NAME: Anushravi Mishra

ROLL NO: 24501052

PAPER NAME: Indian Government and Politics
ASSIGNMENT
QUESTION: Critically examine the present system of appointment of Supreme
Court judges in India.

INTRODUCTIONS:
The judiciary is one of the institutions on which rests the noble edifice of Democracy and
Rule of Law. It is the judiciary which is entrusted with the task of keeping every organ of the
state within the limits of power conferred upon it by the Constitution and the laws, thereby
making the Rule of Law effective and meaningful. Besides ensuring Rule of Law and
realization of human rights, it also ensures prosperity and stability of a society. According to
Justice H.R. settling disputes between private citizens as the arbiter of disputes between the
state and the citizens such disputes should not be susceptible to the pressures of the citizens
and of the state, the independence of judges has come to be accepted as an essential trait of
a democratic society.1 Independence of judiciary includes independence from other organs
of the state viz. the executive and the legislature, as well as independence of individual
judges, so that they can decide a dispute, uninfluenced by any other factor. A judge should
fulfill his duties in the true spirit, and must hold his scales even in the interpretation of laws
and administration of justice. This brings into light one of the underlying objectives of an
independent judiciary i.e. to secure appointment of men of requisite qualities.

However, in India, the judicial institutions by tradition have surrendered to political

commitments due to a final veto power of the executive in judicial appointments. Thus,
assurance of a non-political judiciary has always been contentious. This resulted in a nine-
judge bench evolving the self-serving concept of “collegium” whereby the Chief Justice of
India and a collegium of four senior most judges of the Supreme Court shall have the final
say in appointments to the Supreme Court. Unfortunately, even this process has been found
to be flawed with a plethora of arbitrary and controversial appointments, and no system for
keeping a check on the same. The founding fathers of our Constitution apparently foresaw
this struggle for supremacy, and therefore they brought into play a collective process,
involving both the executive and the judiciary in appointing the judges of the Supreme Court
and the High Courts. However, controversies regarding judicial appointments soon arose.

BACKGROUND- THE CONSTITUTIONAL ASSEMBLY DEBATES

The procedure of appointment of the Supreme Court and the High Court judges was one of
the most debatable themes before the Drafting Committee. Under the Government of India
Act, 1919 and the subsequent Government of India Act, 1935, it was the prerogative of the
crown to appoint the High Court judges, with no specific provision for consulting the Chief
Justice in the process. But the Drafting Committee was against an unquestioned discretion to
rest with the executive. The Sapru Committee in 1945 recommended in its Constitutional
Proposal that "the justices of the Supreme Court and High Courts should be appointed by
the head of the state in consultation with the Chief Justice of the Supreme Court and in case
of High Court Judges, in consultation additionally with the High Court Chief Justice and the
head of the unit concerned. Even the Ad Hoc Committee of the Union Constitution, in the
beginning of 1947 reported that it did not think of “expedient to leave the power of
appointing judges…..to the unfettered discretion of president” and recommended two
alternative methods. One of the methods authorized the President to nominate a person for
the appointment to the Apex Court, with the consultation of the Chief Justice. This
nomination will then require confirmation by a panel of seven to eleven members
comprising Chief Justices of High Courts, Members of Parliament and Law officers of the
Union. The other method required a recommendation of three persons to come from the
above panel, one of whom has to be appointed by the President in consultation with the
Chief Justice of India. The same procedure was to be followed for the appointment of the
Chief Justice of India, except that the Chief Justice was not to be consulted.

Sri [Link], the Constitutional Advisor in the Memorandum of Union Constitution submitted
a few days later, suggested that the Judges should be appointed by the President with the
approval of at least two-third of the Council of States, in which the Chief Justice of India was
an ex-officio member.4 Even the Union Constitution Committee differed from the
recommendation of the Ad Hoc Committee and proposed that “a Judge of Supreme Court
shall be appointed by the President after consulting the Chief Justice and such other judges
of the Supreme Court as also such judges of the High courts as may be necessary for the
purpose.”

In the Assembly, a unanimous opinion was that the President should have the primary
authority in the appointment of judges. However, there were debates regarding who should
advise and recommend him for the same. Some members suggested concurrence of Chief
Justice, whereas other members proposed an approval of the Parliament or the Council of
States. Dr. B.R. Ambedkar referred to the process of appointment in England and U.S.A. In
England, the judges are appointed on the sole discretion of the executive, whereas in U.S.A,
approval of the Senate is also required. He considered it dangerous to leave the
appointment of judges to the exclusive discretion of the President. With this reference, he
concluded:
……Apart from its being cumbersome, it (sole discretion of executive in appointing judges)
also involves the possibility of appointment being influenced by political pressures and
political considerations. The draft article therefore steers a middle course. It does not make
the President the supreme and absolute authority in the matter of making appointments. It
does not also import the influence of the of the concurrence of Chief Justice, it seems to me
that those who advocate that proposition seem to rely implicitly both on the impartiality of
the Chief Justice and the soundness of his judgment. I personally feel no doubt that the
Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the
failings, all the sentiments and all the prejudices which we as common people have; and I
think, to allow the Chief Justice practically a veto upon the appointment of judges is really to
transfer the authority to the Chief Justice which we are not prepared to vest in the President
or the Government of the day. I therefore, think that that is also a dangerous position.

