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, 6th, 1993 (second judges case) read with the advisory opinion of October, 28th, 1998 (third judges case). The word "Collegium" is nowhere mentioned in the Constitution. It has come into force as per Judicial pronouncements.

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. 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.

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.

In order to change the Collegium system of appointments of Judges of the Supreme Court and High Courts and to make it 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.
 

Process and Functioning of Collegium

Filling up of vacancies in the High Courts is a continuous and collaborative process of the Judiciary and Executive involving various Constitutional Authorities. Hence, the precise time frame for filling up the post of Judges of Supreme Court and High Courts cannot be indicated.

No recommendations of the Supreme Court Collegium for the year 2014 is pending with the Government of India. For the year 2015, the Supreme Court Collegium has conveyed on 1st August, 2018 for remitting two names recommended by the Allahabad High Court back to the Chief Justice of Allahabad High Court.

The Collegium System of appointment of Judges of the Supreme Court and High Courts ceased to exist consequent upon the coming into force of the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 w.e.f. 13.04.2015. The Constitution validity of both the Acts was challenged in the Supreme Court. During the period when the relevant case was pending, only those Additional Judges whose terms were expiring were given extension of service.

The Supreme Court of India vide order dated 16.10.2015 struck down both the Acts as unconstitutional and void and the Collegium System as existing prior to the enforcement of both the Acts was declared to be operative.

Subsequently, the Supreme Court of India vide order dated 16.12.2015 regarding improvement in the “Collegium System”, directed the Government to finalize the existing Memorandum of Procedure (MoP)by supplementing it in consultation with the Supreme Court Collegium, taking into consideration factors such as eligibility criteria, transparency, establishment of secretariat and mechanism to deal with complaints.

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

The details of the appointments made in the Supreme Court and High Courts are given below

At present, 143 names recommended by the High Court Collegium have been submitted and pending with the Supreme Court Collegium. Further, 5 names recommended by Supreme Court Collegium have been referred back by the Government to Supreme Court for reconsideration and 27 proposals including those names reiterated by Supreme Court Collegium are under various stages of processing with the Government, as per the procedure prescribed in the MoP.