Appointment of Judges: Collegium System, NJAC and Article 124

The correct answer is B, Article 124. Article 124(1) establishes the Supreme Court, and Article 124(2) provides that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such judges of the Supreme Court and the High Courts as the President may deem necessary; its proviso makes consultation with the Chief Justice of India compulsory for the appointment of any judge other than the Chief Justice himself. Option A, Article 122, is wrong because it bars courts from inquiring into the proceedings of Parliament. Option C, Article 127, is wrong because it deals with the appointment of ad hoc judges to the Supreme Court by the Chief Justice of India, not with regular appointments. Option D, Article 217, is wrong because it governs the appointment of judges of a High Court, which is a different provision altogether.

The correct answer is A, S. P. Gupta v. Union of India (1981), known as the First Judges Case. The Court there read "consultation" literally, holding that the Chief Justice of India's opinion was not binding on the government, which therefore kept the final say in appointments. Option B, the Second Judges Case of 1993, is wrong because it reversed this very position, holding that consultation means concurrence and giving primacy to the Chief Justice of India, and in doing so created the collegium. Option C, the Third Judges Case of 1998, is wrong because it only expanded the collegium to the Chief Justice of India and his four senior-most colleagues on a Presidential reference. Option D is wrong because Kesavananda Bharati laid down the basic structure doctrine and did not deal with judicial appointments.

The correct answer is C, four senior-most judges. The Second Judges Case of 1993 required the Chief Justice of India to form his opinion in consultation with his two senior-most colleagues, so the first collegium had three members. In 1998 the President made a reference under Article 143, and in the Third Judges Case the Court enlarged the collegium for Supreme Court appointments to the Chief Justice of India plus his four senior-most colleagues, and directed that the opinions be recorded in writing. Option A is wrong because two colleagues is the 1993 position, which still applies to High Court appointments. Option B and option D are wrong because the numbers three and five were never prescribed for this purpose; the figure of four is the one the 1998 opinion fixed and the Memorandum of Procedure follows.

The correct answer is B, the Ninety-ninth Amendment Act, passed in 2014, which inserted Articles 124A, 124B and 124C to create the National Judicial Appointments Commission and to let Parliament regulate the procedure for appointments by law. It was brought into force in April 2015 along with the NJAC Act, 2014, and struck down by a Constitution Bench the same year. Option A is wrong because the Ninety-seventh Amendment dealt with co-operative societies and added Part IXB. Option C is wrong because the One Hundred and First Amendment introduced the Goods and Services Tax. Option D is wrong because the Forty-second Amendment of 1976 was the wide-ranging "mini constitution" amendment that added words to the Preamble and the Fundamental Duties, and had nothing to do with judicial appointments.

The correct answer is C, the Attorney General of India, who was never a member of the Commission. Article 124A gave the National Judicial Appointments Commission six members: the Chief Justice of India as ex officio chairperson, the two next senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha. Options A, B and D therefore name genuine members and are wrong answers to a question asking for the exception. One of the two eminent persons had to belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women, and both held office for three years and could not be renominated.

The correct answer is B, 4:1, with Justice J. Chelameswar dissenting. A five-judge Constitution Bench held that the Ninety-ninth Amendment and the NJAC Act violated the independence of the judiciary, which is part of the basic structure, mainly because the Union Law Minister and two eminent persons would sit on a body selecting judges. Justice Chelameswar alone upheld the amendment, arguing that the collegium lacked transparency. Option A is wrong because the bench had five judges and the split was not three to two. Option C is wrong because the decision was not unanimous. Option D is wrong because a bench of five judges cannot divide four to three, and Justice Madan Lokur was in the majority that struck the amendment down. The bench also struck down Article 124C, which had allowed Parliament to regulate the procedure of appointment by law, and the judgment is now the leading authority on judicial independence as a facet of the basic structure.

The correct answer is B, 62 years, raised by the Fifteenth Amendment Act, 1963. Article 217(1) originally fixed the retirement age of a High Court judge at 60 years, and the Fifteenth Constitutional Amendment Act of 1963 raised it to 62. Option A is wrong because 60 was indeed the original figure but is no longer the rule. Options C and D are wrong because 65 years is the retirement age of a judge of the Supreme Court under Article 124(2), and that figure has never been changed, nor has the retirement age of a High Court judge been raised to 65 despite repeated recommendations. Candidates should remember the pair 65 and 62 together, with the Fifteenth Amendment attached to the smaller figure. A judge also holds no fixed term, may resign by writing to the President, and continues until the age of retirement unless removed under the special-majority procedure.

The correct answer is C, five years as a judge of a High Court. Article 124(3) requires a citizen of India who either has been a judge of a High Court for at least five years, or has been an advocate of a High Court for at least ten years, or is in the opinion of the President a distinguished jurist. Option A is wrong because the period of practice required is ten years, not five; the two figures are deliberately swapped in examinations. Option B is wrong for the same reason in reverse, since ten years is the advocate's requirement while five years is the judge's. Option D is wrong because the Constitution prescribes no minimum age for a judge of the Supreme Court or of a High Court, although a maximum, the age of retirement, does exist.

The correct answer is C, Article 222, which empowers the President to transfer a judge from one High Court to any other High Court after consultation with the Chief Justice of India; by the collegium practice laid down in the Third Judges Case, the Chief Justice forms that opinion with four senior-most colleagues and the Chief Justices of the two High Courts concerned. Option A is wrong because Article 219 deals with the oath or affirmation taken by a judge of a High Court. Option B is wrong because Article 221 deals with the salaries and allowances of High Court judges, which are charged on the Consolidated Fund of the State. Option D is wrong because Article 224 provides for additional and acting judges of a High Court, and Article 224A for retired judges sitting at a High Court.

The correct answer is B, only 2 and 3. Statement 1 is wrong: the Constitution nowhere says that the senior-most judge must become Chief Justice of India; seniority is a convention and the Memorandum of Procedure records it, not Article 124. Statement 2 is correct, because the convention was broken in 1973 when Justice A. N. Ray was appointed over three senior judges, and in 1977 when Justice M. H. Beg superseded Justice H. R. Khanna, who then resigned. Statement 3 is correct, since the outgoing Chief Justice is asked to recommend his successor under the Memorandum of Procedure. Options A, C and D are therefore wrong because each of them includes statement 1, which misstates the Constitution. The Memorandum of Procedure, an administrative document agreed between the government and the Supreme Court, records the seniority convention and the steps of the process, which is why examiners describe the collegium as a judicial creation rather than a constitutional one.