Article 124(2)

Article 124(2) deals with the appointment of judges of the Supreme Court of India.

It says that every judge of the Supreme Court is appointed by the President of India by warrant under his hand and seal, after consultation with such judges of the Supreme Court and High Courts as the President may consider necessary.

For appointment of a Supreme Court judge other than the Chief Justice of India, consultation with the Chief Justice of India is mandatory. The judge holds office until the age of 65 years. The original constitutional text uses the language of appointment by the President after consultation with judges of the Supreme Court and High Courts, with mandatory consultation of the CJI for judges other than the CJI.

Constitutional Position

Article 124(2) is part of Article 124, which deals with the establishment and constitution of the Supreme Court.

It is connected with:

• appointment of Supreme Court judges
• consultation between executive and judiciary
• tenure of Supreme Court judges
• resignation and removal
• judicial independence

The Article reflects the Constitution’s attempt to balance two principles:

• the executive formally appoints judges through the President;
• the judiciary must be consulted to protect judicial independence.

Appointment Process

In practice, appointments to the Supreme Court are made through the collegium system.

The process generally works as follows:

• The Supreme Court collegium recommends names for appointment.
• The recommendation is sent to the Union Government.
• The Government may seek clarification or return the recommendation for reconsideration.
• If the collegium reiterates the recommendation, the convention is that the appointment should be made.
• The President formally appoints the judge by warrant.

For appointment of the Chief Justice of India, the senior-most judge of the Supreme Court is generally appointed, following the convention of seniority.

Evolution of Collegium System

The word “collegium” is not mentioned in the Constitution. It evolved through judicial interpretation of Article 124(2) and Article 217.

• In the First Judges Case, 1981, the Supreme Court gave primacy to the executive in judicial appointments.
  
• In the Second Judges Case, 1993, the Court reversed this position and held that the opinion of the Chief Justice of India, formed after consultation with senior judges, would have primacy. The judgment clarified that the CJI’s opinion must be institutional, not merely personal.
  
• In the Third Judges Case, 1998, the collegium system was clarified further. For Supreme Court appointments, the collegium came to mean the CJI and four senior-most judges of the Supreme Court.
  

This transformed Article 124(2) from an executive-led consultation model into a judiciary-led appointments model.

NJAC Issue

The Constitution was amended to replace the collegium system with the National Judicial Appointments Commission through the 99th Constitutional Amendment Act and the NJAC Act.

The NJAC would have included members from the judiciary, executive and civil society in judicial appointments.

However, in Supreme Court Advocates-on-Record Association v. Union of India, 2015, the Supreme Court struck down the 99th Amendment and the NJAC Act. The Court held that judicial primacy in appointments is part of the basic structure because it protects judicial independence.

As a result, the collegium system continued.

Importance of Article 124(2)

Article 124(2) is important because the appointment of Supreme Court judges directly affects the independence, quality and credibility of the judiciary.

Its importance lies in:

• protecting judicial independence
• ensuring separation of powers
• preventing excessive executive control over appointments
• maintaining public confidence in the judiciary
• preserving the Supreme Court’s role as guardian of the Constitution
• ensuring continuity and institutional stability in the higher judiciary

Key Concerns

• The collegium system has been criticised for lack of transparency.
• Reasons for selection or rejection of candidates are not always fully disclosed.
• Diversity in the higher judiciary remains a concern, especially representation of women, SCs, STs, OBCs and minorities.
• Delay between collegium recommendation and government appointment affects judicial vacancies.
• The executive-collegium conflict sometimes creates uncertainty.
• There is no independent secretariat for judicial appointments.
• Merit, seniority, integrity and representation are difficult to balance.

Current Relevance

Article 124(2) remains central to debates on judicial reform. Recent debates around judicial vacancies, transparency, diversity and delays in appointments continue to revolve around the interpretation and operation of this provision.

The issue is not only who appoints judges, but how to create a system that is independent, transparent, accountable and representative.

Way Forward

Judicial appointments should preserve judicial independence while improving transparency and accountability.

Possible reforms include:

• clearer criteria for selection
• timely action on collegium recommendations
• better disclosure of reasons, without harming confidentiality
• institutional secretariat for the collegium
• stronger attention to diversity and representation
• transparent data on vacancies and appointments
• improved Memorandum of Procedure

The challenge is to reform the collegium without weakening the independence of the judiciary.

Conclusion

Article 124(2) is the constitutional basis for appointment of Supreme Court judges. Although the text speaks of appointment by the President after consultation, judicial interpretation has converted this into the collegium system, where the judiciary has primacy.

The provision remains one of the most debated parts of the Constitution because it lies at the intersection of judicial independence, executive accountability, transparency and democratic legitimacy.