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The Supreme Court today decided to admit a petition seeking the a review of the National Judicial Appointments Commission decision in 2015 having massive socio-legal ramifications for the judiciary. The petition is filed by the The National Lawyers’ Campaign for Judicial Reforms and Transparency which argues for a system of judical appointment that existed prior to the 9 judge Bench decision in 1993. The Supreme Court will have to transfer the case to a 11 judge Bench if it finds merit in the arguments as a 9 judge Bench cannot overule another 9 Judge Bench.
The appointment of judges has always been a point of dispute between the judiciary and the exceutive. The Constitution of India under Article 124 and Article 217 prescribes the procedure for the appointment of judges of Supreme Court and High Court respectively. The articles mandate that the judges would be appointed by the President in consultation with the Chief Justice and other judges of the Supreme Court and the High Courts as the President of India may deem necessary.
In the case of SP Gupta v Union of India also known as the 'first judges case', the Supreme Court in was faced with the issue of meaning of the word "consultation" in Article 124 and Artcile 217. The Supreme Court in the year 1982 held that the word "consultation" means that the President can only consult with the Chief Justice of India and the Chief Justices of respective High Courts regarding judicial appointments and that this consulation does not amount to concurrence, thus giving the final power to be with the President of India.
The Supreme Court Bar Association filed an review against this decision and later in what came to be known as the 'second judges case', the Supreme Court in 1993 reversed its earlier ruling . It now held the primacy of the opinion of the Chief Justice of India and the Chief Justices of respective High Courts regarding judicial appointments, giving more power to the judiciary over the President of India. This case gave rise to the Collegium system of Judiciary. The Collegium system of the Supreme Court consisted of the Chief Justice of India and 2 senior most judges of the Supreme Court.In the third judges case in 1993 , the Supreme Court expanded the ambit of the Collegium to include the Chief Justice of India and 4senior most judges of the Supreme Court.
The Constitution (Ninety-Ninth Amendment) Act, 2014 sought to replace the Collegium system with the National Judicial Appointments Commission (NJAC ) to bring the executive also. But the Supreme Court declared the amendment act as unconstitutional in 2015 with a majority 4-1 judgment holding it as against the basic structure of the Constitution as expunded by Keshavanda Bharati. Justice Chelameshwar however dissented in the case. This is referred to as the Fourth Judges case.
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