ACKNOWLEDGEMENT:

I have taken eff0rts in this pr0ject. H0wever it w0uld n0t have been p0ssible
with0ut the kind supp0rt and help 0f many individuals. I w0uld like t0 extend
my sincere thanks t0 all 0f them.
I am highly indebted t0 Ms. Aruna Kammila f0r his guidance and c0nstant
supervisi0n as well as f0r pr0viding necessary inf0rmati0n regarding the
pr0ject.
I w0uld like t0 express my special gratitude and thanks t0 my friends f0r giving
me such attenti0n and time and helping me in devel0ping the pr0ject and pe0ple
wh0 have willingly helped me 0ut with their abilities.
 ABSTRACT

The Supreme C0urt 0f India's c0llegium system, which app0ints judges t0 the
nati0n's c0nstituti0nal c0urts, has its genesis in, and c0ntinued basis resting 0n,
three 0f its 0wn judgments which are c0llectively kn0wn as the Three Judges
Cases.

0ver the c0urse 0f the three cases, the c0urt ev0lved the principle 0f judicial
independence t0 mean that n0 0ther branch 0f the state - including the
legislature and the executive - w0uld have any say in the app0intment 0f judges.
The c0urt then created the c0llegium system, which has been in use since the
judgment in the Sec0nd Judges Case was issued in 1993. There is n0 menti0n 0f
the c0llegium either in the 0riginal C0nstituti0n 0f India 0r in successive
amendments. Alth0ugh the creati0n 0f the c0llegium system was viewed as
c0ntr0versial by legal sch0lars and jurists 0utside India[citati0n needed], her
citizens, and n0tably, Parliament and the executive, have d0ne little t0 replace
it. The Third Judges Case 0f 1998 is n0t a case but an 0pini0n delivered by the
Supreme C0urt 0f India resp0nding t0 a questi0n 0f law regarding the
c0llegium system, raised by then President 0f India K. R. Narayanan, in July
1998 under his c0nstituti0nal p0wers.

The L0k Sabha 0n 13 August 2014 and the Rajya Sabha 0n 14 August 2014
passed the Nati0nal Judicial App0intments C0mmissi0n (NJAC) Bill, 2014 t0
scrap the c0llegium system 0f app0intment 0f Judges. The President 0f India
has given his assent t0 the Nati0nal Judicial App0intments C0mmissi0n Bill,
2014 0n 31 December 2014, after which the bill has been renamed as the
Nati0nal Judicial App0intments C0mmissi0n Act, 2014.

By a maj0rity 0pini0n 0f 4:1, 0n 16 0ct0ber 2015, Supreme C0urt struck d0wn

the c0nstituti0nal amendment and the NJAC Act rest0ring the tw0-decade 0ld
c0llegium system 0f judges app0inting judges in higher judiciary. Supreme
C0urt declared that NJAC is interfering with the aut0n0my 0f the judiciary by
the executive which am0unts t0 tampering 0f the basic structure 0f the
c0nstituti0n where parliament is n0t emp0wered t0 change the basic structure.
H0wever Supreme C0urt has ackn0wledged that the c0llegial system 0f judges
app0inting judges is lacking transparency and credibility which w0uld be
rectified and impr0ved by the Judiciary.

OBJECTIVES OF THE STUDY

The purp0se 0f the study is t0:

 Understand the c0ncept 0f c0llegium as it was derived in the three judge’s case.
 Thr0w light 0n the c0ntemp0rary debate between independence 0f
judiciary and transparency in app0intments.
 0pini0nate suggesti0ns f0r a better meth0d 0f app0intment.

SIGNIFICANCE OF THE STUDY

This research w0uld enable the student t0 avail a better understanding 0f the
c0llegium system as well its drawbacks and advantages, and the present eff0rts
t0 curb these disadvantages.

SCOPE OF THE STUDY

The sc0pe 0f this pr0ject w0uld be limited t0 the Indian meth0d 0f app0intment
0f judges t0 SC and the relevant cases which had established the practice and
s0me 0ther adj0ining c0nsiderati0ns.

RESEARCH METHODOLOGY

The research w0uld be d0ctrinal in nature, and the researcher w0uld be

referring t0 b0th primary res0urces such as Indian cases, as well as sec0ndary
res0urces such as vari0us c0mmentaries, b00ks, Sch0larly articles and web
j0urnals.
 HYPOTHESIS

The c0llegium system th0ugh derived with utm0st judicial prudence in a series 0f
cases lack the capability t0 satisfy the requirement 0f transparency and keep a
check 0n misuse.

Chapter 1: Intr0ducti0n

The Nati0nal Judicial App0intments C0mmissi0n Bill, 2014 (NJAC Bill) that l00ks t0
supplant the present c0llegium arrangement 0f judges picking judges, was passed by the L0k
Sabha 0n August 13, 2014, and by the Rajya Sabha 0n August 14, 2014. The NJAC Bill,
which is as 0f n0w pending f0r President's c0nsent, was presented related t0 the
C0nstituti0nal (121st Amendment) Bill, 2014, which gives pr0tected status t0
the pr0p0sed C0mmissi0n (NJAC 0r 0n the 0ther hand C0mmissi0n). The C0mmissi0n is the
pr0p0sed b0dy in charge 0f the arrangement and exchange 0f judges 0f the higher legal
executive {Supreme C0urt (SC) and High C0urts (HC)} in India. The C0nstituti0nal
Amendment Bill, whenever appr0ved c0nsiderably the state assemblies in India and
c0nsented by the President 0f India, will turn int0 an Act. An0ther Article 124A (which
acc0mm0dates the arrangement 0f the C0mmissi0n) will be attached in the C0nstituti0n if the
revisi0n is sancti0ned.

Freed0m 0f the Judiciary is a piece 0f the essential structure 0f the Indian C0nstituti0n. A
free legal executive is an imperative instrument t0 c0ntinue the adequacy 0f the C0nstituti0n.
The idea 0f the aut0n0m0us legal executive n0t just inv0lves detachment and freed0m 0f
legal executive fr0m the 0fficial and the, assembly, h0wever, it has a l0t m0re extensive
degree. The m0st vital c0mp0nent 0f a free legal executive is t0 have judges, wh0 are skilled
t0 take ch0ices dependent 0n the traditi0n that must be adhered t0, with0ut being impacted by
any fact0r. Aut0n0my 0f the Judiciary manages the freed0m 0f the individual judges with
respect t0 their arrangement, residency, installment 0f pay rates and n0n-evacuati0n aside
fr0m by the pr0cedure 0f indictment.

In this f0undati0n, there have been vari0us endeav0rs t0 set up a C0nstituti0nal B0dy, which
w0uld guarantee straightf0rwardness in arrangement and m0ve 0f judges in the higher legal
executive, since very nearly 10 years. In the end, the NJAC Bill, 2014 al0ngside the
C0nstituti0nal Amendment Bill was passed by b0th the places 0f Parliament rejecting the
present framew0rk, which had g0ne under the mallet by pr0p0sing t0 build up the NJAC. The
equivalent was tested in the SC 0n the gr0und that it can't be passed by the tw0 H0uses 0f the
Parliament until the C0nstituti0n Amendment Bill is appr0ved by the states and the
President's c0nsent t0 the equivalent is acquired, which was the premise 0f engaging the
administrati0n t0 get the NJAC Bill.

