Judicial Review of Chief Justice of India’s Power to Appoint and Transfer
Judicial Review of Chief Justice of India’s Power to Appoint and Transfer Judges
Introduction
The power of the Chief Justice of India (CJI) in the appointment and transfer of judges of the higher judiciary has been a subject of debate and judicial scrutiny in India. This issue lies at the intersection of the independence of the judiciary, constitutional provisions, and checks and balances within Indian democracy. Judicial review of such powers seeks to ensure that constitutional morality is upheld while also preventing arbitrariness in the functioning of the higher judiciary.
Constitutional Framework
Article 124: Deals with the appointment of Supreme Court judges.
Article 217: Deals with the appointment of High Court judges.
Article 222: Allows the President to transfer a judge from one High Court to another, after consultation with the CJI.
Originally, the President had the power to appoint judges, in "consultation" with the CJI and others. However, judicial interpretations have shifted this power significantly.
Evolution Through Case Law
1. First Judges Case (S.P. Gupta v. Union of India, 1981)
Held that the term “consultation” did not mean “concurrence.”
Gave primacy to the Executive in judicial appointments.
Marked as the period of Executive primacy.
2. Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993)
Overruled the First Judges Case.
Established the Collegium System.
Gave primacy to the judiciary, especially the CJI, in appointments and transfers.
3. Third Judges Case (Re Presidential Reference, 1998)
Clarified the Collegium system.
The CJI must consult a plurality of judges (4 senior-most) before recommending appointments/transfers.
Made the process more collaborative but still judiciary-dominated.
4. Fourth Judges Case (2015 – NJAC Verdict)
Struck down the National Judicial Appointments Commission (NJAC) as unconstitutional.
Reaffirmed the independence of the judiciary.
Upheld the Collegium system, though it was criticized for being opaque and lacking accountability.
Scope of Judicial Review
Though the judiciary controls appointments and transfers through the collegium, judicial review remains applicable in certain circumstances:
Grounds for Judicial Review:
Violation of constitutional provisions
Arbitrariness or mala fide intent
Lack of effective consultation
Bias or conflict of interest
However, courts rarely interfere in collegium decisions unless there is clear evidence of procedural impropriety.
Recent Developments and Criticism
Transparency Issues: The collegium system has been criticized for being opaque and lacking reasons in decisions.
Internal Dissent: Judges themselves have voiced concern (e.g., Justice Chelameswar's dissent in collegium functioning).
Call for Reform: Law Commission, civil society, and political leaders have called for reforms in the appointments process to ensure transparency and accountability.
The Supreme Court has also published collegium resolutions online recently as a step toward greater transparency.
Conclusion
The Chief Justice of India, while being the pivotal figure in the appointments and transfers of judges, does not act unilaterally. The evolution of the law has placed constraints through the collegium system and through the possibility of judicial review in extreme cases. However, real checks and balances remain limited, and there is a strong ongoing debate about the need for reforms in the judicial appointments process to ensure both judicial independence and accountability.
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