Why in the news?
- Recently, a record 9 judges have taken oath at one go, taking the Supreme Court strength to 33 (against the maximum possible strength of 34), of whom 4 are women.
Who appoints Supreme Court judges?
- Articles 124(2) and 217 of the Constitution governs the appointment of judges to the Supreme Court and High Courts respectively.
- Under both provisions, the President has the power to make the appointments “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”.
- Over the years, the word “consultation” has been at the centre of debate on the executive’s power to appoint judges. In practice, the executive held this power since Independence, and a convention of seniority was evolved for appointing the Chief Justice of India.
- This changed, however, in the ’80s in a series of Supreme Court cases, in which the judiciary essentially impounded the power of appointment to itself.
- Finally, in the Supreme Court Advocates-on-Record Association v Union of India (1993), a nine-judge Constitution Bench evolved the ‘collegium system’ for appointment and transfer of judges in the higher judiciary.
- The court underlined that the deviation from the text of the Constitution was to guard the independence of the judiciary from the executive and protect its integrity.
- In 2014, the Union government attempted to take back control on judicial appointments by establishing the National Judicial Appointments Commission (NJAC) through constitutional amendments. However, the law which gave the executive a greater control over judicial appointments, was struck down by the Supreme Court as unconstitutional.
How many judges does the Supreme Court have? How is the number decided?
- Currently, the Supreme Court has 34 judges including the CJI. In 1950, when it was established, it had 8 judges including the CJI.
- Parliament, which has the power to increase the number of judges, has gradually done so by amending the Supreme Court (Number of Judges) Act — from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009, and 34 in 2019.
Has the number of women judges always been low?
- Lack of representation in terms of caste and gender has been an issue in the higher judiciary.
- Before the latest appointments, Justice Indira Banerjee was the only woman judge in the Supreme Court. Justice B V Nagarathna is in line to become India’s first woman CJI —80 years after Independence.
- In 1989, justice Fathima Beevi became the first judge to be appointed to the Supreme Court. Since then, however, the SC has had only 11 women judges, inducing the three women appointed recently.
- A 2018 study by Vidhi Centre for Legal Policy noted that while representation of women in the lower judiciary is higher at 27%, they hit a glass ceiling in higher appointments – as district judges and subsequently at the high court level.