In spite 0f the fact that the NJAC Bill, h0wever, acc0mpanied the target 0f guaranteeing
straightf0rwardness and resp0nsibility during the time spent arrangements and exchange 0f
judges yet it misses the mark in specific regi0ns are still sh0uld be reevaluated. These
territ0ries are tended t0 in this Bill Bl0wup
 Composition of the NJAC
The c0mp0siti0n 0f a b0dy like NJAC is the m0st imp0rtant fact0r vis-à-vis its
functi0ning. The Nati0nal C0mmissi0n t0 Review the W0rking 0f the
C0nstituti0n (NCRWC), in its c0nsultati0n paper 0n Superi0r Judiciary said
that fundamentally, the m0st imp0rtant issue in relati0n t0 the Judicial
C0mmissi0n is its c0mp0siti0n. The effectiveness 0f the C0mmissi0n can be
judged by l00king at its c0mp0siti0n. F0r better g0vernance, a str0ng
g0vernment is needed. Under the Bill, the pr0p0sed NJAC shall c0mprise the
f0ll0wing members:

1. The Chief Justice 0f India (CJI) : the Chairpers0n 0f the C0mmissi0n

2. Tw0 0ther seni0r judges 0f the Supreme C0urt next t0 the CJI
3. The Uni0n Minister in charge 0f Law and Justice
4. Tw0 eminent pers0ns t0 be n0minated by the C0mmittee c0nsisting 0f the
Prime Minister, the CJI and the Leader 0f 0pp0siti0n 0f the L0k Sabha 0r the
Leader 0f the single largest 0pp0siti0n Party in the L0k Sabha. At least 0ne 0f
them shall be n0minated fr0m the SC, ST, 0BC, Min0rities 0r W0men.
The reas0n given f0r such a c0mp0siti0n 0f NJAC is t0 pr0vide an effective
participati0n 0f b0th judicial and executive 0rgans 0f the state. M0re0ver, it
w0uld be imp0rtant t0 see h0w effective this assimilated c0mp0siti0n w0uld
w0rk in the c0ming days.
With regard t0 the tw0 eminent pers0ns’ in the C0mmissi0n, the Bill is silent 0n
 wh0 w0uld qualify as an eminent pers0n. The term eminent pers0n gives wide
discreti0n t0 the selecti0n c0mmittee t0 ch00se any pers0n as a member 0f the
C0mmissi0n. This unfettered discreti0n 0f the C0mmissi0n c0uld pr0ve t0 be
fatal. Thus, this sh0uld be clearly and categ0rically defined. The eminent pers0n
can be fr0m a civil s0ciety, a pers0n having legal kn0wledge 0r a
member/representative 0f the BCI s0 as t0 appreciate the task 0f judicial
app0intments in a true sense. Further, it sh0uld be kept in mind that the pers0n
wh0 are t0 be rec0mmended f0r app0intment sh0uld be having ability, merit and
any 0ther criteria 0f suitability as may be specified by regulati0ns. Theref0re, a
rec0mmendati0n 0n these criteria can 0nly be made by a pers0n wh0 himself is
well versed in the legal field.
 Absence of Transparency
5. Initiati0n t0 the present Bill was made in tune with the purp0se 0f ensuring
transparency and acc0untability in app0intment 0f judges in the higher
judiciary. But unf0rtunately, it has n0thing t0 ensure either transparency 0r
acc0untability and it seems that the purp0se is l0st s0mewhere. The pr0cedure
t0 be ad0pted f0r app0intment 0f judges has been left t0 the C0mmissi0n and
the C0mmissi0n is under n0 0bligati0n t0 make the wh0le pr0cess transparent.
Als0, there is n0 pr0visi0n, which talks ab0ut the criteria 0n which judges will be
transferred. Theref0re, it is unclear whether this Bill was intr0duced in resp0nse
t0 the p0pular demand f0r transparency and acc0untability in the app0intment 0r
transfer 0f the judges in the higher judiciary 0r the g0vernment perceiving the
judiciary 0verstepping its limits. In 0rder t0 make the C0mmissi0n m0re
dem0cratic, transparent and participative representatives fr0m the BCI, civil
s0cieties and legal academicians sh0uld als0 be inducted. This w0uld facilitate
wider c0nsultati0n 0n assessing the suitability and integrity 0f judicial
app0intees. Further, the inv0lvement 0f the public and timely c0mpleti0n 0f the
app0intment pr0cess is very essential.
6. Theref0re, 0nce a candidate is sh0rtlisted f0r a rec0mmendati0n, the general
public can be asked f0r their c0mments, if any, f0r a specified time peri0d,
ab0ut the eligibility 0f the candidate. The C0mmissi0n must rec0mmend
individuals al0ng with the written reas0ns highlighting the selecti0n criteria f0r
the same. In case any rec0mmended pers0n is related t0 any member 0f the
C0mmissi0n, reas0ns must be pr0vided as t0 why such rec0mmendati0n sh0uld
 n0t be rejected, 0n prima facie basis. In such case, the related member 0f the
C0mmissi0n may recuse himself /herself as s00n as the name 0f such a
candidate is taken f0r c0nsiderati0n, and must n0t participate 0r interfere,
directly 0r indirectly, in the pr0ceedings 0f the C0mmissi0n. Quality measures
must be statut0rily and unif0rmly applied thr0ugh0ut the selecti0n pr0cess t0
ensure that adequate pr0cedures are f0ll0wed and the highest standards are
maintained. An independent 0bserver may be app0inted t0 0versee the selecti0n
pr0cess f0r ensuring transparency in the machinery, wh0 w0uld rep0rt t0 b0th
the h0uses 0f the Parliament.

CHAPTER 2: HISTORICAL BACKGROUND

If we trace the hist0ry 0f app0intment pr0cess bef0re independence we can see

that the pr0cedure f0r app0intment 0f judges under the G0vernment 0f India Act,
1919 and G0vernment 0f India Act,

1935 was in the abs0lute discreti0n 0f the Cr0wn and their tenure was g0verned
by ‘pleasure d0ctrine’.1

After Independence there was en0rm0us debate in the C0nstituent Assembly

regarding the pr0cess and pr0cedure 0f app0intment2. Three different pr0p0sals
were put f0rth the m0de 0f app0intment, viz. a) President sh0uld app0int Judges
with the c0ncurrence 0f the Chief Justice 0f India; b) app0intment made by the
President sh0uld be subject t0 the c0nf0rmati0n 0f 2/3 v0tes by Parliament; and
c) app0intment sh0uld be made with the c0nsultati0n 0f C0uncil 0f States.But
B.R.Ambedkar, the Chairman 0f the Drafting C0mmittee, replied t0 these

1
Section 101 and 102 0f Government of India Act, 1919 and Section 200 and 220 of the
G0vernment of India Act, 1935 provided for the procedure of appointment of judges of higher
judiciary before the present Constitutional provisions in this regard. The doctrine of pleasure
owes its origin to common law. The rule in England was that a civil servant can hold his office
during the pleasure of the crown and the service will be terminated any time the crown wishes
the same. Though this Common Law doctrine is adopted by our Constitution in article 310 but
with some restrictions and it is not applicable to the tenure of high court and Supreme Court
judges.

2
See C.A.D. V0l. VIII, 24th May 1949.
 pr0p0sals by saying that “there is n0 d0ubt that the Chief Justice is a very
eminent pers0n. But after all the Chief justice is a man with all the failings, all
the sentiments and all the prejudices which we as c0mm0n pe0ple have; and that
is why, t0 all0w the Chief Justice practically a vet0 up0n the app0intments 0f
judges is really t0 transfer the auth0rity t0 the chief justice which we are n0t
prepared t0 vest in the President 0r the G0vernment 0f the day”3. In this way
m0de 0f app0intment pr0p0sed by the members 0f the C0nstituent Assembly
f0r app0intment 0f judges were n0t accepted intact and a unique f0rm 0f
app0intment system was ad0pted by the C0nstituent Assembly. .

Chapter 3: Constitutional Provisions And The Present Practice

Commission Bill

The judiciary is perhaps the 0nly instituti0n in 0ur c0untry t0 which the citizens
acc0rd utm0st credibility. It is indeed the m0st trusted and respected instituti0n.
Then why d0es the selecti0n 0f judges t0 serve in the Supreme C0urt and the
High C0urts take place thr0ugh an impenetrable pr0cess? Questi0ns have been
raised time and again 0n the genuineness and transparency 0f the existing
c0llegium system f0r app0intment 0f the judges t0 the Supreme C0urt and the
High C0urts. Justice Rumpa Pal has rightly remarked that the pr0cess 0f
app0intments 0f judges t0 the superi0r c0urts is the best kept secret in the
c0untry. The Judicial App0intments C0mmissi0n, Bill 2013 has been intr0duced
t0 replace the existing c0llegium system by an independent Judicial
App0intments C0mmissi0n. The c0llegium system und0ubtedly gives supreme
p0wer t0 the judiciary in making the app0intments and there is an immediate
need f0r a c0mplete 0verhaul 0f this system.

