TAMILNADU NATIONAL LAW SCHOOL

TIRUCHIRAPALLI

CONSTITUTIONAL LAW - II

WRITTEN SUBMISSION FOR INTERNAL QUOTIENT

M.G.ARAVIND RAJ
FOURTH SEMESTER

1
 CONSTITUTIONAL LAW - II PROJECT
ON

CONUNDRUMS OF COLLEGIUM SYSTEM

STRIVING FOR A HONEST AND
ACCOUNTABLE JUDICIARY

SUBMITTED TO:
Prof. M. Mahindra Prabu
Professor, Constitutional Law - II

SUBMITTED ON:
09-04-2016

SUBMITTED BY:

M.G. Aravind Raj

BA0140009
2
 DECLARATION OF AUTHORSHIP

I, M.G.ARAVIND RAJ, hereby declare that this project titled Conundrums of Collegium
System Striving for a honest and accountable judiciary submitted to Tamil Nadu
National Law School, Tiruchirappalli , is the record of an bonafide work done by me under
the expert guidance of the venerated Constitutional Law-II faculty of Tamil Nadu National
Law School, Tiruchirappalli.

All authentic information furnished in the project is true to the best of my knowledge and
belief.

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 ACKNOWLEDGEMENT

First of all, I thank my Constitutional Law-II Professor Mr. M. Mahindra Prabu for having
allotted me such a challenging and dynamic topic. Even repaying him through mere words in
beyond the domain of my lexicon that was the backbone during all hurdles that I confronted
during the making of this project, hence I am forever duly indebted to him as a student.

Also, I am grateful to the staff and administration of Tamil Nadu National Law School who
contributed useful resources tremendously in the making of this project by providing library
infrastructure and data connections.

This entire project wouldnt have been possible without the involvement of precious inputs of
my parents and friends who sacrificed their valuable time to guide and advice me at all times
of need to make this project a successful one.

Last but not the least, I am also grateful to God for giving me the courage and strength to
withstand all hindrances during this project and make it successfully finally since its
inception.

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 Table of Contents
A. TABLE OF CASES .............................................................................................................. 7
B. LIST OF ABBREVIATIONS ............................................................................................... 8
CHAPTER I - INTRODUCTION .......................................................................................... 9
1.1 Research Objective ......................................................................................................... 10
1.2 Research Questions ........................................................................................................ 10
1.3 Research Methodology................................................................................................... 11
1.4 Review of Literature....................................................................................................... 11
1.4.1 Supreme But not Infallible, Essays in Honour of the Supreme Court of India ....... 11
1.4.2 The Judge Orates - Selected Writings of Justice V.R.Krishna Iyer and The National
Judicial Commission......................................................................................................... 12
1.4.3 The Technique of Judicial Appointment, Harold J. Laski ....................................... 12
1.4.4 Judicial Appointments, Nirmalendu Bikash Rakshit ............................................... 13
CHAPTER II - ORIGINS AND CURRENT STATUS OF JUDICIAL
APPOINTMENTS A BRIEF STUDY
.................................................................................................................................................. 14
2.1 The United States of America ........................................................................................ 14
2.1.1 Constitutional Scheme ............................................................................................. 14
2.1.2 Relevant Authorities ................................................................................................ 15
2.1.3 Fallacies in the System ............................................................................................ 18
2.2 The United Kingdom ...................................................................................................... 19
2.2.1 Judicial Appointments Commission ........................................................................ 19
2.2.2 Election to the Supreme Court................................................................................. 21
2.2.2 Role of the Lord Chancellor .................................................................................... 23
2.2.3 Criticism .................................................................................................................. 24
2.3 India and the Intention of the Framers of the Indian Constitution ................................. 25
CHAPTER III - THE NJAC ITS EMERGENCE AND THE FLAWS A
MICROCOSM OF THE REPRESENTATIONS BEFORE AND AGAINST THE
COLLEGIUM
.................................................................................................................................................. 29
3.1 Reports and Bills ............................................................................................................ 29
3.1.1 Reports ..................................................................................................................... 29
3.1.2 Bills .......................................................................................................................... 33
3.2 Judiciary and the Debate on the Appointment of Judges ............................................... 34

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 3.2.1 Shamsher Singh Case .............................................................................................. 34
3.2.2 S.P. Gupta Case ....................................................................................................... 35
3.2.3 Subhash Sharma Case .............................................................................................. 37
3.2.4 Supreme Court Advocates-on-Record Association Case ........................................ 39
3.2.5 In Re Presidential Reference No.1 of 1998 ............................................................. 41
3.3 The National Judicial Appointments Commission Act, 2014 and The Constitution
(Ninety-Ninth Amendment) Act, 2014 ................................................................................ 43
3.3.1 The Provisions of the Act ........................................................................................ 45
3.4 The Judicial Ruling in Support of the Collegium Supreme Court Advocates-on-
Record-Association Case ..................................................................................................... 48
3.4.1 Justice Khehar Singh ............................................................................................... 48
3.4.2 Justice Madan.B.Lokur ............................................................................................ 50
3.4.3 Justice Kurian Joseph .............................................................................................. 51
3.4.4 Justice Adarsh Kumar Goel ..................................................................................... 52
3.4.5 Justice Chelameshwar Dissenting ........................................................................ 53
CHAPTER IV - COLLEGIUM 2.0 THE WAY FORWARD ........................................ 55
4.1 Parliamentary Reforms with regard to the Appointments .............................................. 56
4.1.1 The Judges (Inquiry) Bill and the Parliamentary Standing Committees Twenty
First Report on the Judges (Inquiry) Bill, 2006 ................................................................ 56
4.1.2 Second Administrative Reforms Commission, IVth Report ................................... 56
4.1.3 The Judicial Standards and Accountability Bill, 2012 ............................................ 57
4.2 Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium .................................................... 59
4.2.1 Transparency and Confidentiality ........................................................................... 60
4.2.2 Eligibility Criterion.................................................................................................. 61
4.2.3 Institutional Framework to tackle Inefficiency and Corruption .............................. 63
4.2.4 All India Judicial Service ........................................................................................ 66
CHAPTER V - CONCLUSION............................................................................................ 71
CHAPTER VI - BIBLIOGRAPHY ...................................................................................... 73
Primary Sources ................................................................................................................... 73
Secondary Sources ............................................................................................................... 74
Webliography ....................................................................................................................... 76
ANNEXURE............................................................................................................................ 77

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 A. TABLE OF CASES

1. Shamsher Singh v State of Punjab (1974) (2) SCC 831

2. S.P. Gupta v President Of India And Ors, (1981) Suppl. (1) SCC 87
3. Subhash Sharma v Union of India, 1991(1) Suppl. SCC 574
4. Supreme Court Advocates-on-Record Association and Anr v Union of India ,
(1993) 4 SCC 441
5. In re Special Reference No.1 of 1998, (1998) 7 SCC 739
6. Supreme Court Advocates-on-Record Association and Anr v Union of India, W.P. (C)
No. 13 of 2015
7. All India Judges Association v Union of India, AIR 1992 SC 165
8. K.H.Siraj v High Court of Kerala, AIR 2006 SC 239

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 B. LIST OF ABBREVIATIONS

1. SCC Supreme Court Cases

2. USA United States of America
3. UK United Kingdom
4. FBI Federal Bureau of Investigation
5. IB Intelligence Bureau
6. CBI Central Bureau of Investigation
7. H.C High Court in India
8. S.C Supreme Court of India
9. C.J.I Chief Justice of India
10. C.J Chief Justice
11. CRA The Constitutional Reforms Act, 2005
12. BCI Bar Council of India
13. NJAC National Judicial Appointments Commission
14. JAC Judicial Appointments Commission
15. AIJS All India Judicial Services

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 CHAPTER- I

INTRODUCTION

Difficulty and controversy in the interpretation of any great document are as inevitable as the
changing seasons. The institution entrusted with interpreting a constitution has that
constitution in its custody. The institution, the judiciary or parliament, is in a position to
protect, damage, or destroy it.1 If theres any passage that could summarize so effectively the
conundrums in the existing paradigm, one does not have to look any further than the
aforementioned passage. Ever since the day we collectively adopted the Constitution of India
through our representatives; the questions regarding who was superior to the other had begun
between the judiciary and the other two organs. This would then turn into a full blown crisis
as the years rolled by. Perhaps what was about to come, could be seen in the way the
jurisprudence of the court had changed and how the legislature was reacting to the new
activist role that was being adopted by the Court.2

This scheme of events that was set in motion by the two organs of governance would then
take a historic turn which would change the status quo in toto. The then Prime Minister Indira
Gandhi and her works which resulted in a number of politicized judicial appointments and
also the controversial elevation3 of Justice A.N.Ray over three other Senior Justices to the
position of Chief Justice would open a can of worms that was in the emergence for a long
time. What followed was a slew of judgments that would go on to establish a new method for
the appointment of judges, namely the Collegium System which was formulated in the
Second Judges Case and then further legitimised in the Third Judges Case. At the same
time, the Parliament was trying all it can to reverse the principles laid down by the apex court
in order to bring about their involvement in the appointment of judges. Claims and Counter-
Claims were exchanged which then culminated in the NJAC Bill. This particular bill was a
result of years of problems within the Collegium System. The system turned out to be archaic

1
See B.N.Kirpal et al., Supreme But Not Infallible - Essays in Honour of the Supreme Court of India, 1 (7th
impression, 2015) Oxford University Press, New Delhi
2
See Lok Sabha Debates, Fifth Series, Vol. 9, No.13, Cols. 337-46
( Indira Gandhi would claim in the Lok Sabha, regarding the new Article 31-C which acts as an escape clause,
that the government would not take a move that takes away the independence of the judiciary but then there is
no decision in the world that is not political which indicates a rift between the judiciary and the legislature )
3
Justice A.N.Ray had voted in favour of Parliamentary Supremacy in the Keshvananda Bharti Case which made
him good in the eyes of Indira resulting in his Controversial Elevation to the post of Chief Justice.

9
and also the lack of transparency and accountability would turn out to be very problematic.
Arguments were made regarding the closed doors functioning of the Collegium giving rise to
claims of corruption and scandalous appointments as such. Many saw this as a step down
from the excellent panel of judges existing previously, prior to this system coming into being.
The new NJAC would comprise of The Chief Justice, Two other senior most judges, The
Law minister and two eminent persons appointed by the Prime Minister, The leader of
Opposition or the Chief Justice of India and the working would be such that, if any two
members veto a decision then it would be considered as a veto of the candidate meaning the
appointment cannot go forward. Much of the controversy occurred due to the presence of the
eminent persons in particular with claims that there may be political influence in their
appointment thereby politicizing the judicial atmosphere as such.

Eminent scholars4, jurists and the judiciary itself saw this as an attempt being made by the
legislature to involve in the appointment of judges to make the process occur as per their
whims and fantasies. The scars acquired from the Indira Gandhi era remained, thereby
resulting in the judiciary holding as a majority that the involvement of the executive will
undermine the independence of the judiciary and struck down the NJAC. However, the Court
recognised the fact that there remained deeply entrenched problems with the Collegium
system itself, which it intended to resolve in order to improve upon the existing system of
judicial appointments.

1.1 Research Objective

The objective of the research is to make a case for a system that has fallen into the very own
entrapments it built in its course and also attempt to entangle the system from its systemic
flaws in order to provide for an institution that can be looked forward to be one of the
legitimized pillars of the country.

1.2 Research Questions

The need of the hour being a transparent and an accountable judiciary, there are number of
research questions needed to be analyzed in order to achieve the ends required to be obtained.

Whether the intention of the framers of the constitution regarding the appointment of
judges was matched in the due course and why have we moved away from the

4
Suhrith Parthasarathy, Safeguarding Judicial Autonomy, The Hindu, August 25, 2014,
http://www.thehindu.com/opinion/lead/national-judicial-appointments-commission-bill-safeguarding-judicial-
autonomy/article6347268.ece

10
 intention over time. Also, to analyze in general as to how judicial appointments are
made in other jurisdictions.
Whether the NJAC should be allowed to be brought in and what possible deterrence
does it give to judicial independence?
Whether other possible changes in the system of appointments could be made, and if
made, what could be the possible changes?

1.3 Research Methodology

The Research included in the instant case is purely Doctrinal in nature. It involves the
examining and analysis of the examined material including the legal doctrines, frameworks
and case laws within a logical and systematic construct to conduct the research accordingly.

