Constitutional Appointment of the Higher Judiciary

Higher judiciary judges are formally appointed by the President of India through a warrant under the President's hand and seal. The constitutional consultation process under Articles 124 and 217 now operates through the judge-made collegium system, which gives the judiciary primacy in recommending appointments.

Constitutional procedure

The Constitution identifies the appointing authority and the constitutional functionaries who must be consulted.

• Under Article 124(2), Supreme Court judges are appointed by the President after consultation with such Supreme Court and High Court judges as the President considers necessary. For appointing a judge other than the Chief Justice of India, consultation with the Chief Justice of India is mandatory.
• Under Article 217(1), a High Court judge is appointed by the President after consultation with the Chief Justice of India and the Governor of the state. For a judge other than the High Court Chief Justice, the Chief Justice of that High Court must also be consulted.
• The senior-most Supreme Court judge considered fit is conventionally appointed as the Chief Justice of India.

Collegium system

The Supreme Court interpreted consultation as requiring judicial primacy through the Second Judges Case, 1993, and the Third Judges Case, 1998.

• For Supreme Court appointments, the collegium consists of the Chief Justice of India and four senior-most Supreme Court judges.
• For High Court appointments, proposals originate in the High Court collegium and are considered by the Supreme Court collegium comprising the Chief Justice of India and two senior-most Supreme Court judges.
• The Union government may return a recommendation for reconsideration, but a reiterated collegium recommendation is binding.
• The Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission Act sought to replace the collegium, but the Supreme Court invalidated them in 2015.

Eligibility for appointment

• Under Article 124(3), a Supreme Court judge must be an Indian citizen and satisfy the prescribed experience as a High Court judge or advocate, or be a distinguished jurist in the President's opinion.
• Under Article 217(2), a High Court judge must be an Indian citizen with at least ten years of judicial office or High Court advocacy.