The Assembly, therefore, adopted a middle path, and neither gave the executive nor the
judiciary an absolute authority in matters of appointments. The executive is required to
consult persons who are ex hypothesis well-qualified to give proper advice on this matter.

The following two provisions were laid down by the Assembly for the appointment of the
judges of the Supreme Court and the High Courts:

1. Every judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the judges of the Supreme Court and of the
High Courts in the states as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years. Provided that in the case of
appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be
consulted.

2. Every judge of a High Court shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of India, the Governor of the state,
and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of
the High Court, and shall hold office, in the case of an additional or acting Judge, as provided
in Article 224, and in any other case, until he attains the age of sixty-two years.

Constitutional Provisions about Appointment of Judges of the Supreme Court

Article Establishes the Supreme Court of India consisting of a Chief Justice of India (CJI) and other judges
124(1) appointed by the President.

Every Judge of the Supreme Court shall be appointed by the President after consultation with
Article
Judges of the Supreme Court and of the High Courts in the States as the President may deem
124(2)
necessary.
Article Empower the President to appoint the most senior judge of the Supreme Court as acting Chief
126 Justice in the CJI's absence.

Article Allows the CJI to appoint qualified persons as ad hoc judges in case of vacancies or lack of
127 quorum.

Article
Permits the CJI to request retired judges to sit and act as judges of the Supreme Court.
128

Composition of the Supreme Court

 The Supreme Court consists of 34 judges (one chief justice and thirty-three other
judges).

 In 2019, as per the Supreme Court ( number of Judges) Amendment Act, 2019, the
centre notified an increase in the number of Supreme Court judges from 31 to 34,
including the Chief Justice of India.

Qualifications of Judges
 According to Article 124(3) of the Constitution, a person should have the following
qualifications to be appointed as a judge of the Supreme Court.

o Should be a Citizen of India.

o Should have been a Judge of a High Court for at least five years or have been
an advocate of a High Court for at least 10 years or should be a distinguished
Jurist in the opinion of the President.

o No minimum age has been prescribed by the Constitution for appointment as

a judge of the Supreme Court.

EXECUTIVE V. JUDICIARY - A REGRETTABLE DECADE

The period from 1973 to 1983 has always been regarded as a deplorable
decade, marked by unending tussles between the ruling party and the
judiciary. The decade saw two supersessions of competent, experienced and
senior judges for the post of Chief Justice of India, mass transfers of High
Court Judges and later, the Supreme Court giving a self-inflicting blow
affecting the independence of judiciary.

A. Supersession of Judges
 Appointment of the Chief Justice of Supreme Court or High Courts was
seldom controversial as long as the central government observed the
convention of promotion by seniority. This convention was broken for the first
time in 1973, when after the retirement of Sikri CJ.; Justice A.N. Ray was
appointed as the Chief Justice, superseding Shelet J., Grover J., and Hegde J.,
in order of seniority. The three bypassed judges resigned from the Court in
protest. This led to a national uproar and the Government was accused of
tampering with the independence of the judiciary. However, to justify this
step, the Government invoked the 14th Law Commission Report which
emphasizes on 'merit' and not 'seniority' for appointing the Chief Justice of
India.
The appointment of the Chief Justice was even challenged in the Delhi High
Court through a petition for quo warranto under Art.226 on the following
grounds:
- a) it was mala fide,
b) it was against the rule of seniority inherent in Art. 124(2),
and c) the mandatory consultative process envisaged in Art. 124(2) had not
been resorted to.
Without giving any definitive opinion on points (b) and (c), the High Court
dismissed the petition, holding that in a quo warranto proceeding, the motive
of the appointing authority is irrelevant. The Court held that even if these
contentions are correct, any writ issued will be futile as Ray J., is now the
seniormost judge (as the other senior judges have resigned) and can
immediately be reappointed. The convention of appointing the seniormost
judge was broken successively for the second time in 1976, when after the
retirement of Ray CJ., Beg J. was appointed the Chief Justice superseding
Khanna J., who was senior to him. Consequently, Khanna J. resigned in
protest. “Mrs. Gandhi had struck a 'grievous blow' to the independence of the
judiciary” remarked justice Khanna. Indeed, the independence of judiciary
had been interfered with. Apparently, the supersession of the three judges in
1973 was a result of antigovernment judgments in the famous Kesavananda
Bharti case and they were 'awarded' with supersession on the very next day
after they pronounced their judgments.17 Moreover, Ray J. had ruled for the
government in the Bank Nationalization case18 and was one of the two
dissenters in the Privy Purse case. Khanna J., who was superseded in 1978,
paid this price for an anti-government, but a brave dissenting opinion in the
Habeas Corpus case.