1.4 Review of Literature

1.4.1 Supreme But not Infallible, Essays in Honour of the Supreme Court of India5

This book presented a number of cases and essays that were represented in the topic that was
primarily related to the Supreme Court of India and a number of aspects related to the Court.
However, for the purpose of our study, it would be sufficient to consider the essay of
Granville Austin on the Supreme Court and the Struggle for Custody of the Constitution.6

This essay is particularly relevant because of the fact that, this lays the foundation to the
study at hand itself coming into existence as the author traces the origin of the power struggle
between the Supreme Court as a representative of the judiciary and the Government, be it the
executive or the legislature. He notes that, this power struggle was because of the fact that,
whoever interprets the constitution, has the constitution in its custody7 and therefore, the
struggle for supremacy so began between the Supreme Court and the Government itself in
order to create their own dominant power structure. This according to him, created a
response-counter-response pattern thereby creating chaos in the midst of the people as well
as the Constitution itself.

5
See supra note 1 at p (1-16)
6
Id. at p 1
7
Id.

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1.4.2 The Judge Orates - Selected Writings of Justice V.R.Krishna Iyer8 and The
National Judicial Commission9

Justice V.R. Krishna Iyer was one of the most open critiques of the Collegium system and he
made it felt to the public that there was an inherent need for the existence of a Judicial
Commission to deal with the appointment of judges because of the fact that the Collegium
system was faltering. Accordingly, he would state that the innovative method of nominating
members through the Collegium is a egregious fabrication and a functioning anarchy 10. He
believed that an honest and transparent method that existed has been taken away by the
bringing into existence of this particular institution as a creation of the judiciary.

He propounded that the nation needs a proper judicial commission that is free from the
executive and also the judiciary and for the same he employed the United States procedure
and the procedure in Britain to show that there was transparency and also exposes the process
to ultimate scrutiny while at the same time according large levels of investigative and
reference processes thereby making the process a very accountable and trustworthy model. 11

1.4.3 The Technique of Judicial Appointment, Harold J. Laski12

Mr. Laski made a comparative study of the judicial appointments as is present under different
sovereigns of the world in his research on the technique of judicial appointments. The
researcher feels bound to mention the research that was established by him in his study in
order to showcase the need for the discussion on the research at hand. It is of much relevance
to note that, there has always been furore over how much of independence the judiciary must
be accorded with and as to how such independence needs to be accorded to the judiciary.
Accordingly, the author specified in his article,

It is difficult to overestimate the significance of the judiciary in the modern state. The work
of the executive has become so vast, the powers delegated to it by the legislature are so wide,
that judges are, perhaps more than at any previous time, the real safeguard of personal
liberty13

8
Dr.Lokendra Malik & Dr. Manish Arora, The Judge Orates - Selected Writings of Justice V.R.Krishna Iyer,
Universal Law Publishing Company, New Delhi
9
V.R.Krishna Iyer, National Judicial Commission, The Hindu, Oct. 20, 2003, Available at
http://www.thehindu.com/2003/10/20/stories/2003102001481000.htm
10
Supra note 8 at p 13
11
Id. at p 17
12
Harold J. Laski, The Technique of Judicial Appointment, 24 Michigan Law Review 529 (1926)
13
Id.

12
On weighing the merits of the case presented by each of the organs of the government, he
summarized that; the best method of appointments would be to allow the executive to make
the appointments.14 And thereafter he proposed a body of judges who would then take into
consideration the candidates and then recommend them to be appointed by the executive,
which then makes the appointment.

1.4.4 Judicial Appointments, Nirmalendu Bikash Rakshit15

As an opinion that provides a glimpse into the other side of the debate that ensues between
the sections of the government as to who should be making the appointments and if so, then
how should the appointments be made, the opinion of the author in the instant case would
provide some valuable insight into the same.

The author postulated that, on the emergence of the National Judicial Commission for the
appointment of judges, the same commission would be bringing a significant change into the
prevailing method of appointment of judges.16 He felt that the judges, unless properly chosen,
would result in a miscarriage of justice itself and therefore in furtherance of the same, there
was the need for the formation of the appointments commission to rectify the same. During
the course of his article, the author chose to trace the origins of the methods of appointments
and he concluded in a general view that, such a method should be adopted as is necessary for
the creation of an efficient judicial system.17

He did not choose the side of the judiciary nor did he choose the side of the executive and the
legislature, but rather, the author would merely make the statement that, there was a need to
set up such a commission that would standardize the method of appointment of judges.18

14
See generally Id. at p 533
15
Nirmalendu Bikash Rakshit, Judicial Appointments, 39 Economic and Political Weekly 2959 (2004)
16
Id.
17
Id. at p 2960
18
Id.

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 CHAPTER II

ORIGINS AND CURRENT STATUS OF JUDICIAL APPOINTMENTS A BRIEF

STUDY

2.1 The United States of America

The United States of America is widely regarded to be the epitome of true federal structure.
Under such a structure, the inherent expectation would be to have the traditional separation of
powers of the legislative, executive and the judiciary. In the case of the United States of
America, a co-operative system of appointment of judges is followed.19 Under a co-operative
system of appointment, two or more institutions must co-operate with each other in order to
make the appointments accordingly to the courts of law.20

In the case of the USA, we shall look briefly into the two phases of the judicial appointments
in order to cull out the spirit of the mode of appointment of judges in the USA. The first
phase is the position before the Constitution was put in place and the Second phase is the
position after the Constitution was inducted.

2.1.1 Constitutional Scheme

The delegates gathered at the Constitutional Convention in Philadelphia in 1787 expressed

widespread agreement that a national judiciary should be established. The present
Constitution of United States America was adopted at the Philadelphia Convention held on
17th September 1787. It came into force on 4th March 1789 after subsequent ratification.
After the adoption of the constitution, Judiciary Act of 1789 set up a judicial system
composed of a Supreme Court, consisting of a chief justice and five associate justices; three
circuit courts, each comprising two justices of the Supreme Court and a district judge; and 13
district courts, each presided over by one district judge.21

19
See generally United States Institute of Peace, Judicial appointments and judicial independence,
http://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf (last visited Mar. 31, 2016, 4.30 P.M
(IST))
20
Id.
21
Federal Judiciary Act, 1789, Ch. 20 Stat. 73, 1 and 2 (United States of America)

14
The constitutional scheme of the United States of America is based on the system of
Presidential form of government.22 The executive head of the Country being the President
would be responsible for the appointment of judges as was specified in the New Jersey Plan.
However as mentioned earlier, the USA follows a co-operative system of appointment which
means that there is a legislative interference in the appointment too. This is put in place by
the advice and consent clause in the relevant Article.

Article 2 Section 2 of the US Constitution lays down that,

He shall have Power, by and with the Advice and Consent of the Senate shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.

As is apparent from the above clause, popularly regarded as the appointments clause, the
appointment of the Judges is placed as a power in the name of the President along with the
advice and consent of the Senate. Similar to other constitutions, there exists an inherent
problem with giving the advice and consent clause with political influences playing their
parts accordingly.23

2.1.2 Relevant Authorities

Apart from the constitutional scheme, although not mentioned in the Constitution, an
important role is also played midway in the process after the President selects, but before
the Senate as a whole considers the nominee by the Senate Judiciary Committee.24 There
are a number of steps involved in the nomination of a person as a judge by the president.

First and foremost, at the instance of a vacancy in the Supreme Court, the ball is set in
motion. The Department of Justice is the department that is concerned with the suggesting of
names to the President, which is essentially supervised by the Attorney General. Within the
Department, the Office of Policy Development (OPD) has primary responsibility for the

23
Supra note 19
24
Id.

15
judicial selection process of all Article III judicial vacancies. This office conducts a number
of enquiries with the judges, lawyers, jurists and forms a prima facie case about the nominee.
A questionnaire is also sent to the potential candidate to obtain his or her personal data and
questions related to the legal system are also posed to the nominees. If this test turns out to be
positive, the file is then moved to the FBI for a thorough background check.25

Along with this prima facie investigation, the president also consults with the senators,
usually belonging to his party majority to know about that particular judge. This includes the
senators from the home state to which the judge belongs to.26

Followed by the FBI investigation is the role played by the American Bar Association. The
American Bar Association interviews judges and lawyers in the candidates community about
the candidates qualifications, including temperament, and also interviews the candidate. At
the end of the ABA process, the ABA sends an informal piece of advice to the Department of
Justice on its rating of the candidate as well qualified, qualified, or not qualified if the
President were to nominate the candidate. The stated focus of each evaluation according to
the committee is on the candidates integrity, professional competence and judicial
temperament27 If the ratings are positive along with the FBI report also being cleared, the
Attorney General in his own capacity gives the name to the President in order for the name to
be nominated. Following this, the President nominates such a person, however, to get it
passed in the senate, there needs to be another set of discussions held inside the senate itself.

This is where the role of the Senate Judiciary Committee comes in. The Judiciary Committee
conducts its own investigation into the nominees background. Some sources include the
questionnaires and also confidential FBI reports that are not subject to public reports. Only
the financial disclosure, answers to questions on the Constitution and law, biography of the
Candidates are subject to public reports while the sensitive responses to questions and also
the criminal background of the candidate is not subject to public reports.28 In the stage before
the hearing in the Senate, there are a number of public debates that take place on the
nominees qualifications and the meaning of the nomination on the future of the Court. This

25
Id.
26
Id.
27
See American Bar Association, Standing Committee on Federal Judiciary: What It Is and How It Works,
http://www.americanbar.org/groups/committees/federal_judiciary.html (last visited Feb 21, 2016, 4.30 PM
(I.S.T))
28
Supra note 19

16
happens through media and other related groups in order to keep the public involved in the
conversation. 29

Following this, the hearing of the Judiciary Committee ensues. The hearing is initiated by the
nominee stating his case in front of the Committee. Consequently, he is questioned on
varying issues by the members of the Committee starting from the Chairman of the
Committee. During this course, the senators may also stand in to support the nominee by
providing proper guided support through their opinion about the nominee. In the aftermath of
the same, there is a recommendation made by the Committee to the Senate based on the
report made by the Committee. This recommendation is however not mandatory, it may be
made positively, negatively or also absent altogether. However if the recommendation is
made positively, then the same is put forward to the Senates full house for debate. In the
senate, a number of senators will take to the floor of the house to either support or oppose the
nominee based on a large variety of criteria ranging from the ideological balance of the court
to the need for a particular qualification for the nomination.30

The common ideology however is regarded to be to maintain the Advise and Consent of
the Senate as a very important procedural requirement.31 Based on the debates on this number
of factors, the same is then put to vote in front of the Senate. The senate then considers its
various options ranging from the sending back of the nomination to the judiciary Committee
to the approval of the same. Finally, the senate when it passes the nominee as recommended
by a simple majority of the members present and voting, the appointment process is said to
have concluded.

Considering the above process of appointment, it is seen that the USA follows a cooperative
system of appointment of judges. While the executive head holds primacy in making a
nomination of the members, there is a need for the senate to advice and consent to the same
by the senate thereby making an accountable system of working.

However, in between these two interpretations lies a neutral interpretation which says that
there needs to be rational interpretation of the advice and consent clause through which it
needs to be established that the advice is a constitutional mandate of the Senate to advice the

29
Id.
30
Id.
31
E.g. The advice-and-consent role of the Senate as described by one of its Members noted in 1994, is
something that we do not take lightly because this is the only opportunity for the people of this Nation to
express whether or not they deem a nominee qualified to sit on the highest court in the land. Sen. Mark O.
Hatfield, remarks in the Senate, Congressional Record, vol. 140, July 29, 1994, pp. 18692-93.

17
president on the kind of nominations that he is required to make but it is not binding in
nature.32 Historically, the degree to which Senate advice has been sought or used has varied,
depending on the President.33 These conditions would seem to be hinting at a very efficient
system of judicial appointments, however, there are some obvious inherent flaws in following
this kind of appointments system.

2.1.3 Fallacies in the System

Firstly, the problem of the difference of opinion and conflict of interest takes place between
the institutions involved in such a system.34 The cooperative system also, risks deadlock,
since appointment requires the agreement of different institutions to go forward. It is
possible that in circumstances of political conflict, appointments would not be made at all,
and vacancies would persist.35 Secondly, a problem exists with the influence of the Senate in
the judicial appointments. It is usually the party that is in the majority that imposes its
ideologies and the judges are picked in accordance with that. In America alone, the problem
exists with the bipartisan system of government that exists with a never ending battle between
the Democrats and the Republicans in the senate and the appointment of Liberal or
Conservative judges to the Courts.