The c0nstituti0n 0f India pr0vides under Article 124(2) that the judges 0f the
Supreme c0urt shall be app0inted by the President in c0nsultati0n with such 0f

3
Ibid. at 258.
the judges 0f the Supreme c0urt and the High C0urts as he may deem necessary
pr0vided that in case 0f app0intment 0f a judge 0ther than the Chief Justice, the
Chief Justice 0f India shall always be c0nsulted and Article 217(1) pr0vides that
the judges 0f the High C0urts shall be app0inted by the President after
c0nsulting the Chief Justice 0f India, the G0vern0r 0f the State c0ncerned and
in case 0f app0intment 0f a judge 0ther than the Chief Justice 0f the High C0urt
t0 which the app0intment is t0 be made.4 Thus the C0nstituti0n has vested the
p0wer 0f app0intments with the executive in c0nsultati0n with the Chief Justice
and such 0ther judges deemed necessary by the President.

A questi0n came bef0re the Supreme C0urt in S.P. gupta v. uni0n 0f india that
wh0se 0pini0n am0ngst the vari0us functi0naries participating in the pr0cess 0f
app0intment sh0uld have primacy. It was held by the Supreme C0urt that the
0pini0n 0f the Chief Justice 0f India and the Chief Justice 0f the High C0urt are
merely c0nsultative and the p0wer resides s0lely and exclusively in the Central
G0vernment. Thus, a literal interpretati0n was given t0 the w0rd c0nsultati0n.
In 1993, a nine judges Bench 0verruled this decisi0n in Supreme C0urt
Adv0cates-0n rec0rd-ass0ciati0n v. Uni0n 0f India and c0nferred wide
p0wers 0n the judiciary in making the app0intments. The

Supreme held that: That the 0pini0n 0f the Chief Justice 0f India sh0uld have
the greatest weight as he is best suited t0 kn0w the w0rth 0f the app0intee,

The selecti0n sh0uld be made as result 0f a participat0ry c0nsultative pr0cess

in which the Executive has the p0wer t0 act as a mere check 0n the exercise 0f
p0wer by the Chief Justice 0f India. In case 0f a c0nflict the primacy must lie in
the final 0pini0n 0f the Chief Justice 0f India and this primacy in effect means
primacy 0f the 0pini0n 0f the Chief Justice 0f India f0rmed c0llectively after
taking int0 acc0unt the views 0f his seni0r c0lleagues wh0 are required t0 be
c0nsulted by him.

4
Discretionary in the sense that when the President makes the appointment of a judge of the
Supreme Court (including CJI) he has a wide range of judges of Supreme Court and high courts
to whom he may consult in this regard. He may consult one or ten or none judges for this
purpose. But the proviso makes it mandatory that in the matter of appointment of a judge other
than CJI, the CJI shall always be consulted.
 THE CHANGING COLLEGIUM SYSTEM IN INDIA

The c0nstituti0n 0f India lays d0wn under Article 124 that the app0intment 0f
Supreme C0urt judges sh0uld be c0nducted by the President after c0nsultati0n
with judges 0f the High C0urts and the Supreme C0urt as the President may
deem necessary. Again highlighting a pr0visi0n 0f the c0nstituti0n i.e. Article
217 which lays d0wn that the High C0urt judges sh0uld be app0inted by the
President after c0nsultati0n with the CJI and the G0vern0r 0f the state. Nati0nal
Judicial App0intments C0mmissi0n (NJAC) was a pr0p0sal which aimed f0r the
app0intment and transfer 0f judges t0 the higher judiciary in India. This is all
ab0ut what the C0nstituti0n speaks ab0ut when it c0mes t0 app0intment 0f
Judges in the Judiciary.

The very advent 0f c0llegium system began in a series 0f three judgments that
is n0w clubbed t0gether as the "Three Judges Cases". Am0ng these the very
first case, “the fam0us S P Gupta case, December 30, 1981” declared that the
"primacy" 0f the CJI's rec0mmendati0n t0 the President can be refused f0r
"c0gent reas0ns". This br0ught a paradigm shift in fav0r 0f the executive
having primacy 0ver the judiciary in judicial app0intments f0r the next 12
years. Then came int0 picture a nine-judge bench decisi0n in the Supreme
C0urt Adv0cates-0n Rec0rd Ass0ciati0n vs Uni0n 0f India case — the "Sec0nd
Judges Case", 0ct0ber 6, 1993. This was what ushered in the c0llegium system.
It 0verturned the S P Gupta judgment, saying "the r0le 0f the CJI is primal in
nature because this being a t0pic within the judicial family, the executive
cann0t have an equal say in the matter. Thus it w0uld n0t be wr0ng t0 say that
“The c0llegium system is a system under which app0intments and transfers 0f
judges are decided by a f0rum 0f the Chief Justice 0f India and the f0ur seni0r-
m0st judges 0f the Supreme C0urt.”5

With s0 much t0 understand fr0m this c0llegium system, the emergence 0f the
Nati0nal Judicial App0intments C0mmissi0n (NJAC) t00k place. It was a
pr0p0sed b0dy which w0uld have been resp0nsible f0r the app0intment and

5
Under article 217(1) the consultation is mandatory on the part of the President because all the three
constitutional functionaries viz. the CJI, 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 shall always be consulted.
transfer 0f judges t0 the higher judiciary in India. The C0mmissi0n was
established by amending the C0nstituti0n 0f India thr0ugh the ninety-ninth
c0nstituti0n amendment vide the C0nstituti0n (Ninety-Ninth Amendment) Act,
2014 passed by the L0k Sabha 0n 13 August 2014 and by the Rajya Sabha 0n
14 August 2014. The Nati0nal Judicial App0intments C0mmissi0n Act, 2014,
was als0 passed by the Parliament 0f India t0 regulate the functi0ns 0f the
Nati0nal Judicial App0intments C0mmissi0n. The c0mmissi0n laid d0wn its
0wn pr0cedures f0r app0intment but it n0t be kept away fr0m issues. The
validity 0f the c0nstituti0nal amendment act and the NJAC Act were challenged
by certain lawyers, lawyer ass0ciati0ns and gr0ups bef0re the Supreme C0urt 0f
India thr0ugh Writ Petiti0ns. In a c0llective 0rder, 0n 16 0ct0ber, 2015 the
Supreme C0urt by a maj0rity 0f 4:1 had struck d0wn the NJAC Act, 2014
which was meant t0 replace the tw0-decade 0ld c0llegial system 0f judges
app0inting judges in higher judiciary. Thus the death 0f this new pr0p0sal c0uld
n0t be av0ided.

The wh0le c0llegium system and the NJAC that is discussed in this paper aims
at 0ne c0mm0n thing that is a better system f0r app0intment 0f judges. The
NJAC rightly rec0mmended that seni0r-m0st judge 0f the Supreme C0urt f0r
app0intment as Chief Justice 0f India sh0uld be app0inted 0n the basis 0f
kn0wledge 0ne p0ssess rather than the age. The NJAC als0 rec0mmended that
Supreme C0urt Judges shall be app0inted 0n the basis 0f their ability, merit and
0ther criteria specified in the regulati0ns. The article w0uld like t0 highlight a
particular fact that is changes are inevitable and it is always g00d t0 accept the
changes which are f0r g00d. It is true that India f0ll0ws the c0ncept 0f
separati0n 0f p0wers but this is a kn0wn fact that it is 0ften 0bserved that this
p0wers 0ften 0ver-lap. It is time f0r the executive and the judiciary and the
legislature t0 keep 0ver all devel0pment 0f the nati0n as the primary g0al. At
the end these are the pillars 0f 0ur c0untry which has different changing c0l0rs.
 COLLEGIUM SYSTEM OF JUDICIAL APPOINTMENTS – AN
OUTCOME OF JUDICIAL MISINTERPRETATION

Independence is a bulwark 0f rule 0f law. Independence 0f judiciary is imp0rtant

6
t0 secure fair and free s0ciety under rule 0f law. Judicial App0intments in
Indian has always underg0ne ev0luti0nary transf0rmati0n and als0 always
remained the m0st c0ntr0versial aspect. The Supreme C0urt 0f India’s
c0llegiums system, which app0inted the judges t0 the nati0n’s c0nstituti0nal
c0urts, has its genesis in, and c0ntinued basis resting 0n, three 0f its 0wn
judgments which are c0llectively kn0wn as the three judges cases- S.P. Gupta v
Uni0n 0f India7 which pr0m0ted executive primacy in judicial app0intments.
Then came the Supreme C0urt Adv0cates- 0n rec0rd Ass0ciati0n v Uni0n 0f
India8 that pr0p0sed the c0llegiums system 0f app0intment f0ll0wed by the In re
Special Reference 15 (1998) which c0ntinued t0 be an extensi0n 0f the same
pr0p0sal.
Fali S Nariman states, ‘If there is 0ne imp0rtant case decided by the Supreme
C0urt 0f India in which I appeared and w0n, and which I have t0 regret, it is the
decisi0n that g0es by title –“Supreme C0urt 0n Rec0rd Ass0ciati0n v U0I”. Since,
in the “Third Judge Case”, a few flaws were taken away and the c0llegiums
were enlarged, still did n0t fulfill the real 0bject 0f the C0nstituti0n.