B. The first judges case

The controversies regarding the procedure of appointment of judges came
for determination before the Apex Court in the First Judges case.21 Different
 judges expressed their views on various issues, which also included transfer
and appointment of judges. On the issue of appointment of judges, the Court
gave primacy to executive actions. The Court held with regards to
appointment of High Court Judges, that there must be "full and effective
consultation" between each of the constitutional functionary viz., the Chief
Justice of the High Court concerned, the Governor of the state, the Chief
Justice of India and the President. During such consultation, in case of any
difference of opinion amongst these authorities, the opinion of the President
will have an overriding effect and will thus prevail over other opinions. The
majority held that the decision of the President cannot be challenged in the
Court either on mala fide intentions or on the ground that it was based on
irrelevant considerations. This case, therefore, virtually gave the President a
power of veto over the appointments.

POSITION AFTER 1994

In 1991, in the judgment of Subhash Sharma v. Union of India22, a three-

judge Bench expressed the view with regards the word 'consultation' in
Art.124 (2) that the Constitutional phraseology would require to be read and
expounded in the context of constitutional philosophy of separation of
powers to the extent recognized and adumbrated and the cherished values of
judicial independence. The Bench suggested that this question be considered
by a larger Bench.

A. The second judges’ case

Subsequent to Subhash Sharma case, the process of appointment of judges came to be

considered by a nine-judge Bench of the Supreme Court in the landmark case of
[Link] on Record Association v. Union of India,24 also known as the Second Judges
Case. The case arose out of a public interest writ petition filed in the Supreme Court by the
Lawyers Association questioning several critical issues concerning the judges of the Supreme
Court and the High Courts. The majority opinion was given by [Link] J., and four other
judges. The Court, referring to the 'consultative' process envisaged in Art 124(2) emphasized
that the executive does not enjoy 'primacy' or 'absolute discretion' in the matter of
appointment of Supreme Court judges.25 The Court also indicated that it was not
considered desirable to vest absolute discretion on the Chief Justice on the matter of
appointments, and the executive should act as a check, whenever necessary. The Court
observed:

“The indication is that in the choice of a candidate suitable for appointment,

the opinion of Chief Justice of India should have the greatest weight. The
selection should be made as a result of a participative consultative process in
which the executive should have the power to act as a mere check on the
exercise of power by the Chief Justice of India, to achieve the constitutional
purpose.” Further clarifying ‘the primacy of the opinion of the Chief Justice of
India’, the court said that it is not merely his individual opinion but the
collective opinion formed after taking into account the views of some other
judges as laid down by the nine-judge bench can be summarized into the
following points:-
1. The proposal for appointment of a Supreme Court judge should be initiated
by the Chief Justice of India.
2. All the appointments of the judges of the Supreme Court should be in
conformity of the Chief Justice of India and the consulted judges.
3. The appointment recommended by the Chief Justice may not be made
only in exceptional cases, only after stating cogent reasons. However, if these
reasons are not accepted by the Chief Justice and other consulted judges; the
appointment should be made as a healthy convention.
4. Everyone involved in the consultative process, including the consulted
judges should give their opinion in writing as it acts as an inbuilt check on the
exercise of power.
5. The senior-most judge fit to hold the office should be appointed as the
Chief Justice of India. In case there are any doubts regarding his fitness to
hold the office, it should be clearly stated, which alone may permit a
departure from the long-standing convention.
6. Unless there is a strong cogent reason to justify departure, seniority should
be the basis for making appointment from amongst the High Court judges to
the Supreme Court.

The Court thus, by the way of this judgment, minimized political influence on
the part of the executive and individual discretion on the part of all the
constitutional functionaries involved in the process of appointment of
Supreme Court judges.
C. The third judges’ case

In 1999, the Supreme Court further clarified certain points arising out of the
above judgment in an advisory opinion on a reference made by the President
under Art.143, also known as the Third Judges case.28 A nine-judge Bench
unanimously held with regards to appointment of judges that the Chief
Justice of India shall consult "a collegium of four senior-most judges of the
Supreme Court" thereby widening the scope of consultation process. Before
this opinion was delivered, this collegium consisted of the Chief Justice of
India and two senior-most judges of the Supreme Court. The Court
specifically stated that an opinion formed by the Chief Justice of India in any
other manner has no primacy in the appointments to the Supreme Court and
the Government is not obliged to act thereon.
Further, the Court held that if majority of the collegium is against the
appointment of a particular person, that person shall not be appointed. The
Court even went to say that if two of the judges forming the collegium
express strong views for good reasons, that are averse to the appointment of
a particular person, the Chief Justice shall not press such appointment. The
process of appointment of the judges of the High Courts should be initiated
may be conversant with that High Court. In case of disagreement between
the President of India and the Chief Justice, the opinion of the latter will
prevail.
Regarding the rule of seniority among the High Court judges for appointment
to the Supreme Court, the Court listed the following two points: -

1. Regardless of his standing in the seniority list, a High Court judge can be
appointed as a Supreme Court judge if he has outstanding merit.