A judicial appointment process based on patronage calls into question the integrity and
quality of the judicial system as a whole by raising doubts about whether the best possible
candidates are being chosen. A system of judicial appointments based on partisan affiliation
also has implications for judicial independence and, more generally, for the role of the
judiciary in the political system. It is always controversial when the mode of appointment
involves the senate as it leaves it completely to the behest of party interests which might not
essentially be good for the functioning of the Court itself.36 This is an essential flaw to the
system in the USA. Also, in the lower judiciary rungs, there is an elective system for the
appointment of judges which is again very problematic. Thirty-eight of the constituent states

32
See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis
(Constitutional Conflicts), 33 (2nd Edition, 2003), Duke University Press Books, Durham.
Gerhardt adds, does not mandate any formal pre nomination role for the Senate to consult with the president;
nor does it impose any obligation on the president to consult with the Senate prior to nominating people to
confirmable posts. The Constitution does, however, make it clear that the president or his nominees may have to
pay a price if he ignores the Senates advice.
33
Id.
34
E.g The current state of the Obama administration and the trouble faced to fill the vacancy left by Justice
Scalia with republican senate
35
Supra note 19
36
Supra note 12

18
elect their judges by a direct popular vote; in four others they are elected by the legislature.
The term of election varies enormously; in Vermont it is for so short a period as two years,
while the judges of the highest court in New York hold office for fourteen and those in
Pennsylvania for twenty- one, years. This is an inherent flaw in the system because it makes a
judge more like a politician and less like a jurist. This kind of method will again lead to
improper appointments and with popular but not essentially the best nominees getting the
preference in the appointments thereby reducing the efficiency of the system itself. Although
there may be some positives in this system, these can be used during the course of the
analysis of the Study at hand.

2.2 The United Kingdom

In the United Kingdom, the method of appointment of judges is through an independent

Judicial Commission.37 Prior to the setting up of this Judicial Commission, there was a mode
of appointment where a particular Minister (usually the minister of Justice) who would make
the appointment on his own, which was considered to be very political and against the very
echelons of the Court system.38 The Judicial Commission plays a crucial role in the selection
of Judges to the Courts of the UK. The procedure for appointing a justice of the Supreme
Court is essentially governed by the Section 25 to 31 and Schedule 8 of the Constitutional
Reform Act of 2005.

2.2.1 Judicial Appointments Commission

The Judicial Appointments Commission (JAC) is an independent commission that selects

candidates for judicial office in courts and tribunals in England and Wales, and for some
tribunals whose jurisdiction extends to Scotland or Northern Ireland.39 The Role played by
the Judicial Appointments Commission is primarily with regards to the Courts and Tribunals
and not the Supreme Court of U.K.

37
See Kaleeswaram Raj, Justice in judicial appointment, The Hindu, Jan. 18, 2014,
http://www.thehindu.com/opinion/lead/justice-in-judicial-appointments/article5587974.ece
38
Supra note 19
39
See Judicial Appointments Commission, About Us,
https://jac.judiciary.gov.uk/about-us (last visited Feb. 19, 2016, 4.30 PM (I.S.T))

19
The Judicial Appointments Commission and the selection of the members of the same is
based solely on the qualifications40 and after consideration of the same, through a method of
open competition41 and therein the members are selected to the said commission.

This Judicial Appointments Commission is an independent body that is responsible for the
selection of judges, but not those in the federal judiciary. Initially, this was laid in the hands
of the Lord Chancellor, but after the passing of the Constitutional Reforms Act, the same
position was changed and the power was transferred to the Judicial Appointments
Commission.

This Commission would be selecting the candidates on the basis of their merits. However,
what merits are considered is something that needs to be considered. Accordingly, it has been
claimed that the process of the appointment is set in motion when a candidate applies online
by submitting a copy of his application is then put through a two steps might be opted for.
Firstly, there may be a sifting process that takes place where the application that has been so
presented is put through a rigorous analysis and the mitigating factors and the supporting
factors are taken into consideration in furtherance of the same. The other step that is taken is
the invitation of a candidate to take up a qualifying test.42

After the process of sifting has been done, the individual feedbacks may be given to the
candidates and in cases where there are too many candidates, there may be given such
feedbacks which are published totally on the website. Similarly, with respect to the qualifying
tests, such a feedback is given so as to indicate the level of performance of the candidate.43
With regards to the qualifying tests, they are made in a bid to understand a candidates
independence of mind and the soundness in his decision making abilities.44 The Question
papers for the same are drafted by the judges who have the experience in that particular field
of law and the same is also expressed to the candidate before he takes up the exam.45

After all of this is done, the JAC then makes a short list and invites such shortlisted
candidates for an interview on the Selection day. On this day, the candidates are posed with

40
The Judicial Appointments Commission Regulations, 2013
41
Id. There are 15 Commissioner of which the 14 other Commissioners (a) 7 must be holders of judicial
office, (b) 5 must be lay members, and (c) 2 must be persons practising or employed as lawyers and the
selection process. The procedure for such selection is mentioned as well.
42
See Judicial Appointments Commission, Selection Process,
https://jac.judiciary.gov.uk/selection-process (last visited Feb. 19, 2016, 4.30 PM (I.S.T))
43
Id.
44
See Judicial Appointments Commission, Qualifying Tests,
https://jac.judiciary.gov.uk/qualifying-tests (last visited Feb. 19, 2016, 4.30 PM (I.S.T))
45
Id.

20
such situations like role playing and situational questions and the performance of the
candidate is therefore gauged on the basis of that.46

Post the Selection Day, if the JAC feels fit to do so, in some cases, the JAC may take such
consultative procedures as it deems fit to do so with such authorities like those who were
holding the posts that the candidates are applying for, or someone who has other relevant
experience and in case of consulting any other person, the JAC can do so with the
consultation of the Lord Chief Justice.47

JAC Commissioners sit as the Selection and Character Committee to make the final decision
on which candidates to recommend. The Committee examines any potential character issues
that may affect a candidates suitability for appointment. After the same, the recommendation
is passed on to the appropriate authority for appointment and in the course of the same the
Commission must reflect the comments of the statutory consultees and discuss any
divergence of opinion.48

2.2.2 Election to the Supreme Court

The election to the Supreme Court has a separate procedure to itself. The primary criteria
based on which all other statutory criterion are based, is the Merit of the candidate. A
candidate is said to be chosen purely on merit and based on open competition.49 The
Constitutional Reforms Act of 2005 was amended by the Judicial Appointments Regulations
2013 wherein the number of members required to be in the Commission was laid down.
There are a total of 15 Commissioners including the Chairman. All but three of the members
of the Commission are recruited on the basis of open competition those three members being
the judicial members of the council who are selected by the Judges Council or the Tribunals
Council. The members are not restricted to any particular section of the Government or the
organs of government. They are drawn from sources such as the judiciary, the legal
profession, non-legally qualified judicial officer holders and the public.50

46
See Judicial Appointments Commission, Selection Day,
https://jac.judiciary.gov.uk/selection-day (last visited Feb. 19, 2016, 4.30 PM (I.S.T))
47
See Judicial Appointments Commission, Statutory Consultation,
https://jac.judiciary.gov.uk/statutory-consultation (last visited Feb. 19, 2016, 4.30 PM (I.S.T))
48
See Judicial Appointments Commission, Selection Decisions,
https://jac.judiciary.gov.uk/selection-decisions (last visited Feb. 19, 2016, 4.30 PM (I.S.T))
49
Supra note 39
50
Id.

21
Briefly, we shall consider the appointments of the judges to the Supreme Court of U.K in
order to understand how their system of appointments works. It is to be known that the
Supreme Court itself was set up in the year 2005 as a result of the Constitutional Reforms Act
of 2005 and started functioning in the year 2009. This was in place of the now defunct, House
of Lords and acts as the highest source of appeal for cases in the U.K.

The primary qualifications are laid down by Section 25 of the CRA wherein the candidate is
required to have held high judicial office for a period of at least two years or been a
qualifying practitioner for a period of at least 15 years.51 A definition of qualifying
practitioner is also given in the Act under Section 26. 52 The Act lays down that the
recommendation for the appointment to the offices of the Court, has to emanate from the
Prime Minister himself.53

However, in general the selection process is said to have officially begun when the Lord
Commissioner convenes the selection commission for the selection of a person to be
recommended.54 The Selection Commission is comprised of the members as specified in
Schedule 8 of the said Act. The members include, the President of the Supreme Court (Senior
most judge), the Deputy President of the Supreme Court and then one member each from the
Judicial Appointments Commission, the Judicial Appointments Board for Scotland and the
Northern Ireland Judicial Appointments Commission.55 These members from the respective
Judicial Appointments Commissions are nominated by the Lord Chancellor and the Lord
Chancellor is mandated by the Act to nominate at least one non-legally qualified member
who does not hold any judicial office or is a practicing lawyer.56 This is a bid to increase the
diversity of the Selection Commission accordingly. 57 There is no explicit interference by the
legislature or executive in the quorum of the commission.

During the course of their selection, the Commission is required to consult a number of
people as a compulsory activity. They include the senior judges who are not a part of the
commission, the Lord Chancellor, the First Minister in Scotland, the Assembly First

51
The Constitutional Reforms Act, 2005, C.4, 25 (United Kingdom)
52
Id. 26
53
Id. clause (2) and clause (3)
54
Id. clause (5)
55
The Constitutional Reforms Act, 2005, C.4,Part 1, Schedule 8, General Rules - 1
56
Id. Rule 6
57
See Parliament Publications, Chapter 2: The constitutional framework, point no. 17
http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27205.htm (last visited Mar. 1, 2016,
4.30 PM (I.S.T))

22
Secretary in Wales and the Secretary of State for Northern Ireland.58 There is also a need to
ensure that the judges have enough knowledge and experience in the law of the United
59
Kingdom. Following such a selection, the Commission makes a report and submits the
same to the Lord Chancellor.

2.2.2 Role of the Lord Chancellor

The Lord Chancellor60 is considered to be the essential link between the parliament and the
judiciary.61 His role is to accept or reject the nominations given based on the merits of each
case. According to Section 28, he is supposed to consult again with the members and judges
who were consulted as a part of Section 27 of the Act.62 Briefly put, the Lord Chancellor has
three stages to put the nomination through.63 In the first stage, the Lord Chancellor may
notify the selection or choose to reject the Selection or ask the Commission to reconsider the
selection. This then moves it to the second stage where the person who has been reconsidered
or rejected is dealt with. In accordance with this, the rejected member cannot be nominated
again. However, a reconsidered member goes through the same process again of notification
or rejection or reconsideration. Again in the third and final stage, the Lord Chancellor has to
notify the selection even if a name was not reconsidered as under the previous stages.
However, once rejected, the same member cannot be nominated yet again. 64 The rejection of
the Lord Chancellor has to be on the basis of the conditions wherein there is no strong case
for the suitability or the merit of the candidate. These reasons need to be given by him in
writing to the Commission.

If, following the consultations above, the Lord Chancellor is satisfied with the
recommendation made by the selection commission, he forwards the persons name to the
Prime Minister who, in turn, sends the recommendation to Her Majesty The Queen who
makes the formal appointment.65

58
Supra note 51 27(2)
59
Id. 27(8)
60
The Lord Chancellor is a member of the Cabinet and, by law, is responsible for the efficient functioning and
independence of the courts.
61
See generally supra note 19
62
Supra note 51 28 (5)
63
Id. 29
64
Id. 31
65
See generally The Supreme Court, Appointments of Justices,
https://www.supremecourt.uk/about/appointments-of-justices.html (last visited Mar. 1, 2016, 4.30 PM (I.S.T))

23
Thus, according to the process of appointment of judges in the U.K. there are two levels. At
the lower level which is for the High Courts, the Judges are appointed on the basis of the
selection by the JAC whose members are mostly on the basis of open competition. However,
the Supreme Court is not as simple as that. The Supreme Courts selection process involves
within itself a Selection Commission and the Lord Chancellor along with the advice of the
executive members of different states of the U.K. This particular method is categorically
efficient because of the fact that it solves an essential problem that is the problem of political
influence and at the same time also gives merit as the primary criterion for the selection of
judges to the higher echelons of judiciary. The Commission is particularly effective because
of the lack of pervasive interference of the Legislature or Executive into the Selection
process. The CRA, 2005 preserves the role for the Lord Chancellor only once the Selection
Commission has made its decision.66 Another key to the efficiency of this system is by the
adoption of the role of the Lord Chancellor. The Lord Chancellor is considered to be the key
to the accountability of the selection process. However, his powers are consciously limited to
provide for the independence of judiciary.67 As a result of this there exists a balance between
the independence of judiciary and the accountability as well.

