NDA (II) 2018 General Ability Test · Question 138 of 146

Correct — C, the President of India. The stem is lifted almost word for word from Article 124(2), which says 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 of the High Courts as the President considers necessary. The appointment is a formal act performed by the President; who is recommended for it is settled elsewhere, and the question is careful to ask who appoints rather than who selects.

• (a)the Supreme Court Collegium — The collegium recommends, it does not appoint. It is not mentioned anywhere in the Constitution — it emerged from the Supreme Court's own rulings in the Second and Third Judges cases, of 1993 and 1998, which read the word consultation in Article 124(2) as requiring the concurrence of the senior judges. The warrant of appointment still issues from the President.
• (b)the Cabinet — The Union Council of Ministers advises the President, and in practice the government processes the recommendation, but no constitutional provision makes the Cabinet the appointing authority for a judge. Confusing who advises with who appoints is exactly the error this option is placed to catch.
• (d)the Lok Sabha — Parliament has no part in appointing a judge. Its role is at the other end — removal, under Article 124(4), requires an address by each House supported by a majority of the total membership and by two-thirds of those present and voting.

The Constitution keeps appointment and removal in different hands on purpose. Appointment is executive, by presidential warrant; removal is legislative, by an address of both Houses on proved misbehaviour or incapacity. Everything contentious about judicial appointments in India has happened inside the word consultation in Article 124(2), which the courts have interpreted more than once. The National Judicial Appointments Commission created by the Ninety-ninth Amendment in 2014 was struck down by the Supreme Court in 2015, restoring the collegium system, and that remains the position.

Questions of this shape reward reading the verb. Appointed by has a single constitutional answer, while recommended by, selected by and advised by have different ones — and an option list that contains both a real body such as the collegium and the formal authority is testing whether the candidate can tell them apart. The same distinction runs through the rest of Indian public offices: the Comptroller and Auditor General, the Attorney General, the Chief Election Commissioner and the Governors of States are all appointed by the President, on advice tendered through different routes.

• Article 124(2) provides that every Judge of the Supreme Court is appointed by the President by warrant under his hand and seal.
• The collegium is not named in the Constitution; it arose from the Second and Third Judges cases of 1993 and 1998.
• The National Judicial Appointments Commission, created by the Ninety-ninth Amendment in 2014, was struck down in 2015.
• Removal of a judge under Article 124(4) needs an address by both Houses of Parliament with a special majority.

• Reading the collegium as an appointing authority when it is a recommending body outside the constitutional text.
• Assuming High Court judges are appointed by the Governor; they too are appointed by the President.
• Bringing Parliament into appointment when its role is confined to removal.

Asked as a near-verbatim quotation of an Article, with a well-known but non-constitutional body offered as the trap.

• practice — not a real PYQ

  A Judge of the Supreme Court of India can be removed from office by

  • (a)an order of the Chief Justice of India
  • (b)an order of the President on the advice of the Cabinet
  • (c)an order of the President after an address by both Houses of Parliament with a special majority
  • (d)a resolution of the Supreme Court Collegium

  Answer(c) an order of the President after an address by both Houses of Parliament with a special majority — the procedure in Article 124(4).

• practice — not a real PYQ

  The collegium system of judicial appointments in India derives from

  • (a)an express provision of the Constitution
  • (b)an Act of Parliament
  • (c)judgments of the Supreme Court interpreting Article 124
  • (d)a convention laid down by the President

  Answer(c) judgments of the Supreme Court interpreting Article 124 — chiefly the Second and Third Judges cases of 1993 and 1998.