Article 124(2) :
Every Judge of the Supreme Court shall be appointed by the President ... after consultation with such of the Judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose... provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
"The question of primacy of the role of the Chief Justice of India in
the context of appointment of judges in the Supreme Court and the High Courts
must be considered... to achieve the constitutional purpose of selecting the
best available for composition of the Supreme Court and the High Courts, so
essential to ensure the independence of judiciary, and thereby, to preserve
democracy... The debate on primacy is intended to determine who amongst the
constitutional functionaries involved in the integrated process of
appointment is best equipped to discharge the greater burden attached to the
role of primacy, of making the proper choice... It is obvious, that the
provision for consultation with the Chief Justice of India and, in the case of
the High Courts, with the Chief Justice of the High Court, was introduced
because of the realisation that the Chief Justice is best equipped to know
and assess the worth of the candidate, and his suitability for appointment as a
superior judge, and it was also necessary to eliminate political influence even
at the stage of the initial appointment of a judge... The primacy must,
therefore, lie in the final opinion of the Chief Justice of the India unless for
very good reasons known to the executive and disclosed to the Chief Justice of
India, that the appointment is not suitable."
Pursuant to public interest petitions filed by the Supreme Court Advocates-On-Recorded Association seeking relief of filling up of vacancies, a bench of nine judges over-ruled the judgment in S. P. Gupta v. Union of India, (1981) which had upheld the primacy of the executive in the appointment of judges in the superior Courts. Later, in Special Reference 1 of 1999, the Court has, with a view to making consultation more informed, transparent and meaningful, held that the Chief Justice of India must consult four senior most judges in the selection process.
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