After discussion and recommendations for the appointment of the 50th Chief Justice of India, CJI U U Lalit has written to the government about recommending his successor in the post, as per the convention of seniority. Justice D Y Chandrachud will take over as the next CJI. He will have a tenure of 2 years as a CJI. The collegium he will head will potentially make as many as 18 recommendations for the appointment of judges to the Supreme Court. Most importantly, the collegium which he will head will be 5+1. It’s going to be an unusual collegium: because instead of five members, it will have six members, and justice Khanna will be the 6th member.
The Collegium System
The collegium system is a structure, by which the process of appointment and transfers of judges takes place. Through the collegium system, judges of the Supreme Court and High Courts are appointed and transferred. It is the five-member body, headed by the CJI and comprises the 4 other senior judges at that time.
Collegium system in the Constitution.
The collegium system doesn’t find its place in the constitution. However, the constitution has prescribed articles 124 and article 217.
Article 124- deals with the appointment of Supreme Court judges. This article says the appointment should be made by the President after consultation with judges of the High Courts and the Supreme Court as the President may deem necessary. And it mentioned that CJI is to be consulted in all appointments except his or her own.
Article 217- deals with the appointment of judges. This article says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. It also says the Chief Justice of the High Court concerned too should be consulted.
Three Judges Case
The collegium system of appointing judges evolved through three significant verdicts of the Supreme Court, known as the first, the second and the third judge’s cases. The collegium came into being through the interpretations of the relevant provisions of the Constitution that the Supreme Court made in these judge’s Cases.
- First judge case – it was held in 1981 where in S P Gupta Vs Union of India a seven-judge Bench gave the Executive the last word on the appointment of judges. While Interpreting Articles 124(2) and 217(1) of the Constitution, the SC ruled that the government can disagree with the CJI for “cogent reasons”. This judgement brought a paradigm shift in favour of the executive, which gave primacy to the executive over the judiciary.
- Second Judges Case: it was held in 1993 where a nine-judge Bench evaluated the correctness of the 1981 verdict, and overturned it. During this case, the ruling held that the word “consultation” actually meant “concurrence” of the CJI. It also mentioned that the CJI would make decisions along with two senior-most judges of the court, who would form the collegium. And the executive can not have an equal say in it.
- Third Judges Case: the 3rd case took place in 1998, where a reference was made by then President K R Narayanan seeking the SC’s opinion in its advisory jurisdiction, where the question was about the primacy of appointments. The SC reiterated its decision of 1993, but brought more senior judges to the collegium, increasing its strength from three to five judges.
Chandrachud as a Successor
CJI names Chandrachud as a successor. During his tenure in the Supreme Court, he penned some very important judgments. From recognizing privacy as a fundamental right to decriminalising section 377 of IPC he has contributed significantly. And last month’s significant ruling on reproductive rights, the Supreme Court headed by him extended the rights to safe and legal abortion up to 24 weeks of pregnancy of unmarried and single women.
Chandrachud’s 5+1 Collegium?
Generally, the collegium system consists of 5 members however, this time there will be an unusual collegium: instead of five members, it will have six members and Justice Khanna going to be the sixth member of the collegium from November 9, 2022. However, this incident has taken place earlier also. In 2007 the then CJI K G Balakrishnan took the top office because the collegium he headed did not have a potential CJI candidate and Justice S H Kapadia, who was next in line to be CJI, was invited to the collegium as the sixth member.
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