Why in News?

• The Union Government has notified the appointment of two High Court Chief Justices as Judges of the Apex Court.
• The elevation of the High Court judges was recommended by the Supreme Court Collegium on 5th July 2023.
• The two names recommended for elevation are:
  • Justice Ujjal Bhuyan, currently serving as the Chief Justice of the Telangana High Court and
  • Justice SV Bhatti, Chief Justice of the Kerala High Court.

Background

• The Supreme Court, which has a sanctioned strength of 34 judges, is short of three judges.
• With justice Krishna Murari set to retire in July 2023, the vacancy will rise to four.
• The collegium responsible for appointments and transfers at present comprises of sitting Chief Justice of India (CJI) and three other members namely Justices Sanjiv Khanna, BR Gavai and Surya Kant.
• Andhra Pradesh High Court Chief Justice Prashant Kumar Mishra and senior advocate KV Viswanathan were appointed as Supreme Court judges prior to the current appointment.

Collegium System

• Constitution of India, 1950 under Articles 124(2) and 217 deal with the appointment of judges to the Supreme Court and High Courts, respectively.
• Collegium System is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
• The judges of the Supreme Court are appointed by the President. The Chief Justice is appointed by the President after consultation with such judges of Supreme Court and the other judges are appointed by President after the consultation with the Chief Justice of India and such other judges of the Supreme Court.
  • The consultation with the Chief Justice is obligatory in the case of appointment of a judge other than Chief Justice.

Case Laws

The cases from which the collegium System was evolved are as follows:

• First Judges Case - S.P. Gupta v. Union of India (1981)
• The ruling by the Supreme Court held that the word ‘consultation’ in Article 124 does not mean concurrence. Hence, the President was not bound to make a decision based on the consultation of the Supreme Court (SC).
• Second Judges Case - Supreme Court Advocates-on-Record Association and another v. Union of India (1993)
• SC introduced the Collegium system, holding that ‘consultation’ really meant ‘concurrence’.
• It was further added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case - In re Special Reference 1 of 1998
• SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
• The Supreme Court also laid down strict guidelines for the appointment of Judges of the Supreme Court and High Courts. These guidelines are currently known as the Collegium System.
• Fourth Judges Case - Supreme Court Advocates-on-Record-Association and another V. Union of India (2015)
• The Constitution’s 99th Amendment created the National Judicial Appointment Commission Act, 2014 by which Article 124A was added to the Constitution of India, 1950.
• The functions and Parliament’s power to make laws regarding NJAC were outlined in Articles 124B and 124C of the Constitution of India.
• In the present case, the Supreme Court held that Article 124A does not provide adequate representation to the judicial component of the National Judicial Appointment Commission hence it was held violative of the independence of the judiciary which forms the essential structure of the Constitution. The court invalidated the National Judicial Appointment Commission and restored the earlier system.

Related Constitutional Provisions

Article 124(2) - Establishment and constitution of Supreme Court -

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal *(on the recommendation of the National Judicial Appointments Commission referred to in article 124A) and shall hold office until he attains the age of sixty-five years:

Provided that —

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4).

Article 217 - Appointment and conditions of the office of a Judge of a High Court.—

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal *(on the recommendation of the National Judicial Appointments Commission referred to in article 124A), and the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that— (a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and— (a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

(c)Explanation —For the purposes of this clause—

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

*Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 2, for "after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in its judgment dated 16-10-2015.

About Justice Ujjal Bhuyan

• Justice Ujjal Bhuyan’s parent High Court is the Gauhati High Court.
• He was appointed as Additional Advocate General, Assam on 21st July 2011.
• He was elevated as an Additional Judge of the Gauhati High Court on 17th October 2011 and was made a permanent judge on 20th March 2013.
• He was transferred as a Judge of Bombay High Court on 3rd October 2019.
• Thereafter, he was transferred as a Judge of Telangana High Court on 22nd October 2021.
• He was elevated as Chief Justice of Telangana High Court on 28th June 2022.
• Justice Ujjal Bhuyan has acquired significant experience in diverse fields of law. He has acquired specialization and domain knowledge in the law of taxation.

About Justice SV Bhatti

• On 12th April 2013 he was elevated as Additional Judge of High Court of Andhra Pradesh and served as judge of High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh until bifurcation.
• He was appointed as Acting Chief Justice of Kerala High Court on 24th April 2023.
• He was appointed as Chief Justice of Kerala High Court in June 2023.