Lok Sabha Question No. 2940 (UNSTARRED), answered on 2019-07-10
Subject: Posts in Higher Judiciary
Ministry: LAW AND JUSTICE
Asked by: Rajendra Agrawal

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA UNSTARRED QUESTION NO. 2940

## TO BE ANSWERED ON WEDNESDAY, THE 10.07.2019

## Posts in Higher Judiciary

†2940. SHRI RAJENDRA AGRAWAL:

Will the Minister of LAW AND JUSTICE be pleased to state:

- (a) whether the members of certain few families reportedly are dominating in the Supreme Court;
- (b)   if so, the details thereof along with the reasons therefor;
- (c) whether at present there is no need to conduct any examination for around two third posts in the higher judiciary as these posts are filled through  the  Bar  Council  which  promotes  the  practice  of  selecting members from certain few families for posts in the higher judiciary;
- (d)  if  so,  the  details  thereof  and  the  corrective  steps  taken  by  the Government in this regard;
- (e) whether  the  Government  proposes  to  introduce  All  India  Judicial Service on the lines of Central Services; and
- (f)   if so, the details thereof?

## ANSWER

## MINISTER OF LAW AND JUSTICE, COMMUNICATIONS AND ELECTRONICS & INFORMATION TECHNOLOGY

## (SHRI RAVI SHANKAR PRASAD)

(a) to (d):  The Judges of the Supreme Court are appointed by the President under Article 124 (2) of the Constitution while Judges of the High Courts are appointed  by  the President under  Article 217  (1)  and  224  (1) of the Constitution. Judges of the Supreme Court and High Courts are appointed as per  the  procedure  laid  down  in  the  Memorandum  of  Procedure  prepared  in

1998 pursuant to the Supreme Court Judgment of October, 6 th , 1993 (Second Judges  case)  read  with  the  advisory  opinion  of  October,  28 th ,  1998  (Third Judges case).

As per the Memorandum of Procedure (MoP), initiation of proposal for appointment of Judges in the Supreme Court vests with the Chief Justice of India, while initiation of proposal for appointment of Judges of the High Courts vests with the Chief Justice of the concerned High Court. The Government on its own cannot recommend any name for appointment as a Judge of Supreme Court and High Courts. However, if the Chief Minister desires to recommend the  name  of  any  person  for  appointment  as  a  Judge  of  High  Court,  he/she should forward the same to the Chief Justice for his consideration. The names of  the  recomendees  are  considered  by  the  State  Constitutional  Authorities, Supreme Court Collegium and Constitutional Authorities at the Centre before their  appointment as Judges of High Courts. Sometimes some of the names recommended by the High Court Collegium for appointment as Judges of High Courts are relatives of the sitting or retired Judges of Supreme Court and High Courts.

In order to make the Collegium system of appointments of Judges of the Supreme  Court  and  High  Courts  more  broad-based  and  transparent,  the Government  brought  into  force  the  Constitution  (Ninety-Ninth  Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 w.e.f. 13.04.2015. However, both the Acts were challenged in the Supreme Court. The Supreme Court vide Judgment dated 16.10.2015 declared both the Acts as  unconstitutional  and  void.  The  Collegium  system  as  existing  prior  to  the enforcement  of  the  Constitution  (Ninety-Ninth  Amendment)  Act,  2014  was declared to be operative. Subsequently, the Supreme Court vide order dated 16.12.2015 directed the Government to finalize the existing MoP  by supplementing it in consultation with the Supreme Court Collegium taking into consideration eligibility criteria, transparency, establishment of secretariat and mechanism to deal with complaints.

As the process of finalizing the supplementation of the existing MoP was likely  to  take  some  time,  at  the  initiative  of  the  Government,  the  matter  of continuing the appointment process was taken up with the Supreme Court and appointments of Judges of Supreme Courts and High Courts are being made as per the existing MoP.

The  qualifications  for  appointment  of  Judges  in  the  High  Courts  are provided in Article 217 (2) of the Constitution. There is no examination either for  Advocates  or  Judicial  Officers  for  appointment  as  Judges  in  the  High Courts. The appointment of Judges in the High Courts is divided in the ratio of 2:1  between  Bar  and  Judicial  Service.  The  Advocates  are  considered  for appointment as Judges of High Courts based on their professional competence, net average professional income for last 5 years, age, reported judgments in which he/she has argued independently during last 5 years and other relevant factors.

(e) & (f): A comprehensive proposal was formulated for constitution of All India Judicial  Service  (AIJS),  which  was  recommended  by  the  Committee  of Secretaries in November, 2012. The proposal along with views received from High Courts and States was included in the agenda for the  Joint Conference of Chief Ministers and Chief Justices of High Courts held on 05 th April, 2015. Keeping in view the divergence of opinion among the States and High Courts on  constitution  of  All  India  Judicial  Service  (AIJS),  the  Government  has undertaken the consultative process to arrive at a common ground.

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