This self identification that the politicizing of the process is only for the worse, acts as a huge
plus to the selection.

2.2.3 Criticism

However, as all things go, this process is also not without its own fair share of criticism.
There are a number of authors who argue that this method of selection through merit which
cannot be quantified encourages selectors to choose people in their own image: generally,
white males with similar educational backgrounds. Instead, they say, each post should go to
the candidate who would be of greatest benefit to the judiciary.68 At the same time, there is
also a call for the legitimisation of the process by certain scholars who claim that the senior
judiciary needs to be selected by the quorum of nine people three senior judges, three

66
Id.
67
See Twenty Fifth report of Select Committee on the Constitution on Judicial Appointments, House of Lords
We agree that the Lord Chancellor should continue to have a limited role in the appointment of individual
members of the judiciary: an increased role would risk politicising the process. However, we consider that the
Lord Chancellor must retain responsibility and be accountable to Parliament for the overall appointments
process.
68
See Joshua Rozenberg, Current judicial appointments system is 'not fit for purpose', says report, The Guardian
http://www.theguardian.com/law/2012/mar/26/report-judicial-appointments-not-fit

24
parliamentary members and three lay people, one of whom would chair the panel.69 This is a
bid to make sure that there is no oligarchy of the judges in their selection as these scholars are
primarily only opposed to the fact that more than 21 members involved in the selection
process are judges or legal members.70 This is quite to the contrary to what is happening in
India right now with the NJAC.

2.3 India and the Intention of the Framers of the Indian Constitution

The appointments clause regarding the appointment of judiciary, which is currently

represented for the apex court by Article 124, was represented by Article 103 in the Draft
Constitution.71 Accordingly, the said article was subject to a lot of debate within the
Constituent Assembly and there were numerous amendments that were proposed and rejected
likewise in furtherance of the same. Within the construct of this sub chapter, we shall
concentrate merely on the framers intention with regards to the appointment of judiciary as
well as the primary proposals that were made preceding the Constituent Assembly Debates in
order to set the base for the forthcoming chapters.

In the context of the opinion that existed before the draft constitution was taken up for
discussion, a special committee similar to that of the Union Constitution Committee was
formed in order to consider and report on the constitution and powers of the Supreme Court.72
Accordingly, the committee was set up and they sat down to analyze the necessity and the
requirements alike for the setting up of the Supreme Court. In furtherance of their duties, the
Committee was quite vocal about the position of leaving the appointments at the discretion of
the Executive and consequently proposed two alternate procedures for the appointment of
judges.

The key members involved in these two proposed methods was the Chief Justice of India and
the President along with a panel comprising of the Chief justices of some High Courts,
members of Central legislature and some of the Law officers of the Union. 73 Accordingly, the
first method that was proposed was that the Chief Justice and the President together will

69
Id.
70
Id.
71
See generally, Constituent Assembly Debates, Book No.3 Volume VIII, 16th May 1949 to 16th June 1949
72
See B.Shiva Rao et al., The Framing of Indias Constitution - Select Documents, Volume 4- 483, Universal
Law Publishing Company, New Delhi
73
Id. at p 484

25
make a nomination, which would then have to be approved by at least seven out of eleven
persons on the aforementioned panel. The second was proposed in a manner that was the
reverse of the previous method, wherein the panel would put forward 3 names, out of which
the final choice would then lay in the hands of the President and the Chief Justice.74
Additionally, the panel was set up to change every 10 years in order to maintain the
independence of the judiciary.

These proposals were made by the Committee primarily in view of getting a independent
functioning of the judiciary without an open executive discretion being given. By giving the
Chief Justice and the President equal and supreme powers with regard to the provision
relating to the appointment of judges, the committee showed that it intended to make sure that
the voice of the judiciary was not only to be heard by the passing ear but also give a
recognition and strength behind that voice. This method could be seen to be in fulfilment of
the doctrine of checks and balances wherein there is no explicit interference, but there are
necessary checks and balances that have been setup in furtherance of the same.

However, quite to the contrary, the Constitutional Advisor in the Committee, B.N.Rau would
only take up the recommendations regarding other provisions and with regards to the
appointment, he would propose that the appointment was to be made by the President with
the approval of at least 2/3rd of the Council of State. The Council of State was preferred in
order to make sure that the decisions were not made along party lines.75 The council of State
would include the Chief Justice of India amongst its members for this purpose and this was
considered to be a satisfactory substitute for the panel recommended by the said
Committee. Despite this, thankfully, the Union Constitution Committee would reject this
change and propose a provision that is very similar to the provision that is in our hands at the
moment. Accordingly, the appointment would be made by the President after consulting
with the Chief justice and such other judges of the Supreme Court, as also such judges of the
High Court as may be necessary for the purpose76

The clause was therefore brought up for discussion on 24th May, 1949 in the Constituent
Assembly.77 Accordingly, a number of proposals and counter proposals were made by the
members and in accordance with which the debate proceeded.

74
Id.
75
Id. at p 485
76
Id. at p 486
77
See Supra note 71

26
Prof. K.T. Shah78 proposed a few changes in the draft constitution that was simple but still
relevant to note with regards to the criterion set up with regards to the judiciary itself. He
proposed that the judges need to be approved by the Council of States and not the joint
session accordingly in order to divest the powers of the President with regards to such
appointment. Also, he made a proposal that the independence of judiciary would be dealt
with properly only on the occasion of the appointments being for the lifetime of the judiciary
like the case of U.K or U.S.A in order to maintain any lack of political ambitions and to make
sure that they do not get greedy. However, the same was rejected by the parliament on
account that the same would cause hegemony in the judiciary at its topmost level and that it
would not suit the Indian Context. However, Shri R.K.Sidhwa79, countering the argument
made by Prof. K.T. Shah regarding the Council of States being involved, would say that the
allowing of the Council of States to vote will be creating more problems than it solves
because of reasons like canvassing and chaotic election process that may result from the
same. He based this on the belief that the Prime Minister would act, not in any way that
would amount to a breach of faith and even if he so did, the legislative assembly would be
there to check that decision which is not the case with the Council of States.

Shri Biswanath Das made some very particularly relevant arguments during the course of his
speech in the Constituent Assembly. He opposed the idea presented by the Assembly and
Prof. K.T. Shah when he said that the process of election of judges must be shunned away
for good80 He was wary of the fact that the Constituent Assembly was bringing in changes
which it did not want to, originally itself, thereby making the same as very problematic
principle to import.

While reading the Constituent Assembly Debates related to any Article of our Constitution,
much importance is accorded to the opinion of the Honourable Dr. B.R. Ambedkar who was
one of most important members that were involved in the process of drafting of our
constitution.. According to him, with regards to the issue of who makes the appointment, he
was of the opinion that it should neither be vested solely in the hands of the President nor
should it be vested with the Legislature to approve it, as it would lead to political pressure
and party considerations81 Therefore, the route of the constitution that lays down a path
through the middle would be a better solution to deal with the same and he so believed that

78
Id. at p 234
79
Id. at p 248
80
Id. at p 249
81
Id. at p 258

27
the provision that mandates that there should be consultation of persons who are ex
hypothesi, well qualified to give proper advice in matters of this sort82, was key to the
provision in the instant case wherein the consultation process so laid down, was according to
him, sufficient enough to deal with the cases accordingly.

Secondly, he felt that the term concurrence should not be used in the Articles relating to the
appointment of judges because he believed that to allow for such a provision would mean that
it was a dangerous proposition.83 He said so because of the fact that he believed that,
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 day84 Thus concluding that the
Chief Justice can merely be consulted and not be given powers that were any great than what
is present.

Resultantly, the existing mode of appointment of judges, in accordance with the original
constitution was that, the President would make the appointment of the judges and the Chief
Justice, as a lone person, would be the beacon responsible for rendering such advice to the
President but the same cannot be said to be binding on the President.

Using these opinions, would be key to the identification of the process of appointments and
the problems with the process of appointments in the forthcoming discussions and these
opinions will therefore allow us to understand the points so raised, from a different
perspective and also from the perspective of the Framers of our Constitution which increases
the value of such opinions.

82
Id.
83
Id. at p 259
84
Id.

28
 CHAPTER III

THE NJAC ITS EMERGENCE AND THE FLAWS A MICROCOSM OF THE

REPRESENTATIONS BEFORE AND AGAINST THE COLLEGIUM

Through the course of this chapter, we shall attempt to take a look at the system of
appointment of judiciary post the taking up of the Constitution in the year 1950. Over the past
years, a number of attempts have been made in furtherance of trying to make the judiciary a
more efficient and functional body that can make a difference when so required. All of these
were made and proposed as separate implementations that would then run as a corollary to
the main method of appointment of judges. Some of these recommendations would have been
made as an improvement on the then existing model of appointment, whether it be before the
Collegium system was introduced for the appointment of the judges. This is taken forward in
such a way by the researcher so as to track the route taken by the legislature and executive
with regard to the appointment of judges and accordingly take the positive aspects around
these recommendations and try to incorporate the same in the forthcoming chapters as such.
Towards the end of this chapter, the researcher shall also discuss about the National Judicial
Appointments Commission, its provisions and as to what it proposes to do particularly in
order to understand as to why all these methods that have been proposed should not be
accepted and the Collegium must be upheld as validated.

3.1 Reports and Bills

3.1.1 Reports

3.1.1.A. 14th Report of the Law Commission of India, 1958

The 14th report of the law commission of India that is titled the reform of judicial
administration was drafted and presented by the famous M.C.Setalvad and in this particular
report, for the first time since the drafting of the constitution the proposals were made in
furtherance of the idea to make some changes in the method of appointment of judges. In the
report, in short, it was observed that the appointment of judiciary was obviously one of the

29
most important procedures that were related to the appointment of the judges.85 In
furtherance of the same, the report observed that, allowing the executive a supreme position
over the judicial appointments has led to the appointments that are made on communal and
regional consideration86 and believed that in spite of calling ourselves a secular state, there
blatantly existed a system of appointments that is based on such divisive politics and it was
therefore proposed that such a system of appointments made on the basis of the President,
consulting with the Chief Justice was open to influence of the executive and was therefore
needed to be changed. Added to this, it was also mentioned in the report that, the findings of
the report revealed that, the mode of following seniority in the appointment of judges was a
fallacy to be considered as the only option available which meant that the those younger
individuals who were more capable will be left out. . The report suggested to reconsider this
position and postulated that the position should be such that, a person, irrespective of his
seniority would have to be selected, solely on the basis of merit and his ability to render
quality judgments and also ability to manage the judicial affairs when holding a judicial seat
in order to make the system more efficient and effective and felt that too much emphasis
has been placed on the need for judicial experience87 to be appointed to the Supreme Court
and therefore proposed a change in the then existing status quo. With regards to the same it
was also stated that the selection on consideration of any credentials other than merit would
have far reaching repercussions and will not allow for the proper administration of justice.88
Additionally he was of the opinion that the concurrence89 of the Chief Justice was to be
required and not the consultation process and thereby strengthening the position of the
judiciary in terms of the appointment for the judicial vacancy in order to make sure that the
system is self sustained and is also functional. However the changes so proposed were not
accepted and this paved way for a rigid system that needs to be refurnished in the times that
were to come, but this will always remain one of the most important steps that will be taken
to establish the argument against the NJAC.

