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Editorial Notes

[Editorial Notes] Bigger and better: On number of Supreme Court judges

Given the complaint that the availability of judges is not increasing in proportion to the institution of cases, any move to increase the strength of the judiciary should be welcomed.
By IASToppers
August 08, 2019

Contents

  • Why it was in News?
  • Criticism
  • Suggestion
  • Conclusion
  • IT’s Input

Bigger and better: On number of Supreme Court judges

For IASToppers’ Editorial Simplified Archive, click here

Why it was in News?

The Union Cabinet recently approved increasing the number of judges in the top court from the present 31 to 34, including the Chief Justice of India.

SupremeCourtofIndia-IASToppers Bigger and better: On number of Supreme Court judges

Need:

  • Due to the scarcity of judges, the required number of Constitution Benches to decide important cases involving questions of law were not being formed.
  • The move also comes against the backdrop of rising cases in the supreme court which stand at nearly 60,000.

Background:

  • The Supreme Court (Number of Judges) Act, 1956 originally provided for a maximum of 10 judges (excluding the CJI). This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960 to 17 in 1977.

The-Supreme-Court-(Number-of-Judges)-Act,-1956-IASToppers

  • The working strength of the Supreme court was, however, restricted to 15 judges by the Cabinet (excluding the chief Justice of India) till the end of 1979. But the restriction was withdrawn at the request of the Chief Justice of India.
  • In 1986, the strength of the top court was increased to 25, excluding the CJI.
  • It was last amended in 2009 to increase the judges’ strength from 25 to 30 (excluding the CJI).

Criticism:

  • A mere increase in the court’s strength is not enough to address the huge pendency of cases.
  • One needs to check that if the judicial resources available are being used optimally or not before raising the number of judges.
  • One should, before raising number of judges, also check whether valuable time of court is being taken up by unimportant matters that do not impinge on larger questions involving interpretation of constitutional provisions.
  • Some believe that the supreme court should not necessarily deliberate every time on the correctness of every decision of a high court, that requires higher number of judges in supreme court.

Suggestion:

Restraint on oral arguments:

  • There should be a reasonable limitation on the duration of oral arguments and a disciplined adherence to a schedule of hearings in order to save the court’s time.

Separate constitutional courts

  • Some countries have separate constitutional courts, which limit themselves to deciding questions of constitutional importance. India could adopt the same model which cut down the time taken for disposal of cases.
  • The 229th Report of the Law Commission suggested a system under which there will be one Constitution Bench in Delhi and four ‘Cassation Benches’ for different regions of the country. These benches will be final appellate courts for routine litigation.
  • This arrangement can also increase access to justice to those living in remote areas of the country and who may otherwise have to come to Delhi spending more time and money.

Conclusion:

  • The order of government to increase the number of judges in supreme court is necessary step to handle the pendency of cases, however, at the same time, it is equally important for supreme court to focus on its role as interpreter of the Constitution.

IT’s Input:

The procedure of an appointment

  • The Chief Justice of India (CJI) and the other judges of the highest judiciary are appointed by the President of India under the Article 124 (2) of the Constitution.

Eligibility to become a Supreme Court judge

  • Should be an Indian citizen.
  • Should not exceed 65 years of age
  • Should serve as a judge of one high court or more (continuously), for at least five years or the person should be an advocate in the High court or the Supreme court for at least 10 years or a distinguished jurist.

Selection procedure of Chief Justice of India

  • The senior-most judge of the Supreme court is generally considered for holding the office of the Chief Justice of India.

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  • When the incumbent CJI is about to retire, the Ministry of Law, Justice and Company affairs use to seek the recommendation of the CJI to appoint the next CJI.
  • After receiving the recommendation of the CJI, the Ministry of Law, Justice and Company affairs forward the issue to the Prime Minister who will further move the proposal to the President of India for the final approval.

Selection procedure of other judges in SC

  • The selection of the other judges in the top court comes when there is any vacancy.
  • If a judge is about to retire or retires, then the CJI initiates the proposal and sends the recommendation to the Ministry of Law, Justice and Company affairs to fill up the seat.
  • The recommendation of the CJI for the appointment of a Judge of the Apex Court should be formed in consultation with a collegium of the four senior most Judges of the Supreme Court.
  • After acknowledging the views of the four judges, the CJI sends the proposal for appointment to the Ministry of Law, Justice and Company affairs, which forwards it to the Prime Minister who further moves the proposal to the President of India for the final approval.
  • After the assent of the President, the Secretary to the Department of Justice is set to announce the appointment and issue the circular in the Gazette of India.

Role and composition of the collegium

  • The collegium system was commissioned by two judgments of the Supreme Court in the 1990s. It has no mention in the original Constitution of India or its successive amendments.
  • The Supreme Court collegium consists of the four senior-most judges and the Chief Justice.
  • The collegium of the five judges is responsible for a major role in the Indian judiciary which includes the appointment and transfer of the judges of the High Court and the appointment of the Supreme Court judges.
  • The collegium sends its final recommendation to the President of India for approval.
  • The President can either accept it or reject it. In the case it is rejected, the recommendation comes back to the collegium. If the collegium reiterates its recommendation to the President, then he/she is bound by that recommendation.

 

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