Supreme Court won't revisit collegium system

CJI questions Trust’s locus standi to file petition

Updated - December 04, 2021 11:16 pm IST

Published - January 08, 2013 01:51 am IST - New Delhi:

The Supreme Court has rejected a plea for revisiting the 1993 nine-judge judgment giving its collegium primacy in appointment of judges of the Supreme Court and High Courts.

In April 2010, a two-judge Bench, after hearing Attorney-General G.E. Vahanvati and amicus curiae A.K. Ganguly, posted before a larger Bench the petition filed by Suraz India Trust seeking review of the collegium system.

Accordingly, the matter was on Monday posted before a three-judge Bench of Chief Justice of India Altamas Kabir and Justices J. Chelameswar and Vikaramjit Sen.

Under the collegium system, the executive has no say in judicial appointments. The recommendations of the collegium of judges are final and binding on the government.

The Suraz India Trust sought reconsideration of the proposition of law settled in the judgment in the case of the Supreme Court Advocates-on-record Association and others vs. the Union of India and others in 1993.

During the resumed hearing, Mr. Ganguly referred to the questions framed by the two-judge Bench for consideration by the larger Bench. However, the CJI, without going into merits, questioned the Trust’s locus standi to file the petition.

The questions framed were: will the two decisions of this court (1993 and 1998) really amount to amending Article 124 (2) of the Constitution? Is there any ‘collegium’ system in the Constitution for appointing Supreme Court or High Court judges? Can the Constitution be amended by a judicial verdict or only by Parliament in accordance with Article 368? In the constitutional scheme, can the judges be appointed by discussions and consensus between the judiciary and the executive, or can the judiciary alone make the appointments? Does the word ‘consultation’ in Article 224 mean ‘concurrence’?

By judicial interpretation, can words in the Constitution be made redundant, as appears to have been done in the aforesaid two decisions which have made consultation with High Court judges redundant while appointing a Supreme Court judge despite the fact that it is permissible on the clear language of Article 124(2)? Can the clear language of Article 124(2) be altered by judicial verdicts and instead of allowing the President to consult such judges of the Supreme Court (including even junior judges) as he deems necessary, can only the CJI and four seniormost judges be consulted while appointing a Supreme Court judge? Is there any convention that the President is bound by the advice of the CJI and (assuming there is one) can it prevail over the clear language of Article 124(2)? Has the CJI’s opinion any primacy in the appointments? Should the two decisions be overruled by a larger Bench?

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