85
Fourteenth Report of the Law Commission of India, On Reform of Judicial Administration, 1958 at p.33
86
Id. at p 34
87
Id. at p 36
88
Id. at p 70
89
Id. at p 39

30
3.1.1.B. 80th report of the Law Commission of India

The 80th report of the Law Commission of India, 1979 was on the topic of Appointment of
Judges and it was tabled by eminent members of the judicial community that included
Justice H.R.Khanna and Prof. P.M.Bakshi. It was made in an attempt to make a study in
depth and to suggest improvements on the method of appointment of judges accordingly. It
was felt collectively by the report that the justice must be done, as the judicial oath has
itwithout fear or favouras the citizens must have the assurance of equal treatment under
the laws90

Accordingly, the report laid down a number of suggestions in furtherance of the bid to
improve upon the existing system of judicial appointments and accordingly, they proposed
that there was a need to consider the lack of political establishment links criterion
particularly, because there was a need to ensure that only persons who enjoy the highest
reputation and capabilities91were able to get into the higher echelons of the judicial system.
In times where such person of seniority is being bypassed, particularly in the case of the
appointment of judges in the High Courts, it was recommended that a panel consisting of the
Chief Justice and the 4 senior most members were to be constituted and accordingly, it was
said that this panel would then decide on whether such a case of taking of a person over the
seniority could be allowed accordingly.92 This was because, on the contrary to the previous
Setalvad report, this Commission believed that the principle of seniority was key to the office
of the office of the Chief Justice. It can be said that the roots of the Collegium system were
laid down in the report that was so given under this particular law commission this was
because the Commission recommended that the Chief Justice when recommending the name
for the High Court judge to the Chief Minister as was existing, the same has to be done in
accordance with the consultation that the Chief Justice makes with two of his senior most
colleagues and accordingly make a decision for the recommendation of the candidate by
stating the arguments so made by each of such member in writing.93 In the case of the
Supreme Court judge being selected, the person of only the most efficient and having the best
legal acumen in the country needs to be elevated as per the recommendations and such
recommendation must be made by the Chief Justice of India in consultation of three of his

90
Eightieth Report of the Law Commission of India, On Method of Appointment of Judges, 1979 at p 4 Para
2.2
91
Id. at p 29 para 7.3
92
Id. at p 27 para 6.29
93
Id. at p 32 para 3

31
senior most colleagues and accordingly make a decision by recording each of their
opinions.94 Along with these criterion, some other criterion have had passing mentions like
the need to provide the past 3 years of income tax returns by such candidate 95 and also the
need to be divested of all political relations.96

All these can be kept into consideration for the effect of the forthcoming chapters with
regards to the appointment of judges.

3.1.1.C. 121st Report of the Law Commission of India

It can be said quite confidently that it is under this particular report of the Law Commission
that the very system of the origin of the Judicial Commission came ahead as a
recommendation as a formal recommendation. Prior to this there were merely mentions of the
same, however, in the instant case, the report would make the step forward in the
recommendations so made by the Commission itself. Accordingly, the commission would
state that the successful working of a parliamentary democracy under a written constitution
with a bill of rights, presupposes the judiciary is independent97 Particularly, the commission
also recognized that the judiciary and the independence of the judiciary was the foremost
beacon of the constitution and would therefore mean that the same cannot be properly
maintained unless the appointment process is refined.

In para 7.7, the Commission for the first time recommends the formation of a body for the
appointment of the judges and the body shall be named as the National Judicial Service
Commission and says that such a commission would be made on the basis of the
participatory model that would include the opinion of the executive as well and would
consist, according to para 7.10, the Chief Justice of India as the chairman, with three senior
most judges, the preceding Chief Justice of India, the Minister of law and justice and 3 chief
justice of the High Courts of the different states selected on the basis of seniority, the
Attorney General of India and also a person of outstanding legal acumen. Accordingly, this
commission would consist of 11 members and their deliberations would result in the
recommendations so made by the commission itself. However, the same commission in times
when the High Court judges are to be selected, are to consult with the Chief Justice of that

94
Id. at p 35 para 32
95
Id. at p 32 para 6
96
Id. at p 29 para 7.4
97
One hundred and Twenty First Report of the Law Commission of India, on a New Forum for Judicial
Appointments, July 1987 at p 5 Para 1.17

32
High Court and the Chief Minister of that State in which it is situated in, according to para
7.11 in order to arrive at a sufficient conclusion with regards to the appointment of judges
itself.

The Criterion presented to the Commission for the selection of the Supreme Court and the
High Court Judges are as follows:

1. Deep and abiding faith in the constitutional process and constitutional philosophy
2. Legal acumen and ability to deal with complex questions of law98
3. A man of stature, personality, reputation and unquestioned integrity and good
character
4. Scale of awareness of the perceived needs of the society99

Although these criterions could be said that they are hardly tangible criterion, it would serve
as a scale of measurement of the eligibility of the candidate and it is to note that this was for
the first time that the system was so designed as to set down certain or at least recommend
some changes to the existing system of selection or appointment of the candidates.

3.1.2 Bills

3.1.2.A. 67th Constitutional Amendment Bill

This particular Bill is important primarily because of the fact that it proposed the creation of
a National Judicial Commission composed of serving judges headed by the CJI. This
particular Bill could be seen as the one that took forward the recommendations from the
preceding Law Commission report that we had analyzed for the purpose of the study at hand.
Accordingly, it provided for the creation of the National Judicial Commission, but the
composition was different from that of the one proposed by the preceding Law Commission.
For the purpose of this Bill, it was proposed that the composition of the same in case of
selection of the Supreme Court Judges would be the Chief Justice and two of the senior most
colleagues of him and for the High Court judges would be the Chief Justice of India, two of

98
Refer Ch.IV
99
Supra note 71 at p 43 para 7.13

33
the senior most colleagues, the Chief Minister, Chief Justice of the relevant High Court along
with his colleagues to make the decision.

This Bill tabled in the year 1990 but would not become an act, but would be important to note
because of the fact that the bill would be a composition of a Judicial Commission that was
solely based on the membership of the judicial members itself with the exception of the Chief
Minister which shows the intent of such legislature which over the years has performed a
massive U-turn and made a decision to derogate the independence of judiciary which it
rooted for by itself.

All the Acts and Bills that were made following this particular bill were proposed reforms
that were made after the institution and functioning of the Collegium system and therefore
would work as a corollary to the same system. Nevertheless, for the purpose of this chapter, it
would be important to consider these Bills to look at the attempts made by the legislature to
change or introduce reforms into the concept of judicial appointments.

3.2 Judiciary and the Debate on the Appointment of Judges

The Course of this sub topic will revolve around the various judgments in which the Supreme
Court has given its own interpretation with regard to the Appointment of Judges and the
mode of Appointment of Judges. The cases have been discussed in brief, with consideration
given only to the relevant provisions in order to enable the reader to understand the position
of the Judiciary as it has evolved over time.

3.2.1 Shamsher Singh Case100

A 7 judge Constitution Bench of the Supreme Court that was headed by Justice A.N. Ray
provided a key factor regarding the judiciarys interpretation of the term relating to the
appointment of judges. Accordingly, it was held by the Court in this case that,

The independence of the Judiciary, which is a cardinal principle of the Constitution and has
been relied on to justify the deviation, is guarded by the relevant Article making consultation
with the Chief Justice of India obligatory. In all conceivable cases consultation with that
highest dignitary of Indian-. Justice will and should be accepted by the Government of India

100
Shamsher Singh v. State of Punjab , 1974( 2) SCC 831

34
and the Court will have an opportunity to examine if any other extraneous, circumstances
have entered into the verdict of the Minister, if he departs from the counsel given by the Chief
Justice of India. In practice the last word in such a sensitive subject must belong to the Chief
Justice of India, the rejection of his advice being ordinarily regarded as, prompted by oblique
considerations vitiating the order.101

Basically, the point that is made by the Supreme Court in this case is that, the independence
of judiciary is key to the constitutional framework of the nation and accordingly, the
Consultation process with the Chief Justice of India would be considered as obligatory and it
holds much value in the case of decision making processes of the appointment of judges. This
is very important and relevant the research at hand because of the fact that the judiciary has
for now interpreted the judiciarys independence in terms of the advise that is tendered by the
Chief Justice to the President in cases of appointment. However, forthcoming cases would
signal certain changes in the same scenario.

3.2.2 S.P. Gupta Case102

The S.P.Gupta case was taken up by a 5 judge bench of the Supreme Court and thereby a few
postulates was laid down by the Supreme Court accordingly which were considered to be
very controversial. This case is otherwise referred to as the First Judges Case.

In this case, several writ petitions were filed in the various high courts under Article 226 by
several lawyers. All these were transferred to the Supreme Court for disposal. Although the
chief aspect that was dealt with by the court was with regards to the transfer of judges in this
case, this case would also talk about the appointment of judges and the opinion on the same
process which is going to be the point of our study.

The primary question faced by the Supreme Court was as to whether the process of
appointment of judges, would involve within itself, the concept of primacy of the opinion
given by the person who is participating in that particular process?

The Supreme Court in the opinion of the researcher took a retrograde step in this particular
judgment because of the fact that the majority opinion in this case held that the opinion of the

101
Id. at p 882 Para 149
102
S.P. Gupta v. President of India and Ors., 1981 Suppl. (1) SCC 87

35
Chief Justice of India and the Chief Justice of the High Court as the case maybe, was merely
consultative and not any more than that. Particularly, it was held that the power of
appointment would then vest solely with the Central Government and not the Judiciary
itself.103 Accordingly, this was said to be a literal interpretation of the word consultation by
the judiciary and also that such literal meanings being taken into consideration would mean
that the executive primacy was being rooted for by the Court in this regard of the
appointment of the judges as such. With Reference to Article 124(2) and Article 217(1) it was
to be so held that the Supreme Court would allow only the mere consultation power to the
Chief Justice of India and the Chief Justice of the High Court as the case may be.

In Para 29, Page 226 of the Judgment, Justice P.N.Bhagwati states that,

It is obvious on a plain reading of clause (2) of Article 124 that it is the President, which in
effect and substance means the Central Government, which is empowered by the Constitution
to appoint Judges of the Supreme Court.

And in the same paragraph he again is quoted as stating that,

It is clear on a plain reading of these two articles that the Chief Justice of India, the Chief
Justice of the High court, and such other Judges of the High Courts and of the Supreme
Court as the Central Government may deem it necessary to consult, are merely constitutional
functionaries having a consultative role and the power of appointment resides solely and
exclusively in the Central Government.

These two aforementioned paragraphs can be used to satisfactorily sum up the arguments of
the Supreme Court. In Simple terms, it was said that the participation of the judicial elements
in the case of appointment of judges was merely consultative and not binding or having any
particular value that binds the judgment. The Ultimate power therefore lies in the hands of the
Central Government. This judgment thus gave almost near unfettered power to the legislature
and the executive which in turn would create more problems than it solves

103
Id.

36
3.2.3 Subhash Sharma Case104

Subhash Sharma case formed the essential linkage between two significant cases that dealt
with the concept of judicial independence and the interpretation of the judiciary with regard
to the same as linked with the appointment of the judges. A 3 judge bench headed by Chief
Justice Misra set up an important perspective that lay behind the concept of the judicial
independence as such. The case was set up because of the Public Interest Litigations that
were filed under Article 32 of the Constitution of India, one by the advocate practicing in the
court, Subhash Sharma, the second by the Supreme Court Advocates on Record Association
and the last by the Honorary Secretary of the Bombay Bar Association with regards to the
back logs in the filling up of vacancies.

In this case, it was held that the case of S.P. Gupta and the rationale from the case has to be
dealt with by setting up a larger bench as it was of constitutional importance. It was
emphasised that an independent, non-political judiciary was key to sustaining a democratic
political system that has been adopted in India.

The Supreme Court in Para 31 Page 590 gave its opinion by saying that,

Consistent with the constitutional purpose and process it becomes imperative that the role
of the institution of the Chief Justice of India be recognised as of crucial importance in the
matter of appointments to the Supreme Court and the High Court of the States. We are of the
view that this aspect dealt with in Gupta's case requires re-consideration by a larger bench.

Also, in the due course of the judgment, it was also stated that the consultation of the Chief
Justice is something that has been incorporated in the constitution and such a provision
cannot be derogated or taken away, merely by the usage of the linguistic interpretations.105

Similarly, in the case it was consequently held that

Constitutional phraseology of "consultation" has to be understood and expounded

consistent with and to promote this constitutional spirit. These implications are, indeed, vital.
The constitutional values cannot be whittled down by calling the appointments of judges as
an executive act. The appointment is rather the result of collective, constitutional process. It

104
Subhash Sharma & Ors. v. Union of India, 1991(1) Suppl. SCC 574
105
Id. at p 591 Para 31

37
is a participatory constitutional function. It is, perhaps, inappropriate to refer to any `power'
or `right' to appoint judges106

There are two paragraphs in the judgment that are very crucial to consideration of the
following Second Judges Case.

