As per the Constitution, as held by the court in the Three Judges’ Cases – (1982, 1993, 1998), a judge is appointed to the Supreme Court by the President of India on the recommendation of the collegium — a closed group of the Chief Justice of India, the four most senior judges of the court and the senior-most judge hailing from the high court of a prospective appointee.
‘Consultation’:
- In 1977, in Sankalchand Sheth’s case, when interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive
- And in 1981, in the First Judges Case, the court once again endorsed this interpretation, partly
- But twelve years later, in the Second Judges Case, the court overruled its earlier decisions. It now held that “consultation” really meant “concurrence”. And that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates
- In 1998, in the Third Judges Case, the court clarified its position further. The collegium, it said, will comprise, in the case of appointments to the SC, the CJI and his four senior-most colleagues. And, in the case of appointments to the high courts, the CJI and his two senior-most colleagues
Collegium is a part of the basic structure of the constitution
- When the Constitution was altered, through the 99th constitutional amendment and when the collegium was sought to be replaced by the National Judicial Appointments Commission, the court swiftly struck it down
- It ruled, in what we might now call the Fourth Judges Case (2015), that the primacy of the collegium was a part of the Constitution’s basic structure and this power could not, therefore, be removed even through a constitutional amendment