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In order to maintain the supremacy of the Constitution, there must be an independent and impartial authority to decide disputes between the Centre and the States or the States inter se. This function can only be entrusted to a judicial body. The Supreme Court under our Constitution is such an arbitrator. It is the final interpreter and guardian of the Constitution. In addition to the above function of maintaining the supremacy of the Constitution, the Supreme Court is also the guardian of the Fundamental Rights of the people. The Supreme Court has been called upon to safeguard civil and minority rights and play the role of "guardian of the social revolution".
The Judges of the Supreme Court were appointed by the President before the 99th Amendment of the Constitution. The Chief Justice of the Supreme Court was appointed by the President with the consultation of such Judges of the Supreme Court and the High Courts as he deemed necessary for the purpose. But in appointing other Judges, the President would always consult the Chief Justice of India. He might consult such other Judges of the Supreme Court and High Courts as he might deem necessary [Article 124(2)].
Under Article 124(2) the President, in appointing other Judges of the Supreme Court was bound to consult the Chief Justice of India. But in appointing the Chief Justice of India he was not bound to consult anyone. The word 'may' used in Article 124 made it clear that it was not mandatory on him to consult anyone.
In S.P. Gupta v. Union of India, Justice Bhagwati had suggested the appointment of a Judicial Commission on the line of Australian Judicial Commission.
The Law Commission suggested in 1987 that a National Judicial Service Commission should have the final say in matters of selection, promotion and transfer of Judges. The Law Commission suggested that the National Judicial Commission should be headed by the Chief Justice of India which should include three Judges each of the Supreme Court and the High Courts, the previous occupants of the office of the Chief Justice, the Attorney General, an outstanding legal academician and a representative of the Ministry of Law and Justice.
A Bill was introduced in Lok Sabha for setting up a National Judicial Commission in 1990 empowering the President to constitute a high level Judicial Commission for making recommendation for the appointment of a Judge to the Supreme Court (other than the Chief Justice of India), Chief Justice of High Courts and to the transfer of Judges from one High Court to another. However, the Constitution Amendment Bill lapsed consequent to the dissolution of the Lok Sabha.
##Position after 99th Amendment of Constitution The Constitution (Ninety- ninth Amendment) Act, 2014 amended Articles 124 (2), 127 and 128. It inserted Articles 124A, 124B and 124C. According to the amended Article 124 (2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124A. After this amendment, no consultation is required by the President with the Judges of the Supreme Court and the High Court.
Article 124A provides: There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women : Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.
No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
Under Article 124B, the National Judicial Appointments Commission shall have following duties:
Under Article 124C, the Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.
However, in Supreme Court Advocates-on-Record Association v. Union of India, the Supreme Court by its order declared the Constitution (Ninety-ninth) Amendment Act, 2014 and National Judicial Appointments Commission Act, 2014 unconstitutional and void. The system of appointment of Judges to the Supreme Court, Chief Justices and Judges to the High Courts and transfer of Chief Justices and Judges of High Courts from one High Court to another as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the "collegium system") to be operative. The Court also ordered to list the case to consider introduction of appropriate measures, if any, for an improved working system of the Collegium System.
Section 5 (1) of the National Judicial Appointments Commission Act, 2014 (NJAC Act) provided the senior most Judge of the Supreme Court to be appointed as Chief Justice of India subject to the condition of being considered "fit" to hold the office. Regarding it, the Supreme Court held- It was not within the realm of Parliament to subject the process of selection of Judges to the Supreme Court, as well as, to the position of Chief Justice of India in uncertain and ambiguous terms. It was imperative to express the clear parameters of the term "fit" with reference to the senior most Judge of the Supreme Court under Section 5 of the NJAC Act. The term "fit" can be tailor-made to choose a candidate for below in the seniority list.
As a result of this decision, the position as it stood prior to the Constitution (Ninety-ninth Amendment) Act shall continue to be the legal position because the aforesaid decision renders 99th Amendment nugatory.