Supreme Court to consider Primacy to the Judiciary in Appointments of Judges

The Supreme Court is to consider 10 questions on the issue of review of its 1993 and 1998 judgments, which gave primacy to the judiciary in appointments of judges. A Bench of Justices Deepak Verma and B.S. Chauhan on Monday took note of the questions raised in the Suraz India Trust's writ petition, as framed by amicus curiae A.K. Ganguly, and referred the matter to Chief Justice S.H. Kapadia for appropriate directions.

The questions are:

whether the two verdicts really amount to amending Article 124(2) of the Constitution;

whether there is any ‘collegium' system for appointing Supreme Court or High Court judges in the Constitution;

whether the Constitution can be amended by a judicial verdict or only by Parliament in accordance with Article 368;

whether the constitutional scheme is that the Supreme Court and High Court judges can be appointed by mutual discussions and consensus between the judiciary and the executive; or whether the judiciary alone can appoint judges;

whether the word ‘consultation' in Article 224 means ‘concurrence';

whether by judicial interpretation words in the Constitution can be made redundant, as it appears to have been done in the 1993 and 1998 decisions which have made consultation with High Court judges redundant while appointing a Supreme Court judge despite the fact that it is permissible on the clear language of Article 124(2);

whether the clear language of Article 124(2) can be altered by judicial verdicts and, instead of allowing the President to consult such judges of the Supreme Court as he deems necessary (including even junior judges), only the Chief Justice of India and four seniormost judges of the Supreme Court can be consulted while appointing a Supreme Court judge; whether there is any convention that the President is bound by the advice of the CJI, and whether such convention (assuming there was one) can prevail over the clear language of Article 124(2);

whether the CJI's opinion has any primacy in the aforesaid appointments; and whether the two decisions should be overruled by a larger Bench.