Under Articles 124(2) and 217 of the Constitution, the Judges of the Supreme Court and High Courts are appointed by the President.
- After consultation with certain judges of the Supreme Court and high courts as he considers necessary, the chief justice is appointed by the president. After consultation with the chief justice and other judges of the Supreme Court and the high court as he deems necessary, the other judges are appointed by the president. In the case of selection, consultation with the chief justice is compulsory.
- In a collection of decisions called 'Judges Cases,' the collegium system has its genesis. The collegium came into being in the Judges Cases by the Supreme Court through interpretations of applicable constitutional provisions.
o In the First Judges case (1982), the Court held that consultation does not imply agreement and that it merely implies an exchange of views.
o But the Court reversed its previous judgement in the Second Judges case (1993) and changed the definition of the word consultation to concurrence. It then ruled that the advice given by the Chief Justice of India is binding on the President in the Supreme Court judges appointment. However, after consulting two of his seniormost colleagues, the Chief Justice will give his advice on the matter.
o Similarly, in the Third Judges case (1998), the Court held that the consultation process to be followed by the Chief Justice of India requires 'consultation of plurality judges’. The consultation process is not the sole view of the Chief Justice of India. He should consult a college of four Supreme Court senior judges and even if two judges give an adverse opinion, the recommendation will not be sent to the government.
- The mechanism for the selection and transfer of judges has evolved through the Supreme Court's decisions, and not through the Act of Parliament or the Constitution.
- The Collegium of the Supreme Court is headed by the Chief Justice of India and is composed of four other senior judges.
- The college of the High Court is headed by its Chief Justice and four other senior judges of that court.
- Only after approval by the CJI and the Supreme Court collegium, the names recommended for appointment by the High Court collegium reach the government. Judges of the higher judiciary are named only through the framework of the collegium, and the government only has a role after the collegium has agreed on names.
- The role of the government is limited to obtaining an inquiry from the Intelligence Bureau (IB) if a lawyer is to be appointed to the High Court or the Supreme Court as a judge. It may also raise objections and request clarification about the choices of the collegium, but if the collegium reiterates the same names, the government is obliged to nominate them as judges under Constitution Bench judgments.
WHY DO THE JUDGES CONSIDER POST RETIREMENT JOBS?
- Legal knowledge: After retirement, the valuable experience and experiences that judges obtain during their time of service should not be lost.
- No bar: The Constitution does not prohibit them from taking post-retirement positions.
- Statutes set down conditions: these offices are usually statutory or quasi-judicial bodies, whose rules require, more often than not, that they be filled by retired judges only.
WHY SHOULDN'T THE JUDGES AGREE?
- Separation of powers and independence of the judiciary: justice should not only be done it should be seen to be done. This bridges the constitutional gap that the executive and judiciary ought to provide, creating the impression of prejudice, by embracing and providing post-retirement work. When vacancies are held within a short span of retirement or agreed before retirement, this hampers judicial independence.
- Conflict of interest- Vacancies in tribunals and legislative bodies create a conflict because, at the same time, the government itself is a litigation and appointment authority. The First Law Commission, headed by M C Setalvad, proposed that, after retirement, the judges of the higher courts should not allow any government function.
- Politicization of the judiciary: the assumption of post-retirement positions leaves newly retired judges vulnerable to political criticism from the opposition, which uses it to appeal to the Court, to the judicial system, and to the decisions and orders handed down while in office by those judges.
What can be done to strike a balance?
- Cooling off period: Many have proposed that a minimum cooling-off period of 2 years after retirement should occur.
- Raise the retirement age: unlike in many other nations, a higher judiciary judge in India retires at a relatively young age and is capable of working for many more years.
- Pass a law: create a committee consisting of a majority, if not entirely, of retired judges to nominate qualified retired judges to tribunals and judicial bodies.
- Amend current legislation: mandating the appointment of former judges to the courts and other quasi-judicial bodies, e.g. NHRC, etc. NGT.
- Envisioning a transparent process: Former Chief Justice R M Lodha proposed that the government should have the option of either becoming a pensioner or continuing to earn current salaries until a judge retires. Government workers are out if they opt for retirement, but if they opt for full pay, their name should be placed on a panel. These individuals should be considered when a vacancy occurs and the procedure is devoid of charges of appeasement, favouritism, etc.