Para 46 provided for the reconsideration of the S.P.Gupta cae by stating that, the correctness
of the opinion in S.P.Gupta case relating to the status and importance of consultation, the
primacy of the position the Chief Justice of India and the view that the fixation of Judge
strength is not justiciable and should be considered by a larger bench.

In Para 50, the Supreme Court creates a particularly important reference when it was
summing up the case as such.

Para 50 says, We are aware of the position that the setting up of the National Judicial
Commission through a Constitutional Amendment is in contemplation. In the event of the
amendment being carried out and a National Judicial Commission being set up, the
correctness of the ratio in S.P.Gupta case of the status of the Chief Justice of India may not
be necessary to be examined in view of the fact that by amendment the Chief Justice of India
would become the Chairman of the Commission. In case the Commission is not constituted,
the two questions indicated above which are of vital importance to the efficient functioning of
the judicial system in the country require consideration and there is an element of immediacy
in the matter. We therefore suggest that the writ petitionbe taken up for hearing at an early
date and preferably before the end of this year. We hope and trust that the Supreme Court
Advocates-on-Record-Association would continue to evince interest in the matter but if our
expectations are belied, this being in the nature of a public interest litigation, someone
interested in the restitution of the issues would be brought on record to effectively continue
the proceeding and assist the court.

In brief, the important provision that would arise out of the aforementioned paragraph is that
firstly, the Court feels that, in case of such an amendment as the setting up of a commission
under the Chief Justice of India then the matter of a Collegium system would never even be
have to dealt with and the second is that, the second is that, through the last few lines, the
Court has effectively set up the Second Judges case by asking any person who is interested
to file a PIL in furtherance of which the case would ensue, thereby indirectly invoking

106
Id. at p 642

38
interest in the individuals to go and seek for the case, which would turn out to be one of the
most significant cases.

Accordingly, to sum up the arguments made in this case, it would be sufficient to say that,
this case through its interpretation by the apex court was able to set up a system of
constitutional perspective based on which the forthcoming cases were to be dealt with
accordingly.

3.2.4 Supreme Court Advocates-on-Record Association Case107

This case was decided on by a Nine Judge Bench of the Supreme Court 108 and the same was
created as a consequence of the previous case which recommended the facts and
interpretation in the S.P. Gupta case to be taken up by a larger bench due to its importance.
The most important mandate that lay behind this judgment was the necessity of saving the
judiciary from the clutches of the executive after the S.P. Gupta case had rooted in the
concept of executive supremacy in the mode of appointment of judges. This case is otherwise
referred to as the Second Judges Case.

Justice Verma, giving the majority opinion, sought to interpret the constitutional provisions
with regards to the foundational and basic structure of our constitution.109 And therefore the
majority opinion chose to give a wider meaning to the provisions that are related to the
judiciary and thereby the word consultation in the Article 217(1) was given a wider
interpretation by the judges in this case.

This case effectively overruled the criterion that was placed in the S.P. Gupta case and held in
Para 451 Page 693, very crucially that,

The primary aim must be to reach an agreed decision taking into account the views of all
the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as
earlier stated, is best suited to know the worth of the appointee. No question of primacy
would arise when the decision is reached in this manner by consensus, without any difference
of opinion. However, if conflicting opinions emerge at the end of the process, then only the

107
Supreme Court Advocates-on-Record Association v. Union of India , (1993) 4 SCC 441
108
Id.
109
Id. at p 431

39
question of giving primacy to the opinion of any of the consultees arises. For reason
indicated earlier, primacy to the executive is negatived by the historical change and the
nature of functions required to be performed by each. The primacy must, therefore, lie in the
final opinion of the Chief Justice of India, unless for very good reasons known to the
executive and disclosed to the Chief Justice of India, that appointment is not considered to be
suitable.

The primary aim behind this particular excerpt is to signify that the judiciary as represented
by the Chief Justice, possesses the knowhow of the judicial framework and the constitutional
proceedings and therefore it is to be seen that the judiciary needs to get some kind of primacy
accorded to its opinion so that the same can be incorporated as a significant portion involved
in the process of appointment of judges. Particularly, it is imperative to note that on what
occasion the primacy of the judicial opinion occurs. It is to be seen that such instance of
primacy is said to occur only when the consensus is not able to be reached between the
executive and the judiciary and until then, it is to be said that, it is merely a co-equal status
being accorded to both the parties as such.

Para 438 of the judgement would also be accepting of the same opinion.

Para 438 in Page 688 states that,

The debate on primacy is intended to determine, who amongst the constitutional

functionaries involved in the integrated process of appointments is best equipped to
discharge the greater burden attached to the role of primacy, of making the proper choice;
and this debate is not to determine who between them is entitled to greater importance or is
to take the winner's prize at the end of the debate. The task before us has to be performed
with this perception.

Now, this case saw the culmination of the judicial opinion to give breath to a new system of
the judiciary that is to be responsible for the appointment of the judges.

Accordingly, in Para 456 in Page 695, it had been stated that,

it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this
context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively,
that is to say, after taking into account the views of his senior colleagues who are required to
be consulted by him for the formation of his opinion

40
This particular statement set up the new system of the judicature accordingly because of the
fact that now, up until this point, the consultation of the Chief Justice of India was thought to
be only with the Chief Justice himself except for the cases of the law commission report. But
now, it was held by the apex court categorically that the Chief Justice when making
recommendation would have to consult with the senior colleagues of the same court.
Likewise in the case of the appointment of judges to the High Court, the Chief justice would
have to consult with those judges in the Supreme Court that are conversant with the affairs of
the concerned High Court and followed by the getting views of the senior judges of the High
Court.110

Particularly, this case was so dealt with in accordance with the principle of taking away the
system of executive supremacy and to bring out a message that was sans the political
influence in the appointment of the judges and the initiation of the proposal also was to made
by the Chief Justice of India for the Supreme Court judges and the Chief Justice of the
respective High Courts for the purpose of the High Courts.

3.2.5 In Re Presidential Reference No.1 of 1998111

The ruling of the Supreme Court in the previous instances was made and elaborated further in
this particular case and it was resultantly said to give rise to the Collegium System as fully
operational. A nine judge bench of the Supreme Court112 referred to the case on the reference
made by the President in the exercise of his power under Article 143(1)113 to study the
postulates laid down as under the previous case and the previous circumstances as such in
order to arrive at a conclusion.

Accordingly, the Court considered the different opinions and clarified that the opinion of the
Chief Justice of India is not solely his alone, but of the opinion of the judiciary which means
that there was a need for a plurality in its formation and by this the court means that the
opinion of the Chief Justice is not his own personal opinion but the opinion of such other
members as is required for the same. With regards to the same it was so held that, the Chief

110
Id. at p 425
111
In Re Presidential Reference No.1 of 1998, (1998) 7 SCC 739
112
Id.
113
Article 143(1), Constitution of India, 1950 - If at any time it appears to the President that a question of law or
fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and
the Court may, after such hearing as it thinks fit, report to the President its opinion thereon

41
Justice of India to form his opinion in regard to a person to be recommended for the office of
the High Court would have to be in consultation with his two senior most judges and along
with that, the views of the Chief Justice of the High Court, the views of the other High Court
judges and the views of the Supreme Court judges who are conversant with the affairs of the
concerned High Court are to be taken into consideration in writing and conveyed to the
Government of India along with the recommendation.114

Additionally it was also said that the Collegium would make its recommendation on the basis
of consensus but in the case of difference of opinion, no one would be appointed as such in
the case of the Chief Justice of India dissenting to it and also if two or more members of the
Collegium dissent then the Chief Justice of India should not persist on such
recommendation.115

Similarly, it is to be understood that the Chief Justice when making his opinion on the basis o
such group consultation, there are times when there is a likelihood of arbitrariness as such
and in view of the same it has been said that, the judicial review is available at two instances.
The first instance is when the appointment is recommended to be made to the Supreme Court
and under such instance, it could be said that the judicial review exists when such
recommendation so made is not the decision of the Chief Justice of India and his senior most
colleagues. Similarly, in the case of appointment of High Court Judges it is said that the
option of judicial review is available in cases where the senior most Supreme Court judge
who is conversant with the affairs of the State in which the High Court is situated and
accordingly, the appointee is said to be disqualified also when the candidate has been picked
on the basis of non-legitimate conditions or grounds thereby making it a subject of judicial
review.116 The Court therefore made it a mandate and thereby also a part of the basic
structure of the constitution by the case at hand thereby making it difficult to amend for the
legislature.

Thus the importance of this case as the Third Judges cases was to specifically lay down and
consolidate the idea of the Collegium system and to consequently allow such a system to
function. This series of cases would be the reason behind the implementation of the NJAC
bill because of the fact that the option of having a commission for appointment of judges was

114
See M.P.Jain, Indian Constitutional Law, 584 (7th Edition, 2014) LexisNexis, Haryana
115
See D.D.Basu, Shorter Constitution of India, Volume 1 757 (14th Edition, 2014) LexisNexis, Haryana
116
Id.

42
forgotten and left behind ever since the framers debated about the same and also restricted to
opinions in certain law commission reports as that we have seen.

Following this the researcher is going to present the provisions as presented in the National
Judicial Appointments Commission Act of 2014 and also understand as to what the apex
court felt about the same Act that was passed.

3.3 The National Judicial Appointments Commission Act, 2014 and The Constitution
(Ninety-Ninth Amendment) Act, 2014

The formation of the National Judicial Appointments Commission was the contemporary
emergence that had formulated for years as against the existing system of appointment of
judges. Accordingly, the National Judicial Appointments Commission was attempted to be
brought in through a Constitutional Amendment, the Constitution (One Hundred and Twenty
First Amendment) Act of 2014 and an ordinary legislation which is the National Judicial
Appointments Commission Act of 2014.

Both of these, were notified by the Gazette on the same day, the day being the 31 st of
December, 2014.

While presenting the Bill for discussion in front of the Lok Sabha, stating as reasons for the
formation of such a Commission, the then Minister of Communications and Information
Technology and Minister of Law and Justice, Shri Ravi Shankar Prasad, said that

There must be a healthy blend, namely, the President must not have unbridled powers and
the Chief Justice also must not have unbridled powers; there must be a healthy co-ordination
and consultation..117

He was worried that the role of the executive which the constitution intended to be at a very
high pedestal would be severely limited by following the Collegium system of appointment
of the members of the judiciary. Particularly, he felt that, as a result of the Collegium, the
quality of the judges that came through were severely flawed and also not well versed with
the law and therefore, the Collegium must therefore be scrapped for good. To him, the
sanctity of the parliament118 was equally important and therefore there was a need for

117
See Lok Sabha Debates on The Constitution ( One Hundred and Twenty First Amendment) Bill, 2014 and
The National Judicial Appointments Commission Bill, 2014 page 9
118
Id. at p 12

43
proper accountability within the system of the judiciary. Accordingly, he said that the process
of appointments was to be a joint participatory exercise and proposed the formation of the
Commission which we shall see later. However, some of the points he raised was that in the
selection of the judges, from High Court to the Supreme Court, apart from seniority, there is
an extent of ability and merit that is needed to be considered along with the same.119

One of the main points that was instituted along with the formation of the NJAC was that, if
any two members of the Commission are against the selection of a candidate then the same
can be counted as a veto and no further discussion would thereby ensue. However, Shri.
Veerappa Moily tried to point out the flaw in creating such a provision because he felt that,

That is the veto power. This is what the Judiciary is worried about. It may end up with no
decision at all. It may be impractical or this may give rise to a lot of conflicts between the
Judiciary and the Executive.120

He argued that there would be no efficiency within the system if such a veto power were to
be allowed to function within the constructs of the System.

Similarly, with regard to the provision for the eminent persons, as will be seen, he felt that the
lack of any guidelines for the selection of such eminent persons would in turn result in chaos
and also an improper step which would lead to a situation where anybody can be eminent
person121

Quite significantly he also wanted to reform the system from the bottom up and proposed for
the creation of a All India Judicial Service which would be on par with other civil service
examinations and start cleaning up the mess from the bottom as he felt that, the system itself
is totally lacking here.122 The same was also supported by Mr. Thambidurai who said that
bringing in such a Service will be a good reform.123

These opinions were crucial to be noted with regards to the discussion on the National
Judicial Appointments Commission primarily because of the fact that, despite being of
different parties and the ideas also being different, the legislature had in it opinion a meeting
of minds when it felt that the time was up for the Collegium system and that the Collegium
system must go and therefore a substitute was required. The opinion of Shri. Veerappa Moily

119
Id. at p 16
120
Id. at p 23
121
Id. at p 24
122
Id. at p 30
123
Id. at p 38

44
in particular however, is in the opinion of the researcher of much significance because of the
fact that it was only his line of argument that was taken up by the apex court in a later case in
order to strike down the NJAC and the proposals to reform the system were also made in
furtherance of the same opinion.