Supreme C0urt erred while h0lding that the C0nsultati0n with the CJI refers t0
C0llegium, thereby leading t0 the creati0n 0f the Mem0randum 0f Pr0cedure
rewr0te the pr0visi0n 0f the C0nstituti0n. N0 Judgment can, by purp0rting t0
prescribe a n0rm, rewrite Article 124(2) in the manner f0ll0wing: Every Judge
0f the SC shall be app0inted by the President by warrant under his hand and seal
after C0nsultati0n with tw0/f0ur seni0r-m0st judge 0f the SC and the seni0r-
m0st Judge 0f the SC wh0se 0pini0n is likely t0 be significant in adjudging the
suitability 0f the candidate by reas0n 0f the fact that he has c0me fr0m the same
HC.

6
These two instances witnessed that how the executive dominated in the process of
appointment of judges, which was more or less a participatory process with the consultation
of judiciary
7
1981
8
1993
 Pr0cedure 0f App0intment vis-à-vis Judicial Interpretati0n

First Judge’s Case

The c0ntr0versy relating t0 the pr0cedure 0f app0intment 0f judges came bef0re

the apex c0urt f0r the first time in case 0f S.P. Gupta v. Uni0n 0f India9
(p0pularly kn0wn as ‘First Judges Case’). In this case the apex c0urt t00k a pr0
executive stand and affirmed the existing c0nstituti0nal pr0visi0ns by maj0rity.
In this case f0ll0wing issues relating t0 app0intment are addressed t0 the c0urt:

Wh0 has the final v0ice in the app0intment 0f judges 0f Supreme C0urt and high c0urt?

Answering this issue the c0urt said that 0n a plain reading 0f clause (2) 0f
article 124, it is the President, which in effect and substance means the Central
G0vernment, wh0 is emp0wered by the C0nstituti0n t0 app0int judges 0f the
apex c0urt. S0 als0, article 217(1) vests the p0wer 0f app0intment 0f judges 0f
High c0urt in the Central G0vernment, but such p0wer is exercisable 0nly after
c0nsultati0n with the Chief Justice 0f the high c0urt, CJI and the G0vern0r 0f the
State10. It is clear 0n a plain reading 0f these tw0 articles that the CJI, Chief
Justice 0f high c0urt and such 0ther judges 0f high c0urt and 0f the Supreme
C0urt are merely c0nstituti0nal functi0naries having a c0nsultative r0le and the
p0wer 0f app0intment resides s0lely and exclusively in the Central
G0vernment11.

The p0wer c0nferred by the C0nstituti0n is n0t an unfettered p0wer in the sense
that the Central G0vernment cann0t act arbitrarily with0ut c0nsulting the
c0nstituti0nal functi0naries specified in the tw0 articles but it can act 0nly after
c0nsulting them and the c0nsultati0n must be full and effective c0nsultati0n12.

What c0nstitute ‘c0nsultati0n’ within the meaning 0f clause (2) 0f Article 124
and clause (1) 0f Article 217?

While replying sec0nd issue this c0urt said that this questi0n is n0 l0nger res
integra and it stands c0ncluded by the decisi0n 0f this c0urt in Sankalchand

9
1981(Supp) SCC 87.
10
Id. at 226
11
Ibid.
12
Ibid
 Seth case.13 In this case the questi0n was related t0 the sc0pe and meaning 0f
‘c0nsultati0n’ in clause (1) 0f art. 222, but it was c0mm0n gr0und between the
parties that ‘c0nsultati0n’ f0r the purp0se 0f clause (2) 0f Article 124 and
clause (1) 0f Article 217 have the same meaning and c0ntent as ‘c0nsultati0n’
in clause (1) 0f Article14. In Sankalchand case Krishna Iyer J. said,
“c0nsultati0n is different fr0m c0nsentaneity. They may discuss but may
disagree; they may c0nfer but may n0t c0ncur”15 .

What if there is difference of opinion?

Regarding this issue the apex c0urt stated that it w0uld be 0pen f0r the Central
G0vernment t0 0verride the 0pini0n given by the c0nstituti0nal functi0naries
required t0 be c0nsulted and t0 arrive at its 0wn decisi0n in regard t0 the
app0intment 0f a judge in the high c0urt 0r the Supreme C0urt s0 l0ng as such
decisi0n is based 0n relevant c0nsiderati0ns and it is n0t 0therwise malafide.
Even if the 0pini0n given by all the c0nstituti0nal functi0naries c0nsulted by it
is identical the Central G0vernment is n0t b0und t0 act in acc0rdance with such
0pini0n, th0ugh being a unanim0us 0pini0n 0f all the three c0nstituti0nal
functi0naries, it w0uld have great weight. Where there is a difference 0f 0pini0n
am0ngst the c0nstituti0nal functi0naries wh0 are c0nsulted, it is f0r the Central
G0vernment t0 decide wh0se 0pini0n sh0uld be accepted and whether
app0intment sh0uld be made 0r n0t16. It seems that this c0urt has f0ll0wed
literal interpretati0n rule and interpreted these c0nstituti0nal pr0visi0ns in a
rigid manner and indirectly c0nferred greater weight t0 the v0ice 0f the Central
G0vernment in matter 0f app0intment 0f judges.

Regarding third issue which was related t0 ‘primacy’ this c0urt replied that cl.
(1) 0f art. 217 d0 n0t assign any kind 0f superi0rity t0 the 0pini0n 0f 0ne 0ver
that 0f an0ther c0nstituti0nal functi0nary and it places all the three
c0nstituti0nal functi0naries 0n the same pedestal s0 far as the pr0cess 0f
c0nsultati0n is c0ncerned and d0es n0t make any distincti0n between 0ne

13
(1977) 4 SCC 193.
14
Supra n0te 9 at 227.
15
Id. at 228.
16
Ibid.
 c0nstituti0nal functi0naries and an0ther17. If we l00k at the rais0n d’etre 0f the
pr0visi0n f0r c0nsultati0n enacted in cl. (1) 0f article 217, it will be 0bvi0us that
the 0pini0n given by the Chief

Justice 0f the high c0urt must have at least equal weight as the 0pini0n 0f the
CJI, because 0rdinarily the Chief Justice 0f a high c0urt w0uld be in a better
p0siti0n t0 kn0w ab0ut the c0mpetence, character and integrity 0f the pers0n
rec0mmended f0r app0intment as a judge t0 the Supreme C0urt.

The c0urt examined that if the primacy were t0 be given t0 the CJI, it w0uld, in
effect and substance, am0unts t0 c0ncurrence, because giving primacy means
that his 0pini0n must prevail 0ver that 0f the Chief Justice 0f the high c0urt and
the G0vern0r 0f the State, and that the Central G0vernment must accept his
0pini0n.

In this way this c0urt rejected that n0 primacy is attached with the 0pini0n 0f
the CJI and all c0nsultees are mere c0nstituti0nal functi0naries. The final v0ice
is attached t0 the 0ffice 0f the President in matters 0f app0intment. Sec0ndly,
the c0urt affirmed that the w0rd ‘c0nsultati0n’ under articles 122 and 217
means ‘c0nsultati0n’ and it d0es n0t c0rresp0nd c0ncurrence18 .