2. From amongst several High Court judges of equal merit, a judge may be
appointed as a Supreme Court judge for "good reasons", as for example,
the particular region of the country in which his parent High Court is
based is not represented in the Supreme Court Bench.

By the way of this opinion, the Court tried to diminish any scope of
arbitrariness, even on the part of the judiciary, as the size of the collegium
was increased from two to four senior-most judges other than the Chief
Justice of India and due consideration has to be given to the opinion of each
of the judge of the collegium. But even with all the good intentions and
honest attempts on the part of the Supreme Court judges to make the
selection process transparent and less arbitrary, we will find that the
collegium has completely failed to fulfill its purposeby the Chief Justice of the
High Court concerned, who must form his opinion after ascertaining the
views of at least two senior-most judges of the High Court. Before making its
opinion, the collegium of the Supreme Court judges shall consider the
recommendations of the Chief Justice of the High Court and consult other
High Court judges and judges from the Supreme Court.

PROPOSAL FOR SETTING UP A NATIONAL JUDICIAL COMMISSION

In the First Judges Case, Bhagwati J., suggested the appointment of a judicial
committee on the lines of the Australian Judicial Commission, for
recommending names of persons for the appointment of judges. Later, in its
121st Report issued in 1987, even the Law Commission advocated the setting
up of a National Judicial Commission “NJC”. Since the First Judges case, the
Law Commission had feared arbitrariness on the part of the executive as it
had overriding powers in the matter of selection and appointment of judges,
and thus wanted to remove some powers from the executive’s clutches.
Though the Law Commission did not work out its composition, it tentatively
suggested the following composition: Chief Justice of India (“Chairman”),
three senior most judges of the Supreme Court, retiring Chief Justice of India,
three Chief Justices of the High Courts in the order of seniority, Minister of
Law and Justice, Government of India, Attorney General of India, and an
outstanding law academic. The then Law Minister in 1990 accepted these
recommendations of the Law Commission and introduced the 67th
Constitutional (Amendment) Bill with substantial changes. However, the Bill
lapsed as a result of the dissolution of the Lok Sabha. Another Bill which
sought to amend Article 124 and 217 and establish NJC was introduced in the
Rajya Sabha on December 18, 1998. This Bill proposed the Prime Minister as
the Chairman of the NJC which was primarily to dilute judicial power in the
appointment of judges. However, much like the fate of the earlier Bill, even
this Bill remained only a paper tiger and lapsed with the dissolution of Rajya
Sabha. Later, the proposal to introduce NJC was resurrected by the 98th
Constitutional (Amendment) Bill, 2003, but yet again the Bill never saw light
of the day and was never passed.

CONCLUSION AND RECOMMENDATIONS

If appointment of judges by the executive created problems, taking up of the

task in its own hands by the judiciary has further aggravated such problems.
The Indian Judiciary has been through both the system of appointments viz.
one in which the executive has the final say, and the one in which the
judiciary does. Unfortunately, it is still marred by vacancies, corruption, lack
of accountability etc, owing to politicized appointments in the former and
delayed appointments in the latter. Perhaps, the non-establishment of the
NJC has also exaggerated the problems surrounding the appointment of
judges. Though its establishment has been unsuccessfully mooted thrice in
the Parliament, its composition has always been debated. Recently the sitting
Chief Justice Balakrishnan CJ., said that the judges constitute a "self-
respecting" class of the society and will not tolerate any nonjudge member in
the NJC.37 This means that such commission, if ever it comes into being, will
practically be the same body which the Supreme Court Collegium is and will
increase the chances of arbitrary appointments as the same will now take
place under a more formalized and institutionalized method. The present
state of affairs of judicial appointments demands for a concretized action
towards the establishment of the NJC. This body should comprise of the
retiring Chief Justice of India as its Chairman, the President of India, three
senior-most judges of the Supreme Court, three senior-most Chief Justices of
the High Courts, the Law Minister of India and an outstanding law academic,
selected by the President of India. Such a composition will ensure multiple
brains and collective efforts in the process of appointments, and will be more
in consonance with an old Roman saying There is no harm in giving the
judiciary the final say in appointments, but they should be accountable for
their actions to the public.