General consensus was that, there was an inherent need for reform in the system itself, as
such.

3.3.1 The Provisions of the Act

Firstly, there is a need to examine the provisions of the Constitution (One Hundred and
Twenty First Amendment) Act of 2014 which later became an Act, though now has been
repealed. Consequently, a number of proposals were made to shake up the existing
constitutional procedure of appointment of judges.

In the statement of Objects and reasons, it was stated as an object that the same amendment
was that,

The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme
Court and High Courts, enables participation of judiciary, executive and eminent persons
and ensures greater transparency, accountability and objectivity in the appointment of the
Judges in the Supreme Court and High Courts.124

This could be seen as making way for the amendment to be made with regards to the change
in the way of appointment of judges.

The First provision that it paved way for was the substitution made in the Article 124(2)
wherein it was now stated that the President would make such appointments, on the
recommendation of the National Judicial Appointments Commission as in Article 124A so
inserted.

Article 124A said that, the composition of the Commission would be such that, the Chief
Justice of India would be the ex officio chairman, then the two other senior judges of the
supreme court next to the Chief Justice, the Union minister of Law and Justice and also two
eminent persons as to be nominated by the Committee consisting of the Prime Minister, Chief
Justice of India and the Leader of the Opposition in the House of People and in their absence
the leader of the largest opposition party in the House of People. It was also provided that one

124
The Constitution (One hundred and twenty first Amendment) Act, 2014

45
of the two eminent persons was to be nominated from amongst the persons belonging to the
SC/ST/OBC/Minorities/Women and both of them would be selected for a term of 3 years as
such.125 The functions of the Commission thereby being to appoint, select and promote such
judges as the case may be was provided by Article 124B while 124C126 provided one of the
most controversial provisions which said that the Parliament by law may regulate the
procedure as and when it pleases to, which basically means that, the ultimate power is vested
in the Parliament as the chief authority and they are now completely in control of whatever
the proceedings that may take place and one day might also choose to change the
composition and mode of appointment such that, the judiciary is completely left out, meaning
that the same was attempted to be inserted by the parliament through the backdoor
mechanism which is highly problematic.

Similar amendments were proposed to the state judicature and the procedures thereupon to
include within itself the NJAC vide 124A.

The researcher now places the spotlight on the provisions of the National Judicial
Appointments Commission Act of 2014 as was passed by the Parliament. Section 4 of the
aforementioned Act would vest in the hands of the Central Government, the power to
intimate the vacancies in the judicial posts, be it by removal or upon the retirement or upon
the death of any judge thereby meaning that, the power to intimate such vacancies, which was
accorded with the Chief Justice of India has now been derogated by the Section 4 of the said
Act.

Section 5 of the said Act would state that, the Commission would recommend the senior most
judge of the Supreme Court as the Chief Justice of India but for the appointment of judges to
the Supreme Court from the High Court, the basis will be given, apart from the seniority
criterion to the Ability, merit and any other such suitable criterion as may be necessary127
The veto power is also mentioned in the Section 5 of the said Act, wherein it states that, the
recommendation cannot occur if any two members are not in agreement with the name that
has been proposed.

125
Id. 3 (India)
126
Id. 3 (India)
127
National Judicial Appointments Commission Act of 2014, No. 40 of 2014, 5 (India)

46
Similar provisions have been laid down with the appointment of judges to the High Court
through Section 6 of the said Act but with a few extra changes. Accordingly, Section 6(2)128
and Section 6(4)129 provides that the nomination of a person will be made on consultation
with the Chief Justice of the Concerned High Court and he in turn shall consult with two
senior most judges of the High Court and such other judges and eminent persons as may be
required for the same purpose.

Further, Section 6(7)130 states that the views of the Governor and the Chief Minister of the
State also have to be taken into consideration and accordingly, the recommendation can then
be made. By way of Section 12 of the aforementioned Act, the Commission also has the
power to make such regulations as may be necessary for the proper working of the
Commission and may also recommend such things like the criteria for the selection of the
judges and the procedure on how it is to be made and so on. However, each rule and
regulation so made would be subject to parliamentary approval as under Section 13131 of the
said Act.

What needs to be understood from the Amendment and the legislation so passed is that,
casually and cunningly, the legislature, has tried to strip away the power that was
constitutionally available with the judiciary itself and was attempting to make a huge change
in the status quo and the power relations between the organs of the government meaning that
at some point of time, the judicial independence would be no more and the same could
become violative of the basic structure of the Constitution.
This, as the research points out, would be the subject matter of scrutiny in the apex Court and
several important propositions would be thus laid down in the apex court, which would in

128
Id. 6(2) - The Commission shall seek nomination from the Chief Justice of the concerned High Court for
the purpose of recommending for appointment a person to be a Judge of that High Court.
129
Id. 6(4) - Before making any nomination under sub-section (2) or giving its views under sub-section (3),
the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such
other Judges and eminent advocates of that High Court as may be specified by regulations
130
Id. 6(7) - The Commission shall elicit in writing the views of the Governor and the Chief Minister of the
State concerned before making such recommendation in such manner as may be specified by regulations.
131
Id. 13 - Every rule and regulation made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days, which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in making any
modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the
rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be;
so, however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule or regulation.

47
turn root for a newer and better Collegium system over the currently proposed change in the
system of appointment.

3.4 The Judicial Ruling in Support of the Collegium Supreme Court Advocates-on-
Record-Association Case132

In probably the most landmark case since the time of the Keshvanand Bharti case, the
Constitution Bench of the Supreme Court considered the Amendment made to the
constitution in furtherance of the formation of the National Judicial Appointments
Commission and would consider the arguments in the case accordingly. For the purpose of
the research at hand, it is necessary to consider the opinion of the judges involved in the case
with regards to the appointment of judges and thereby have only a brief overview of the
opinion of each of the judges as the same is what is necessary for the research at hand. It was
a decision made by a 5 judge bench and the opinions were made such that, there was a 4:1
majority with Justice Chelameshwar dissenting.

3.4.1 Justice Khehar Singh

Justice Khehar was completely in support of the concept of Judicial independence and also in
favour of the Collegium system because it supports the Judicial independence better. In para
8 of the judgment he said that,

The independence of judiciary is inextricably linked and connected with the constitutional
process of appointment of judges of the higher judiciary. Independence of Judiciary is the
basic feature of our Constitution and if it means what we have discussed above, then the
Framers of the Constitution could have never intended to give this power to the executive. 133

Consequently, he would say that the attempt by the legislature was not to make any
peripheral change to the constitution but rather a substantial change would seemingly be
irreversible. Therefore he felt that there was a need to understand whether through the
amendment the power of the Parliament was so enlarged as to obliterated any or all of the
Constitutional limitations so placed and said that when so analysed the Amendment
proposed by the legislature in the instant case would fall foul to the constitutional limitations
as such.
132
Supreme Court Advocates-on-Record-Association Case v. Union of India, (WP(Civil) No.13 of 2015)
133
Id. at p 182

48
Further, quoting another judgment, Justice Khehar would state in Para 15 that,

The Constitution, according to the respondents, is not merely what it says. It is what the last
interpretation of the relevant provision of the Constitution given by the Supreme Court which
prevails as a law. The interpretation placed on the Constitution by the Court becomes part of
the Constitution and, therefore, it is open to amendment under Article 368. An interpretation
placed by the Court on any provision of the Constitution gets inbuilt in the provisions
interpreted134

By so stating, he said that the Constitutions last interpretation being the Third Judges case,
the sane would then form a part of the basic structure of the Constitution and therefore the
basic structure of the Constitution cannot be changed as it would limit the amendment powers
of the Parliament as such. Additionally, he would state that the Collegium might be a creation
of the judiciary but the same is the creation of the judiciarys interpretation of the
Constitution itself and would therefore be validated in the presence of such a system as such.

Additionally, he found a problem with the provision for two eminent persons being provided
in the Commission because of the fact that, there are more than 70 statutes that have the
eminent persons clause and out of which over 67 of them would be related to this field and
therefore the power would be arbitrary owing to the fact that there was no clear provision for
the eminent person and the same would give rise to exploitation of the provisions as such.

The most significant point that he raised was in para 85 wherein he said that,

It cannot be gainsaid that the CJI being the head of the Indian Judiciary and paterfamilias
of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding
the independence of the judiciary and he in that capacity evaluates the merit of the candidate
with regard to his/her professional attainments, legal ability etc. and offers his opinion.
Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a
superimposition test under the guise of over guarding the judiciary135

This is quite significant because Justice Khehar recognizes that the CJI is the head of the
judiciary and that there can be no power that can take away the power of the judiciary with
respect to its independence. Significantly, he laid down that if there are flaws in the
Collegium then the same can be met with and rectified on a case to case basis as such.

134
Id. at p 192
135
Id. at p 202

49
3.4.2 Justice Madan.B.Lokur
Justice Lokur had made his arguments in favour of striking down the Amendment to the
Constitution and he thereby felt that the Collegium system with its corrections was the way to
go forward with the case in point as such.

Initially itself, he believes that, the Constitution (Ninety-ninth Amendment) Act, 2014 (for
short the 99th Constitution Amendment Act) alters the basic structure of the Constitution by
introducing substantive changes in the appointment of judges to the Supreme Court and the
High Courts and rewriting Article 124(2) and Article 217(1) of the Constitution, thereby
seriously compromising the independence of the judiciary. Consequently, the 99th
Constitution Amendment Act is unconstitutional. Since the 99th Constitution Amendment Act
is unconstitutional, the National Judicial Appointments Commission Act, 2014 (for short the
NJAC Act) which is the child of the 99th Constitution Amendment Act cannot independently
survive on the statute books.136

This would thereby make his intention clear about what he feels about the Amendment that
has been proposed by the Parliament in the case at hand.

He was particularly annoyed of the fact that the Act had changed the status quo by
substituting the power of the Chief Justice to intimate any case of vacancy with that of the
Central Government would meant that there was a radical change and the same cannot be
considered as it would be a case of power of the Chief Justice being completely whittled
down virtually to a vanishing point.137 Also, he felt that this Commission would take away
the independence of the judiciary as was thought of by the framers of our Constitution to such
extent that the shared responsibility system also was being decapitated by the proposed
amendment and felt that the NJAC was no stairway to heaven and was downgrading the
power of both the Chief Justice and the President alike.138

Further, in his conclusions, he compared the opinions of Dr. Ambdedkar and the rationale
laid down in the Second Judges case and the Third Judges Case and held that the amendment
that was being proposed was taking away the constitutional authority of the Chief Justice of
India and placed it on a platter for the NJAC to exploit139

136
Id. at p 591 para 2
137
Id. at p 881 para 548
138
Id. at p 879 para 544
139
Id. at p 891 para 567

50
He thereby felt that the proposed amendment and the legislation would fall foul to the
Constitution itself and therefore the Collegium system so proposed would then be held as
valid and constitutional. To that extent he said that the present system therefore requires some
fine tuning and therefore has requested the Counsel in this case to collect suggestions and
submissions to put the case forward to make the system a transparent and better system
altogether.

3.4.3 Justice Kurian Joseph

Justice Kurian Joseph made the argument in favour of the Collegium system and wanted to
strike down the proposed Amendment as such.

Quite graphically, he held in his judgment that,

The Supreme Court belongs to the powers central of the Judiciary and the permissible
checks and balances are provided to other branches lie in the sphere of appointment. If the
alignment of tectonic plates on distribution of powers is disturbed, it will quake the
Constitution. Once the constitutional structure is shaken, democracy collapses. That is our
own painful history of the Emergency.140

He was of the opinion that the Supreme Court and the High Court as the case may be were
the watchdog of the Constitution and thereafter it is to be seen that the derogation of such
powers that were vested by the Constitution in the members of the judiciary cannot be taken
away and thereby be derogated as well. He was of the opinion that the same cannot be
allowed as democracy itself would then collapse. He said that any attempt that is made to
dilute the basic structure, however remote the possibility would be, the same has to be nipped
at the bud itself to prevent any further damage from occurring as such within the
Constitution. He felt that in case of appointment of judges, the Amendment has sought to
derogate the powers of the Constitution as in the Judiciary and therefore would mean that the
same has to be struck down as unconstitutional accordingly.