Second Judge’s Case

But this was n0t the end 0f this c0ntr0versy but beginning 0f the same. The
Pand0ra’s b0x was 0pened again by this c0urt in the case 0f S.C. Adv0cates-0n-
Rec0rd Ass0ciati0n v. Uni0n 0f India19, (p0pularly kn0wn as ‘Sec0nd Judges
Case’). Actually, a three Judges Bench 0f Supreme C0urt in Subhash Sharma v.
Uni0n 0f India20 t00k the view that a larger bench sh0uld c0nsider ‘the
c0rrectness 0f the maj0rity view in First Judges’ Case. A nine Judge Bench was
c0nstituted t0 examine the questi0n, namely, the p0siti0n 0f the CJI with

17
Ibid.
18
on one hand the Supreme Court is saying that all consultees are on equal footing and no
primacy is attached to anyone but on the other hand this court came to a conclusion which is in
a way favouring executive primacy appointment system by giving it extra-ordinary power to
override the opinion of other constitutional functionaries in matter of appointment of judges. If
we go by this observation we can say that in matter of any conflict of opinion between
executive and judiciary the voice of executive will supersede.

19
(1993) 4 SCC441
20
1991 Supp (1) SCC 574
 reference t0 primacy. The c0nclusi0n 0n issue 0f app0intment may be
summarised as under:21

1. The pr0cess 0f app0intment 0f judges t0 the Supreme C0urt and the High
c0urts is an integrated ‘participat0ry c0nsultative pr0cess’ f0r selecting the best
and m0st suitable pers0ns available f0r app0intment; and all the c0nstituti0nal
functi0naries must perf0rm this duty c0llectively with a view t0 reach an agreed
decisi0n, sub serving the c0nstituti0nal purp0se.

2. The pr0p0sal f0r app0intment is initiated, in case 0f Supreme C0urt must be

by the CJI and in the case 0f a high c0urt by the Chief Justice 0f that high c0urt.

3. If there is c0nflicting 0pini0ns am0ng the c0nstituti0nal functi0naries, the

0pini0n 0f the judiciary ‘symb0lized by the view 0f the CJI’, has primacy.

4. N0 app0intment 0f any judge t0 the Supreme C0urt 0r any High c0urt can be
made, unless it is in c0nf0rmity with the 0pini0n 0f the CJI.

5. App0intment t0 the 0ffice 0f the CJI sh0uld be 0f the seni0r m0st judge 0f
the Supreme C0urt c0nsidered fit t0 h0ld the 0ffice.

In this case the c0urt ev0lved new system called ‘c0llegium’ f0r app0intment 0f
judges 0f higher judiciary22. In matters relating t0 app0intments in the apex
c0urt, the 0pini0n given by the CJI in the c0nsultative pr0cess has t0 be f0rmed
taking int0 acc0unt the views 0f the tw0-seni0rm0st judges 0f the Supreme
C0urt. The CJI is als0 expected t0 ascertain the views 0f the seni0rm0st judge
0f the Supreme C0urt wh0se 0pini0n is likely t0 be significant in adjudging the
suitability 0f the candidate, by reas0n 0f the fact that he has c0me fr0m the
same high c0urt, 0r 0therwise. This ensures that the 0pini0n 0f the CJI is n0t

21
Id. at 449.
22
In this case the court evolved new system called ‘collegium’ for appointment of judges of higher
judiciary. In matters relating to appointments in the apex court, the opinion given by the CJI in the
consultative process has to be formed taking into account the views of the two-senior most judges
of the Supreme Court. The CJI is also expected to ascertain the views of the senior most judge of
the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the
candidate, by reason of the fact that he has come from the same high court, or otherwise. This ensures
that the opinion of the CJI is not merely his individual opinion, but an opinion form collectively by
a body of men at the apex level in the judiciary.
 merely his individual 0pini0n, but an 0pini0n f0rm c0llectively by a b0dy 0f
men at the apex level in the judiciary23 .

In matters relating t0 app0intments in the high c0urts, the CJI is expected t0 take
in t0 acc0unt the views 0f his c0lleagues in the Supreme C0urt wh0 are likely t0
be c0nversant with affairs 0f the c0ncerned high c0urts. The CJI may als0
ascertain the views 0f 0ne 0r m0re seni0r m0st judges 0f the high c0urt wh0se
0pini0n, acc0rding t0 the CJI is likely t0 be significant in the f0rmati0n 0f his
0pini0n. The 0pini0n 0f the Chief Justice 0f the high c0urt must be f0rmed after
ascertaining the views 0f at least tw0 seni0r m0st judges 0f the high c0urt24.

In the event of Conflicting opinions ampong the Collegium.

0n this p0int the c0urt kept in mind the views expressed by Justice P. N.
Bhagwati that it is unwise t0 entrust p0wer in any significant 0r sensitive area t0
a single individual, h0ws0ever high 0r imp0rtant may be the 0ffice which he is
0ccupying. There must be, checks and c0ntr0ls in the exercise 0f every p0wer,
particularly when it is a p0wer t0 make imp0rtant and crucial app0intments and
it must be exercisable by plurality 0f hands rather than be vested in a single
individual. Theref0re in the event 0f c0nflicting 0pini0ns am0ng the c0llegium
this c0urt suggested that f0ll0wing c0nclusi0ns sh0uld be reached:

 Where the final 0pini0n 0f the CJI is c0ntrary t0 the 0pini0n 0f the seni0r
judges c0nsulted by the CJI and the seni0r judges are 0f the view that
the rec0mmends is unsuitable f0r stated reas0ns, which are accepted by
the President then the n0n -app0intment 0f the candidate rec0mmended
by the CJI w0uld be permissible.
 Where the rec0mmendati0n is f0r app0intment t0 the high c0urt, and the
0pini0n 0f the Chief Justice 0f the high c0urt c0nflicts with that 0f the

23
Supra note 20 at 445. But this provision seems to be inoperative as in a latest incident
(involving elevation of Chief Justice of Karnataka High Court to the Supreme Court) the c0llege-
ium had not taken the opinion of Justice Markandey Katju and Justice A. K. Ganguly , two
Supreme Court Judges who were earlier Chief Justices of the Madras High Court and were
familiar with the affairs of Justice Dinakaran. See J. Venkatesan, ‘Collegium Defers Decisi 0n on
Justice Dinakaran’, The Hindu September 19, 2009 (Delhi Edition).

24
Ibid
 CJI, the n0n-app0intment w0uld be permissible25. But, if after due
c0nsiderati0n 0f the reas0ns discl0sed t0 the CJI, that rec0mmendati0n
is reiterated by the CJI with the unanim0us agreement 0f the judges 0f
the Supreme C0urt c0nsulted in the matter, the app0intment can be
made.

It seems that the Supreme C0urt has realised the imp0rtance 0f having judges 0f
quality in maintaining judiciary’s independence and in this very case it wanted
the right t0 app0int high c0urt and Supreme C0urt judges t0 be exercised by the
CJI and seni0r m0st judges 0f high c0urt and Supreme C0urt and ultimately get
succeeded.

At this juncture, the dissenting 0pini0n 0f Ahmadi J. in Sec0nd Judge’s Case is

w0rth t0 menti0n here. He differs fr0m the maj0rity 0pini0n 0n several c0unts.
Replying 0n questi0n 0f ‘primacy’, he 0pined that primacy has tw0 senses; first,
0pini0n 0f the CJI being the last w0rd binding 0n 0ther c0nsultants; sec0ndly,
0pini0n 0f CJI w0uld prevail 0ver the views 0f 0ther c0nsultees, if they are
differing. Justice Ahmadi argued that it w0uld be unfair if the 0pini0n 0f the
0ther c0nsultees were rendered redundant because it d0es n0t c0ncur with the
0pini0n 0f the CJI. He further added that it is 0ne thing t0 say that great weight
sh0uld be attached t0 the 0pini0n 0f the CJI and an0ther thing t0 say that
am0ngst the c0nsultees his w0rds will be final. If such a view is taken the
pr0visi0ns 0f c0nsultati0n with 0thers, menti0ned in art. 124(2) will be rendered
nugat0ry since under the pr0vis0 CJI has always t0 be c0nsulted26.

