Appointment and Reservation of Judges

The issue of the appointment procedure of judges in the higher judiciary has been analyzed by the Law Commission in its 214th Report (2008) and the Commission has observed that the delicate balance of power between the executive and judiciary has been upset by the Judge’s case in 1993 and advisory opinion in 1998. Giving this information in written reply to a question in the Lok Sabha, Shri Salman Khurshid, Minister of Law & Justice, informed the House that the Commission had suggested two alternatives for changing the procedure: 

(i) An entire reconsideration of I, II & III judges cases – S.P. Gupta Vs UOI reported in AIR 1982 Supreme Court 149, Supreme Court Advocate on Record Association Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998(7) SCC 739, in order to bring about clarity, consistency and transparency, in the process of appointment of Supreme Court and High Court Judges. 

(ii) A law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments. 

Shri Khurshid further informed the House that in order to formulate a viable proposition to address the issues concerning appointment of Judges of the Supreme Court and High Courts, various options are being examined. However, no specific proposal has been finalized. 

Lok Sabha was also informed that the Constitution of India does not provide for any reservation for women/ SCs/ STs/ OBCs/ minority communities in the higher judiciary. There is no proposal to amend this constitutional provision, Shri Khurshid informed the House.