Relevant Articles of Constitution:
50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.
74. Council of Ministers to aid and advise President.—1 [(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:] 2 [Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]
124. 2) 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:
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause ( 4 )
144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
148. Comptroller and Auditor-General of India.—(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
217. Appointment and conditions of the office of a Judge of a High Court.—( (1) 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 Provided that:
(a) a Judge may, by writing under his hand addressed to the President, resign his office.
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court.
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.
324. Superintendence, direction and control of elections to be vested in an Election Commission (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
How are judges to the higher judiciary appointed today?
2nd Judges Case: Collegium: Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441
How judges were appointed from 1950-60?
Between January 1950 and November 1959, 19 Judges appointed to SC were appointed on the recommendation of CJI and 210 out of 211 High Court Judges were appointed with consent and concurrence of CJI.[“Before memory Fades…..”An Autobiography of Fali S. Nariman (Pages 390 – 391)]
Events preceding 2nd Judges case:
A. Important Judgements against the then Government during late 1960s-early 1980s:
1. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (17th Amendment was challenged).
2. Madhav Rao Scindia v. Union of India, (1971) 1 SCC 85 (26th Amendment)
3. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Basic Structure Doctrine)
4. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (39th Amendment)
5. ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 (Decensing Judgment of H.R. Khanna). Majority Judgment is overruled in case of K.S. Puttaswamy V/s Union of India reported in (2017) 10 SCC 1.
6. Union of India v. Sankalchand Sheth – AIR 1977 SC 2328 – Transfer of Gujarat High
Court Judge to Andhra Pradesh High Court during emergency.
7. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (Clause 4 and 5 of 42nd
Amendment).
B. The most noteworthy change during the Janata regime was that CJI was consulting senior most colleagues about nominees and apprise the government of their views.[ “Judges of the Supreme Court of India” 1950 – 1989 by George H. Gadbois. Jr – Published in 2011 (page 242)]
C. 1. Union Law Minister’s Letter to all CMs : A letter dated March 18, 1981, addressed by Shri Shiv Shankar, the Law Minister of the Government of India, to the Governor of Punjab and the Chief Ministers of the other States. Requesting to obtain from all the Additional judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and(b) obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts.
2. Extension of Additional Judges of Delhi High Court for only 3 months and various issues relating to transfer of several judges.
This resulted in filing of various Petitions in various High Courts. All of which were transferred to Supreme Court.
D. First Judges Case : SP Gupta v. Union of India 1981 Supp SCC 87- Majority of Judges accepted that the Chief Justice had no primacy.
That where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight , the Central Government is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge. So also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is required to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Judge of India through it is entitled to great weight as the opinion of the head of the Indian Judiciary. The ultimate power of appointment rests with the Central Government and that is in accord with the constitutional practice prevailing in all democratic countries.
However, Majority also said :
But even with this provision, we do not think that the safeguard is adequate because it is left to the Central Government to select any one or more of the Judges of the Supreme Court and of the High Courts for the purpose of consultation. We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential – it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited section of humanity.
E. “When Justice P.N. Bhagwati, who delivered the majority judgement in the First Judge Case, became chief justice of India in July 1985 (the next seniormost judge in the Supreme Court being invariably appointed chief justice of India), his recommendation of names of judges to be appointed in the highest court (and in high courts) was not accepted by the GOI. The government relied on his own (Bhagwati’s) majority judgment in the First Judges Case! At the end of his tenure, Chief Justice Bhagwati chafed quite a bit at the government’s refusal to accept the names proposed by him – names that were otherwise deserving.” – [Before Memory Fades… – An Autobiography of Fali S. Nariman (Pages 395)]
– Second Judges Case – (1993) 4 SCC 441 : Questions posed by Justice S. Ratnavel Pandian.
1.“Solomon’s throne was supported by lions on both sides; let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.”
2. In terms of the above Biblical apologue in the Old Testament as coined by Francis Bacon in his ‘Essay of Judicature’, the vital questions which are of great constitutional significance affecting the Indian judicial system that are posed for deep consideration can be figuratively formulated thus:
(1) Whether the present day “Solomon’s throne” (symbolizing the majesty of our justice system) is fully supported by the “Lions” (symbolizing the legislature and executive) on both sides?
(2) Whether the “Lions” are still under the “throne”?
(3) Whether the “Lions” are circumspected from checking or opposing any of the points of sovereignty of the judiciary (i.e. judicial sovereignty)?
(4) Whether it is for the “Lions” to pronounce the name of “Solomon” and his successor to occupy the throne?
(5) Whether “Solomon” has any right of proposing any celebrated structural reform to his “House” (symbolizing the judicial structure) or is it for the “Lions” to make such a proposal to “Solomon’s House” without reference to Solomon?
(6) Is it for the “Lions” to make any alteration to the structure of the Imperial State of “Solomon’s House” and propose sweeping reforms whether constitution and composition of a “Kingdom of Solomon” — even without reference to “Solomon” or even inexcusably ignoring any suggestion of “Solomon”?
(7) Whether under the present scheme and procedure prescribed and followed, “Solomon” is made to sit on the chair of handicapped sub-silentio instead of his own “throne”?
Majority Judgment : Collegium System was introduced. The word “Consultation” in Article 124 (2) and 217 (1) was interpreted as “concurrence”.