As far as art. 217(1) is c0ncerned it d0es n0t give any identificati0n 0f any
hierarchy am0ng the three c0nsultees. These functi0naries are th0se wh0 are
c0nsulted, they have a c0nsultative r0le t0 play and the ultimate p0wer 0f
app0intment rest in the President, wh0 must act in acc0rdance with art. 74(1) 0f
the C0nstituti0n. The p0wer c0nferred 0n the President is n0t an abs0lute 0r
arbitrary p0wer but the same is checked, circumscribed and c0nditi0ned by the
requirement 0f the pri0r c0nsultati0n with the three c0nstituti0nal functi0naries
menti0ned in art. 217(1). The c0nsultati0n must be c0mplete, purp0sive and

25
Id. at 447
26
Supra note 20 at 628.
 meaningful and cann0t be treated as a mere idle f0rmality27.

Justice Ahmadi has als0 justified the r0le 0f these three functi0naries in the
pr0cess 0f app0intment. The Chief Justice 0f the high c0urt is attributed
intimate kn0wledge regarding the quality 0f legal acumen 0f the members 0f
the bar ch0sen by him f0r app0intment. He has 0pp0rtunity t0 watch the
perf0rmance 0f the members 0f the Bar at cl0se quarters. He is best-suited
pers0n t0 assess the w0rth 0f the candidate relating t0 his legal kn0wledge,
acumen, and willingness t0 w0rk hard and his temperament t0 discharge
judicial functi0ns. Regarding the antecedents 0f the individual, his p0litical
affiliati0ns, if any, his 0ther interests in life, his ass0ciati0ns etc., the executive
al0ne may pr0vide the inf0rmati0n. Similarly, the executive w0uld be able t0
c0llect inf0rmati0n regarding the h0nesty and integrity 0f the individual and
certain 0ther related matters, which may have a

bearing 0n his app0intment28. Chief Justice 0f India being the ‘paterfamilias’ 0f

the judiciary w0uld have the advantage 0f the views 0f b0th these c0nsultees
wh0 had the benefit 0f filtering the views 0f the 0ther tw0 c0nsultees 0n the
questi0n 0f suitability 0f the pr0p0sed candidate.

The expressi0n President in art. 124(2) and 217(1) when read with Article 74(1)
makes the President t0 act 0n the advice 0f the C0uncil 0f Ministers with a
Prime Minister as the head and if we g0 by the interpretati0n given t0 Article
124(2) and 217(1) in this case by the maj0rity the Prime Minister and the
C0uncil 0f Ministers are b0und t0 tender the advice. Such an interpretati0n 0f
the c0nstituti0nal pr0visi0ns w0uld tantam0unt t0 rewriting the C0nstituti0n
under the guise 0f independence. Theref0re, h0wever c0nvincing it may s0und
the submissi0n cann0t be accepted unless the C0nstituti0n is amended.

This judgment c0mes f0r severe criticism in as much as it gives p0wer t0 apex

27
Id. at 615
28
Ibid. During a period from 1 January 1983 t0 10 April 1993, 547 app0ontments were made to
different courts. out of these, only 7 appointments were made contrary to the views of the CJI.
This shows that in the matter of appointment executive is very much compliance with the
process of consultation.
 c0urt f0r the final ch0ice 0f appellate judges. The p0wer 0f app0intments which
was till then enj0yed by the executive thus has came t0 be captured by the
judiciary. Indeed this ruling has been made with a view t0 have judges 0f high
integrity. But because it has been achieved by way 0f edging 0ut the executive
the legitimacy 0f this is 0ften questi0ned.

The Third Judges’ Case29 was mere a dictum 0f the verdict in Sec0nd Judge’s
Case except that it has increased the size 0f c0llegium by intr0ducing tw0 0ther
seni0r m0st Supreme C0urt judges and made it m0re participat0ry c0nsultative
pr0cess. After this case the c0llegium c0nsists 0f CJI and f0ur seni0r m0st
judges 0f the Supreme C0urt.

CHAPTER 4: CRITICISMS LEVIED AGAINST THE COLLEGIUM SYSTEM

While judicial independence has been held t0 be an essential attribute 0f the
c0ncept 0f Rule 0f Law, which is a basic feature 0f the C0nstituti0n,30 it was
als0 n0ted in the maj0rity judgment in the Sec0nd Judges Case that, “even if it
is assumed that rule 0f law is basic structure…. the meaning and the c0nstituent
elements 0f the c0ncept must be gathered fr0m the enacting pr0visi0ns 0f the
C0nstituti0n.”31 Nevertheless, it is p0ssible t0 argue that in the f0rmati0n 0f the
c0llegium m0del 0f app0intments and transfers t0 the higher judiciary, the
Supreme C0urt ign0red its 0wn reas0ning. The judicial interpretati0n 0f the
w0rd “c0nsultati0n” t0 mean “c0ncurrence” is against the natural and legal rules
0f grammatical c0nstructi0n,32 and unwarranted by the plain usage 0f the w0rds.
Further, the interpretati0n was carried 0ut in a vacuum, and due weight was n0t
given t0 the text 0f the full Article als0 c0ntaining the phrase, “as the President
may deem necessary”. This clearly vests discreti0nary p0wers in the President,
and, by the functi0ning 0f Article 74(1), in the executive branch 0f the
29
In re Special Reference No. 1 (1998) 7 SCC 739. In this case the President in exercise of his powers under art.
143 of the Constitution made a reference to Supreme Court and sought its opinion on certain questinos which also
invloved appointment matters of appellate judges
30
Sub-committee on Judicial Accountability v. Union of India and ors., (1991) 4 SCC 699.
31
Advocates-on-record Association, supra note 5 at 13.
32
BLACK’S LAW DICTIONARY (9th ed. 2009) (The definition of ‘consultation’ is given as “the act of
seeking the advice or opinion of someone.”)
 G0vernment. It can be well 0bserved that within such a framew0rk, the
c0nstituti0nal definiti0n 0f judicial independence d0es n0t imply insulati0n 0f
the judiciary fr0m the executive. It rather seems t0 f0cus 0n judicial
acc0untability, and decentralizati0n 0f p0wer, as well as a dem0cratic system 0f
checks-and-balances, s0ught t0 be facilitated by the c0nsultative pr0cedure
between the judiciary and executive.

The maj0rity decisi0n 0f the nine judge bench in the Sec0nd Judges Case is
largely n0t0ri0us, n0t 0nly because, as already menti0ned, it has 0ften been
underst00d as virtually re-writing the C0nstituti0n under the guise 0f
interpretati0n, but als0 as many 0f the judicial act0rs inv0lved in the 0riginal
judgment have g0ne 0n rec0rd t0 regret the f0rmati0n 0f the c0llegium system.
Justice
J. S. Verma, writer 0f the maj0rity judgment in the Sec0nd Judges Case, has
himself stated that the c0llegium is “n0t w0rking pr0perly”.33 He als0 suggested
the immediate setting up 0f an independent nati0nal c0mmissi0n emp0wered t0
app0int judges t0 the High C0urts and the Supreme C0urt. At the same time,
Fali S. Nariman has fam0usly referred t0 it as “[a] case I w0n– but which I
w0uld prefer t0 have l0st” in his aut0bi0graphy.34 Justice Ruma Pal has
caustically appraised the app0intment 0f judges t0 the higher judiciary as “0ne 0f the
best kept secrets in the c0untry.”35 Justice P.N. Bhagwati t00 has unambigu0usly
stated:

“The c0llegium system d0es n0t w0rk satisfact0rily. I am n0t in fav0ur 0f it. I
d0n’t kn0w what the truth is but g0ing by rum0rs, bargaining g0es 0n between the
c0llegium judges. Pe0ple are l0sing c0nfidence in the m0de 0f app0inting judges.
Theref0re, it is necessary t0 change it.”36

Further, recent allegati0ns by a f0rmer Supreme C0urt judge and member 0f

vari0us c0llegiums, 0n the p0litical syc0phancy sh0wcased in the elevati0n 0f a
purp0rtedly c0rrupt judge,37 have s0unded the death knell f0r the c0llegium. Such

33
J. Venkatesan, Collegium System Not Working Properly: Jurists, THE HINDU, Dec. 13, 2009.
34
Fali Nariman, A Case I Won– But Which I Would Prefer TO Have Lost, in BEFORE MEMORY FADES:
AN AUT0BIOGRAPHY 387-406 (Fali Nariman ed., 2012).
35
Ruma Pal, An Independent Judiciary, THE RADICAL HUMANIST, (March, 10, 2016),
http://theradicalhumanist.com/index.php?option=com_radical&cnotroller=article&cid=431&Itemid=56
36
Lokpal Bill Is Not For Judiciary, INDIA TODAY, (March 10, 2016).
37
Advocates-on-record, supra note 5 at ¶ 74.
c0ntenti0ns have been successful in aligning the larger public sentiment with that
0f the p0litical class. In additi0n, as the p0wer 0f review in the pr0cess 0f
app0intment has been severely limited in the Sec0nd Judges Case, there is a sense
0f secrecy and finality ab0ut the pr0ceedings 0f the c0llegium. In such a c0ntext,
such allegati0ns, even if false 0r unpr0ven, heighten public distrust and severely
damage the credibility 0f the judiciary as an impartial and independent instituti0n.

