• SCAORA (6 October 1993, nine judges): the CJI's opinion, formed with 2 senior judges, has primacy. This is the origin of the collegium.
• Third Judges case (28 October 1998): an advisory opinion under Art. 143. The collegium is the CJI + 4 for the Supreme Court and the CJI + 2 for High Courts.
• Supersessions: A.N. Ray (April 1973) over Shelat, Hegde and Grover. M.H. Beg (January 1977) over H.R. Khanna, the dissenter in ADM Jabalpur.
• MoP: a High Court collegium must recommend names at least 6 months before a vacancy [2].
• NJAC: passed in August 2014 and struck down by a five-judge bench in October 2015. Any 2 of its members could block a name [3][4].

Mains Points

• Independence vs accountability
• For the collegium: the 1973 and 1977 supersessions and the "committed judiciary" idea show what can happen when the executive has primacy.

• Against the collegium: it is opaque. It publishes few reasons and has no fixed criteria. This led reform bodies to propose commissions in 1987, 2002, 2005 and 2007 [3].

• Delays and friction

• Under the MoP, the 6-month advance timeline is rarely met [2].
• The government also sits on files, so the "return once, then bound" rule is weakened in practice.

• Reform idea: a revised MoP with fixed time limits for each step.

• Transfers

• The judge's consent is not needed (Sankalchand Sheth), so a transfer can quietly punish a judge.

• Safeguards: recorded reasons and a real public-interest test.

• Debate after the NJAC ruling (2015)

• The Court protected primacy for judges [3]. But the arguments for openness, written criteria and a wider pool of candidates remain.
• Middle path: a reformed collegium, not a return to executive control.