Third Judges Case 1998 – Presidential Reference (Under Article 143) – (1998) 7 SCC 739 – Special Reference No. 1 of 1998.
The 2nd Judges case was clarified. For appointment of Supreme Court Judges collegium was is to consist of first 5 Judges of SC and for High Court Judges it is to consist of first 3 Judges of SC.
44. The questions posed by the Reference are now answered, but we should emphasise that the answers should be read in conjunction with the body of this opinion:
1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.
2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.
3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer the Chief Justice or puisne Judge of the High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two seniormost puisne Judges of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the High Court concerned does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
– Forth Judges Case – NJAC Case. (99th Amendment) struck down as violative of Basic Structure – Collegium continues. SCAoRA. v. UOI, (2016) 5 SCC 1.
Previous attempts to set up Judicial Commission:
1990: 67th Constitutional Amendment could not be passed. Bill lapsed.
1997: 82nd Constitutional Amendment could not be passed.
2003: A commission was set up under the Chairmanship of CJ Venkatchalaiah (Retired) which suggested setting up of 5 member Commission.
Some glaring provisions showing unworkability of NJAC provisions.
1. Members of the Commissioner were to be 6 – even number with no provision in case of tie.
2. In the Commission consisted of CJI, 2 senior Judges, Union Law Minister and 2 “Eminent Persons”. “No definition of Eminent Persons given”.
3. Veto power to 2 members.
4. NJAC to suggest the Senior most judge as CJI if he is otherwise “fit”. No standards were given for fitness.
5. For High Court Judges, CJ and 2 Senior Judges could nominate and NJAC could also nominate and the provision was to take opinion of the Governor and CM of the State. However, what if the opinion of Governor and CM were contradictory.
6. Rule making power was given to NJAC. Rules were to be laid before the Parliament and Parliament could suggest amendments.
Dr. Ambedkar in Constituent Assembly on the provisions for appointment of higher judiciary:
“There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself….. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.
With regard to the question of the concurrence of the 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 proposition.”
Dr Rajendra Prasad in his speech, as President of the Constituent Assembly while moving for adoption of the Constitution of India observed as under:
“Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions.”
Appointment procedure in other Countries:
UK; Before 2006 the appointment was made by Crown. After the 2006, Judicial Commission of 16 member makes appointments. These includes 5 from judiciary, 2 professionals 1 Tribunal Judge and there is a provision also including Professors.
USA : The President nominates and Senate confirms.
Malaysia : 9 Member commission. 1 from the Academic Field.
Israel : Judges are selected by Judicial Selection Committee composed of 9 member. (Chairman), another cabinet minister, SC of Supreme Court, 2 other Judges of SC, 2 members of Knesset and 2 representative Israel Bar Association.
Other Countries:
Pakistan: Judicial Commission
France, Italy, Nigeria, Sri Lanka : Council
Bangladesh: President
Australia, Canada, New Zealand: Governor General
Kenya : Judicial Service Commission.
South Africa : Judicial Service Commission (recently they have come out The Criteria And Guidelines Used By The Judicial Service Commission When Considering Candidates For Judicial Appointment) of 25 members)
Criticism levelled against Collegium :
1. No provision in Constitution. 2. Nepotism 3. Favouritism 4. Collegium becomes Imperium in Impirio. 5.No provision for checks and Balance by other organs. 6. CJI recently said that today’s HC judges composition reflects situation of 30 years ago. ToI editorial dt. 10.1.2023 criticises collegium for its indifference to the changing social composition with more women and SCs and OBCs enrolling for Law Courses.
Justice J.S.Verma on his own Judgment :
A. My “Second Judges” case only formalizes the existing practice and the convention right from the time of Nehru. So, what I have said in the judgment is formalizing the convention which was being practiced right from the beginning and that is how the appointment process under Articles 217 and 124 was understood. All these arguments are theoretical. None of them is consistent with the earlier practice, which I was involved in the appointments from 1978 to 1998. Even before my judgment, when I was in the High Court, this was the practice that was followed and the executive never made an appointment without the consent of the Chief Justice. My judgment says that the issue of non-appointment on the ground of antecedents is with the executive, and if the executive doesn’t choose to act, the judiciary cannot be blamed for the same.
B. Justice J.S.Verma in an interview in Front Line dt.10.10.1998
“My 1993 judgement, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgement says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.
Broadly, there are two distinct areas. One is the area of legal acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues (who) are the best persons to adjudge the legal acumen. Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgement said that in the area of legal acumen the judiciary’s opinion should be dominant and in the area of antecedents the executive’s opinion should be dominant. Together, the two should function to find out the most suitable (candidates) available for appointment.”
C. Fali Nariman who successfully argued Second Judges Case devoted a chapter in his Autobiography by the title “A Case I won – But which I would have preferred to lost. However, in an interview on 7/1/2023 described collegium system as a “lesser evil better than NJAC”. https://youtu.be/Yt8hQdvHIis
“Ultimately irrespective of the system in place, it is the honesty of the purpose and the honesty of the human agency that is going to decide.”
Paul Freund once said “the Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era,”
* For vacancy position kindly see the website – doj.gov.in
Courts Sanctioned Strength Working Strength Vacancies
SC 34 27 7
HC 1108 778 330
e.mail : amarbhatt@yahoo.com
The link of the talk Amarbhai gave on 12 January 2023 in Ahmedabad