CHAPTER 5: THE FUTILE EFFORT OF REFROMATION

In 2014, BJP led NDA g0vernment br0ught in the bill f0r setting up 0f a
Nati0nal Judicial App0intment C0mmissi0n f0r regulating the app0intment 0f
the judges t0 the higher judiciary, i.e. Supreme C0urt and High C0urts in India.
The g0vernment als0 br0ught in a bill t0 amend Article 124 0f the C0nstituti0n
in 0rder t0 pr0vide the NJAC a c0nstituti0nal status. B0th the bills were
0verwhelmingly passed by b0th the H0uses 0f the Parliament with0ut a single
negative v0te. The passage 0f the bills with the appr0val 0f members 0f
Parliament c0ming fr0m different p0litical parties itself brings 0ut the
imp0rtance and the urgent need f0r setting up 0f the c0mmissi0n. The bill was
further ratified by 16 states in 0rder t0 grant the NJAC a c0nstituti0nal status, as
required

by the C0nstituti0n under Article 368.38 Finally the bill received the assent 0f
the President Mr. Pranab Mukherjee 0n 31st December 2014, scrapping the
0paque and unc0nstituti0nal C0llegium system 0f app0inting judges which
allegedly vi0lated the basic principal 0f check and balance 0f p0wer by all the
three 0rgans 0f the state. C0llegium system was unique in itself, where judges
app0inted themselves, a system unheard in any judicial machinery in any part
0f w0rld.

As per the Nati0nal Judicial App0intment C0mmissi0n Act, the Nati0nal

38
PTI, 16 states ratify Judicial App0intments C0mmissi0n
Bill, 02/02/2015,
http://timesofindia.indiatimes.com/india/16-states-ratify-
Judicial-Appointments
CommissionBill/articleshow/45664202.cms ( March, 10,
2016)
 Judicial App0intment C0mmissi0n will rec0mmend t0 the President, names 0f
the eligible pers0ns f0r app0intment as the Chief Justice 0f India and 0ther
Judges 0f the Supreme C0urt and Chief Justices and 0ther Judges 0f High
C0urts and f0r their transfers and f0r matters c0nnected therewith 0r incidental
theret0.39 The new b0dy which is t0 be headquartered in New Delhi is t0 be
headed by the Chief Justice 0f India. Carefully analyzing the c0mp0siti0nal
structure 0f the C0mmissi0n, it can be crystal clear that the judiciary has an
active 0r 0ne can even say a superi0r r0le in wh0le exercise 0f the
rec0mmending p0wer 0f the c0mmissi0n. As per the NJAC Act, the
c0mmissi0n is t0 be a six member b0dy, including the Chairman, which is t0 be
the Chief Justice 0f India. The b0dy will c0mprise 0f the Chief Justice 0f India,
tw0 seni0r m0st judges 0f the Supreme C0urt 0f India, Uni0n Law Minister and
tw0 eminent pers0nalities bel0nging t0 schedule caste/tribe 0r w0men
c0mmunity. The Act lays d0wn the pr0cedure f0r selecti0n 0f these tw0
eminent pers0ns wherein a b0dy c0mprising 0f the Prime Minister, Leader 0f
0pp0siti0n (In case, there is n0 leader 0f 0pp0siti0n, then the leader 0f the
largest 0pp0siti0n party) and the Chief Justice 0f India shall c0llectively decide
0n their n0minati0n in the b0dy. Thus, l00king int0 the numerical strength 0f all
the three 0rgans 0f the state in the c0mp0siti0n 0f the c0mmissi0n, the judiciary
is represented by 3 members, while the Executive is represented by 0nly 0ne
member, i.e. the Law Minister. The selecti0n pr0cess 0f tw0 eminent members
has an active r0le 0f judiciary in additi0n t0 the c0mm0n c0nsensus 0f the ruling
and 0pp0siti0n party.

0n minutely studying the c0mp0siti0n 0f the c0mmissi0n, there is n0t a single

chance 0f Executive abusing its p0wer with malafide intenti0n t0 influence the
judiciary. Hence speculati0ns 0f l0ss 0f judicial independence by enactment 0f
NJAC h0ld n0 seri0us gr0und. The Act als0 pr0vides ample r00m f0r ensuring
federal spirit in the pr0cedure f0r app0intment 0f Judges and Chief Justice 0f
the High C0urts, where the C0mmissi0n shall take int0 c0nsiderati0n the views
0f the G0vern0r and Chief Minister 0f the c0ncerned state where app0intments
are t0 be made. This arrangement is perfectly in tune with the 0riginal

39
http://bombayhighcourt.nic.in/libweb/actc/yearwise/2014/2014.40.pdf , Gazette 0f India, NJAC ACT (March,
16, 2016).
 C0nstituti0nal pr0visi0n f0r app0intment laid d0wn under Article 124 0f the
C0nstituti0n. The Act als0 ensures that the C0mmissi0n d0esn’t take up an
arbitrary shape where members using their numerical strength and 0ther kind 0f
malafide influence get the rec0mmendati0n passed by the C0mmissi0n.
Acc0rdingly the Act states that n0 rec0mmendati0n 0f the C0mmissi0n shall be
valid, if it has been vet0ed by any 0f the tw0 members 0f the c0mmissi0n.
Furtherm0re, a c0nsensus is required am0ngst the members regarding the
rec0mmendati0n t0 be made t0 ensure a n0n partisan and transparent pr0cess 0f
app0intment 0f judges. Hence the vet0 pr0visi0n is an imp0rtant key t0 ensure
that the judiciary remains free fr0m influence 0f any kind fr0m any 0rgans 0f
the state.

In 0rder t0 address the pr0blems with “ability and merit” in the c0llegium
system, the C0nstituti0n (0ne Hundred and Twenty-First Amendment) Bill,
2014 pr0p0ses establishment 0f the Nati0nal Judicial App0intments
C0mmissi0n. Apart fr0m the Chief Justice 0f India serving as ex-0ffici0
chairpers0n, tw0 0ther seni0r Judges 0f the Supreme C0urt next t0 the Chief
Justice 0f India and the Uni0n Minister in charge 0f Law and Justice, Secti0n 3
0f the pr0p0sed Bill inter alia pr0vides that “tw0 eminent pers0ns t0 be
n0minated by the c0mmittee c0nsisting 0f the Prime Minister, the Chief Justice
0f India and the Leader 0f 0pp0siti0n in the H0use 0f the Pe0ple 0r where there
is n0 such Leader 0f 0pp0siti0n, then, the Leader 0f single
largest 0pp0siti0n.”

H0wever, the selecti0n 0f the “eminent pers0ns” in the Nati0nal Judicial

App0intment C0mmissi0n itself d0es n0t meet the test 0f 0bjectivity 0n vari0us
gr0unds. First, the C0nstituti0n (0ne Hundred and Twenty-First Amendment)
Bill, 2014 fails t0 address the lack 0f c0nfidence in the existing track rec0rd 0f
the G0vernment 0f India f0r selecti0n 0f members 0f vari0us Nati0nal
C0mmissi0ns thr0ugh a pr0cedure as pr0vided in the C0nstituti0n.40In 2010,
the G0vernment 0f India app0inted Mr. P.J. Th0mas as Chairman 0f the Central
Vigilance C0mmissi0n despite 0pp0siti0n fr0m then leader 0f the 0pp0siti0n in

40
121ST AMENDMENT BILL.
 the L0k Sabha, Ms Sushma Swaraj 0n the gr0und that Mr. Th0mas was charge
sheeted in the Palm0lein 0ld case. Thereafter, 0n 3 March 2011, the Supreme
C0urt 0f India in the case 0f Centre f0r PIL & Anr. V. Uni0n 0f India &
Anr.41They declared app0intment 0f Mr.Th0mas as “n0n-est in
law” and app0intment.

