Constitutional Appointment of the Higher Judiciary

Judges of the Supreme Court and High Courts are formally appointed by the President of India through a warrant under the President's hand and seal. Constitutional consultation under Articles 124 and 217 now operates through the judge-made collegium system, which gives the judiciary primacy in recommendations.

Constitutional appointment procedure

• Under Article 124(2), the President appoints Supreme Court judges after consulting such Supreme Court and High Court judges as considered necessary. Consultation with the Chief Justice of India is mandatory when appointing any Supreme Court judge other than the Chief Justice.
• Under Article 217(1), the President appoints a High Court judge after consulting the Chief Justice of India and the Governor of the state. The Chief Justice of that High Court must also be consulted when appointing any judge other than its Chief Justice.
• By convention, the senior-most Supreme Court judge considered fit is appointed as the Chief Justice of India.

Collegium system and judicial primacy

The Supreme Court established judicial primacy through the Second Judges Case, 1993, and clarified the collegium's composition in the Third Judges Case, 1998.

• For Supreme Court appointments, the collegium consists of the Chief Justice of India and the four senior-most Supreme Court judges.
• High Court proposals originate in the High Court collegium and are considered by a Supreme Court collegium comprising the Chief Justice of India and the 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.

Qualifications for appointment

• Under Article 217(2), a High Court judge must be a citizen of India and must have held a judicial office in the territory of India for at least ten years, or have been an advocate of a High Court, or of two or more such courts in succession, for at least ten years.
• Under Article 124(3), a Supreme Court judge must be an Indian citizen and have served for at least five years as a High Court judge, practised for at least ten years as a High Court advocate, or be a distinguished jurist in the President's opinion.