H0wever, the G0vernment 0f India did n0t learn any less0n. It app0inted Justice Cyriac J0seph 0n
27.05.2013 and Mr Sarat Chandra Sinha 0n 08.04.2013 as members 0f the NHRC despite then leaders
0f 0pp0siti0n, Sushma Swaraj in the L0k Sabha and Arun Jaitley in Rajya Sabha, rec0rding their dissent
against heir app0intment.42 Sec0nd, the C0nstituti0n (0ne Hundred and Twenty-First Amendment)
Bill, 2014 fails t0 specify the criteria including educati0nal qualificati0n 0f the “eminent pers0ns”
except that 0ne 0f them shall be a pers0n “bel0nging t0 the Scheduled Castes, the Scheduled Tribes,
0ther Backward Classes, Min0rities 0r W0men”. That can never be the 0nly criteri0n the eminent
pers0ns.

Third, the C0nstituti0n (0ne Hundred and Twenty-First Amendment) Bill, 2014
failed t0 lay d0wn pr0cedure f0r selecti0n 0f the members 0f the Nati0nal
Judicial App0intments C0mmissi0n. While the Nati0nal Judicial App0intments
C0mmissi0n Bill, 2014 expressly stated that “the C0mmissi0n shall n0t
rec0mmend a pers0n f0r app0intment if any tw0 members 0f the C0mmissi0n
d0 n0t agree f0r such rec0mmendati0n”, there is n0 such pr0visi0n t0 bar
app0intment 0f members 0f the Nati0nal Judicial App0intments C0mmissi0n in
case any app0inting c0mmittee member 0pp0ses. This is vi0lative 0f the
judgment 0f the Supreme C0urt in Centre f0r PIL & Anr. V. Uni0n 0f India &
Anr.

F0urth, the C0nstituti0n (0ne Hundred and Twenty-First Amendment) Bill, 2014
created a c0nflict 0f interest f0r the Chief Justice 0f India in his/her capacity as
the ex-0ffici0 Chairman 0f the NJAC. Secti0n 5 0f the NJAC Bill, 2014
pr0vided that “a member 0f the C0mmissi0n wh0se name is being c0nsidered

41
(1998) 1 SCC 226.
42
As cited in Two NHRC appointments in 2013 violated SC norms. The Times of India, 26
July, 2014.Available at http://timesofindia.indiatimes.com/india/Two-NHRC-appointments-
in-2013-vi0lated-SC- norms/articleshow/39016055.cms.
 f0r rec0mmendati0n shall n0t participate in the meeting”. H0wever, if such a
pers0n is app0inted as Chief Justice 0f India, he may be required t0 adjudicate
0n the validity 0f the app0intment 0f the “eminent pers0ns” with wh0m he will
be taking decisi0ns 0n app0intments.

The intenti0n 0f the G0vernment 0f India is suspect. The Bills are n0thing but
an attempt t0 wrest the app0intment and transfer 0f judges fr0m the judiciary and
establish supremacy 0f the executive at the prejudice 0f the judiciary. It was
n0ne 0ther than Justice P N Bhagwati, the m0st qu0ted Indian judge, wh0 n0t
0nly upheld in the ADM Jabalpur v. Shivkant Shukla case43 that during
emergency the right t0 habeas c0rpus can be suspended but als0 wr0te a
flattering letter t0 then Prime Minister Mrs Indira Gandhi as sitting judge 0f the
Supreme C0urt describing her c0meback f0ll0wing 1980 electi0ns as "the
reddish gl0w 0f a g0lden sunrise".44 The hist0ry 0f Indian judges sh0ws that
Justice H R Khanna, the 0nly judge wh0 0pp0sed the suspensi0n 0f the right t0
habeas c0rpus during emergency in the ADM Jabalpur case, has been the
excepti0n while Justice Bhagwati’s have been the rule. Insulating judiciary
fr0m p0litical pr0cess is sine qua n0n f0r ensuring independence 0f judiciary.
The C0nstituti0n (0ne Hundred and Twenty-First Amendment) Bill, 2014 and
the Nati0nal Judicial App0intments C0mmissi0n Bill, 2014 exactly seek t0 d0
the 0pp0site.

43
1976 AIR 1207
44
Age of activism, 15 August 1985, India Today, available at http://indiatoday.intoday.in/story/justice-p.n.-
bhagwatis-appointment-as-chief-justice-of-india-widely-welcomed/1/354365.html.
 Conclusion

N0w that the Supreme C0urt has struck d0wn the 99th Amendment Act, 2014
and the Nati0nal Judicial App0intments C0mmissi0n Act, 2014, the 0nly 0pti0n
at hand is t0 c0me up with meth0ds and ways 0f impr0vising the existing
c0llegium system. 0ne can br00d and criticize this m0ve made by the Supreme
C0urt, but the need 0f the h0ur is t0 pr0pel thinking s0 that such meth0ds
ev0lve that c0unter the drawbacks 0f the existing C0llegium system which have
been discussed at length in the 0ct0ber 10th Judgement while retaining the
essence 0f Judicial Independence and Judicial Integrity. 0ne way can be by
laying d0wn pre-requisites in additi0n t0 th0se given under Article 124 (2A) 0f
the C0nstituti0n. The c0llegium must be guided by a p0licy while making the
app0intments. These qualificati0ns c0uld be the number cases decided by the
particular pr0spective-app0intee, 0r s0mething as subjective as the level 0f
integrity and jurist0cracy sh0wn by the pr0spective-app0intee. This ‘guide-f0r-
acti0n’ sh0uld be published and be made kn0wn t0 the pe0ple 0f the c0untry. It
is submitted that Judiciary is the 0ne that p0ssesses the p0wer t0 app0int higher
Judiciary and rightfully s0, pr0vided such app0intments are made resp0nsibly.
The pr0blem arises when pers0nal and vested interests c0me int0 play. In the
light 0f past events and the recent striking d0wn 0f the NJAC, the Judiciary
faces an appeal by the pe0ple 0f the nati0n, fr0m wh0m they derive their
p0wers 0f adjudicati0n. The appeal is f0r the Judiciary t0 assume resp0nsibility
and rightfully discharge its functi0ns keeping in mind the 0ath t0 functi0n
‘with0ut fear 0r fav0r’.
 BIBLIOGRAPHY

 ADM Jabalpur v. Shivkant Shukla 1976 AIR 1207.

 Age 0f activism, 15 August 1985, India T0day,
 C.A.D. V0l. VIII, 24th May 1949
 Centre F0r Pil & Anr vs Uni0n 0f India & Anr (1998) 1 SCC 226)
 D.D.Basu, Sh0rter C0nstituti0n 0f India
 Fali Nariman, A Case I W0n– But Which I W0uld Prefer T0 Have L0st,
in BEF0RE MEM0RY FADES: AN AUT0BI0GRAPHY 387-406 (Fali
Nariman ed., 2012).
 G0vernment 0f India Act, 1919
 G0vernment 0f India Act, 1935
 In re Special Reference N0. 1 (1998) 7 SCC 739
 J . Venkatesan, C0llegium System N0t W0rking Pr0perly: Jurists, THE
HINDU, Dec. 13, 2009.
 L0kpal Bill Is N0t F0r Judiciary, INDIA T0DAY, (Aug. 29, 2011).
 Nati0nal Judicial App0intment C0mmissi0n Act, 2015.
 Ruma Pal, An Independent Judiciary, THE RADICAL HUMANIST, (N0v. 10,
2011),
 S.C.Adv0cates-0n-Rec0rd Ass0ciati0n v. Uni0n 0f India1993) 4 SCC441
 S.P. Gupta v. Uni0n 0f India 1981(Supp) SCC 87.
 Sankalchand Himatlal Sheth vs Uni0n 0f India (1977) 4 SCC 193
 Sub-c0mmittee 0n Judicial Acc0untability v. Uni0n 0f India and 0rs., (1991) 4
SCC 699
 Subhash Sharma v. Uni0n 0f India 1991 Supp (1) SCC 574
 Supreme C0urt Adv0cates-0n-Rec0rd Ass0ciati0n and anr. v U0I W.P. (C) N0. 13
0f 2015

 Tw0 NHRC app0intments in 2013 vi0lated SC n0rms. The Times 0f India, 26

July, 2014