However, he did agree with Chelameshwar J. when he held that the Collegium system lacks
transparency, accountability and objectivity and therefore felt that such changes have to be
made to the existing system itself than to substitute it completely.

Quite significantly, he points out that,

140
Id. at p 921

51
I feel that it is not the trusteeship that failed, but the frailties of the trustees and the
collaborators which failed the system. To me, it is a curable situation yet. 141thereby making
his case for the Collegium system, saying that, such changes need to be made to the system as
to make it efficient in itself and the same cannot be made by taking away the powers as a
whole as it would be detrimental to the basic structure. He felt that the executive seldom
acted effectively and was usually doing activities that were based on political considerations
add therefore he felt that, the Amendment has to be struck down and consequently, the
Collegium system will have to be reformed.

3.4.4 Justice Adarsh Kumar Goel

Justice A.K.Goel provided the final opinion as the 5th judge of the Constitution Bench in this
particular case. Accordingly, he was also in favour of the Collegium system and preferred the
same over the proposed Amendment. He felt that the appointment of the judges has always
been intended to be an integral part of the basic structure of the Constitution and therefore the
constitution of such a commission should be considered to be invalid as per the provisions of
the Constitution.

He felt that, the power being given to the eminent persons that was co-equal to that of the
Chief Justice and the other judicial members of the Commission would be wholly derogatory
of the position mandated under the Constitution and the framework of the Constitution.142
Additionally, he also had a problem with Article 124C of the proposed Amendment which
gives the Parliament, the power to make such amendments to the procedure as it wishes
which means that it was an overreach by the Parliament and therefore even the Section 13 of
the said Act which gives approval power to the Parliament in case of regulations, had to be
struck down as unconstitutional if not as per the basic structure but at least under the Article
14, 19 and 21 of the Constitution of India.143

He felt that, the taking away of the independence of the judiciary was highly detrimental to
the interests of the working of the Constitution and held that the 3rd judges cases144 had to be
considered to be valid and not the proposed amendment. Therefore, he felt that the idea of
appointments would have to be made only in accordance with the provisions of the
Collegium system in furtherance of the independence of judiciary and it cannot be derogated
by any means as specified.

141
Id. at p 924
142
Id. at p 1022
143
Id. at p 1023
144
Id. at p 1014

52
As a concluding remark, he would hold that,

I am of the view that such grievances ought to be considered. It is made clear that
grievances have not been expressed The matter be listed for consideration of the surviving
issue of grievances as to working of pre existing system.145

3.4.5 Justice Chelameshwar Dissenting

Justice Chelameshwar provided the dissenting opinion in this particular case and it is quite
significant to note because of the fact that, he was the only person with the dissenting opinion
in the 5 judge bench of the Supreme Court.

With regard to the point regarding the absence of guidelines for the appointments as was
criticized by the other judges, he pointed out in para 113 that,

To contend that the AMENDMENT is destructive of the basic structure since it does not lay
down any guidelines tantamount to holding that the design of the Constitution as originally
enacted is defective146

With regard to the veto power that is being accorded as per the provisions of the said Act, he
held that, the particular provision alone would be held as violative of that of the basic
structure of the Constitution and not the Act as a whole in itself.

Moreover, the core of his argument was based on the fact that the judicial independence
would not essentially mean judicial primacy and therefore the same cannot be said to be a
valid point in order to strike down the proposed amendment as he felt that, the fiasco that was
created in some of the cases in the judiciary, would justify the participation of the members
of the civil society in the process to eliminate themaladies involved147

His arguments were solely based on targeting the failure of the Collegium system rather than
to praise the proposed system of appointment of judges as he proposed to do. Particularly, he
said that, the Collegium was a failure and there was no accountability within the Collegium
system and thus it had to be replaced.

In the last lines of his judgment, he would go one to say that,

145
Id. at p 1025
146
Id. at p 577
147
Id. at p 582

53
Only an independent and efficient judicial system can create confidence in the society which
it serves.148

Thereby, the opinion of Justice Chelameshwar could be the dissenting opinion and he
believed that in order to remedy the Collegium, the Amendment would thereby have to be
held valid and therefore be upheld but as many other such line of argument, it could be seen
that the same can be argued against by saying that the flaws of the Collegium can be
corrected if needed but given the political scenario of the Country it would not be good to
support such a system as is being proposed by the Parliament.

Therefore, it would suffice to say that he, like 4 other judges chose to strike down the
amendment and the legislation as unconstitutional and thereby lay the base for the
formulation of the Collegium 2.0 which has to be better and with greater efficiency as is
expected of the same. Also, one can say that, the Court was justified in taking whatever the
stance that they took in the instant case primarily because, as we saw in the preceding
chapter, the judiciary was only acting by taking some of the intention of the framers into
reality and also basing their argument on the basis of the same interpretation of the
Constitution itself as well as the intention specified by the framers.
The case is very significant for the fact that, it not only struck down the NJAC as created by
the parliament but also recognized that the Collegium system had its flaws in itself and felt
that such flaws can be corrected only if the problems are considered according to the merits
and dealt with accordingly. This is significant to note as we have seen in the course of this
chapter, the arguments that have been made prior to the Collegium system.

The purpose of this chapter was to solve the question as to whether the NJAC or any of the
proposals made by the legislature and the executive could be considered as a substitute to the
Collegium system, however, through research of the various judicial opinions and other allied
provisions, it can be sufficiently concluded that the research question has been answered and
that in order to ensure the judicial independence, the key would be to consider the reforms to
the Collegium and not the other forms of appointment as speculated.

148
Id. at p 583 para 121

54
 CHAPTER IV
COLLEGIUM 2.0 THE WAY FORWARD

Over the course of the years, a number of times, the different institutions of the country and
the judiciary by itself has sought for certain corrective measures to be taken with reference to
the reformation of the Collegium System and analyze as to how the same system has to be
taken forward for a better future. It has been continuously stated that the judiciary has been
given the responsibility that the high traditions and standards of the judiciary are to be
maintained by it, by selecting the persons who only deserve to the judicial posts particularly
to the subordinate judiciary.149 Particularly, it has said that starting from the case of the
subordinate judiciary, the Judiciary has to clean up the whole process that is related with the
same primarily because under the existing system, the appointments are considered to be
inefficient and at the same time, there appears no transparency or accountability in such a
system of appointments.150

Accordingly, the Supreme Court, by its order post the Supreme Court Advocates on Record
Association151, asked Ms. Pinky Anand, ASG and Mr. Arvind P. Datar, Senior Advocate to
submit a report on representation/suggestions for improving the Collegium and in furtherance
of the same, they have submitted their report accordingly and in that report, through
suggestions from various areas that are available in the Country, and a comprehensive report
was made by them. In the course of this chapter, we shall take some of the points proposed by
the both of them and attempt to create a better mode of operation of the Collegium System
itself. For that purpose, we shall have two sub divisions within this chapter with the first one
dealing with what could have been efficient changing mechanisms, but has not come into
existence and could be useful and the second one is the things that are done with the future
within the purview.

The clauses related to the appointment of the judiciary are included in the annexure and the
same can be used for the reference for appropriate purposes.

149
K.H.Siraj v. High Court of Kerala, 2006 (6) SCC 395 p 419 para 51
150
Supra note 132
151
Id.

55
4.1 Parliamentary Reforms with regard to the Appointments

4.1.1 The Judges (Inquiry) Bill and the Parliamentary Standing Committees Twenty
First Report on the Judges (Inquiry) Bill, 2006

A plain reading of Article 124(4)152 would suggest that only on the proving of a judges
misbehaviour or incapacity can the process of impeachment be initiated. However, it was
necessary for the setting up of an authority to deal with the complaints so received and to
analyse them and assert them as well, which was allowed as per Article 124(5) 153 of the
Constitution of India.
For the same purpose, this particular bill was therefore propounded. This particular Bill, had
within itself, the necessity to comprise of a National Judicial Council and therefore, it can be
reasonably stated that with the striking down of the NJAC as unconstitutional, the
aforementioned Bill would also cease to be of any value because the core of the Bill is placed
on the formation of such a Commission. Therefore, it is the opinion of the researcher that,
such a Bill if needed to be revived, the same should be implemented by a revised and re-
implemented with provisions of contemporary relevance.

4.1.2 Second Administrative Reforms Commission, IVth Report

The Second Administrative Reforms Commission, IVth Report of 2007 would suggest the
ethical standards that are to be maintained by the judges and the constituent members of the
Court and accordingly, it could be seen that the important role of the judiciary and the role it
plays suggests that the conduct of the judge must be in accordance with the ethical
governance.154

The Commission in Para 2.9.2 suggests that the independence of judiciary is inextricably
linked to the judicial ethics and therefore the independent judiciary that enjoys the public
confidence would be a basic necessity in the respect of the independence of the judiciary. The
proposals made by this administrative reforms commission are quite in line with the previous
Commission reports that we have studied, particularly about the formation of a National
Judicial Council for such purposes but the only added feature would be that the
aforementioned Commission recommends the publishing of the Code of Conduct for

152
Article 124(4), Constitution of India, 1950
153
Article 124(5), Constitution of India, 1950
154
Second Administrative Reforms Commission, IVth Report, January 2007 - Para 2.9.1 page 47

56
judiciary in the Gazette of India and till such time the same is published, the resolution
adopted by the Supreme Court would be said to hold primacy accordingly.155

As one of their biggest contributions, the Administrative Reforms Commission suggested an

important step that I had pointed out when we referred to the Judges (Inquiry) Bill of 2006
wherein the final impeachment procedure would essentially go into the hands of the
legislature. However, in the instant case, it has been proposed, though not accepted yet, that
the recommendations made by the National Judicial Council will be binding on the President,
and would therefore mandate an amendment to the Constitution. This was stated by the
Commission because it believed that the Indian Impeachment process was severely flawed
and the questions of the judiciary must be dealt with in such a way as to necessitate a revised,
transparent and accountable process that will ensure the protection of the judicial
misconduct.156 Additionally, in the recommendations made by the Commission, it was
created such that a Judge of the Supreme Court will have to be designated as a Judicial
Values Commissioner whose task would be to enforce the code of conduct and the same
157
applies for the case of the High Court as well.
This in turn would create a transparent and accountable judiciary which then means that this
recommendation of the Commission has to be compulsorily looked into, in order to provide
for a base, where a proper implementation can take place without any kind of prejudice to the
individual judges as well as the system of judiciary itself. However, the implementation is the
key to the same which would mean that the same has to be implemented properly under the
proper constricts of law to create a stable judicial system.

4.1.3 The Judicial Standards and Accountability Bill, 2012

The Judicial Standards and Accountability Bill of 2012 if passed would be a major
breakthrough in the system of the corrections laid down to create a transparent and
accountable judiciary as such. This Bill has been passed by the Lok Sabha but is still pending
in front of the Rajya Sabha and therefore the Bill has not taken the form of the Act as of yet.

The provisions of this Act range from having the declaration of assets and liabilities of the
judges to the making of complaints and the oversight over the same complaints as provided

155
Id. at p 54 para 2.9.14
156
Id. at p 55 para 2.9.20
157
Id. at p 57

57
by the Act. We shall consider the provisions in brief and try to understand if the same would
help create a transparent judicial system.

Firstly, Section 3 prescribes the judicial standards that are to be followed by the judges some
of them being clauses like not hearing cases in which personal interest lies (Section 3(2)(e))
or not to have any close association with the individual members of the bar (Section 3(2)(b))
or make any unwarranted comments against the conduct of the constitutional or statutory
authorities (Section 3(2)(g)) or accept gifts or hospitality from anyone except his relatives
(Section 3(2)(i)). These are some guidelines that are so laid down by the aforementioned
Section.

Section 4, 5 and 6 deal with the provisions related to the declaration of the assets by the
members of the judiciary and lay down that the such changes need to be made such that the
Judge files his returns and assets in front of the competent authorities on the date so
prescribed in the Act and such assets shall be declared in the website as a public document in
the website of the Supreme Court or the High Court as the case may be.158

Section 7 and Section 8 allows for the making of a complaint in any manner and by any
person on an allegation of misbehaviour or incapacity of the judges as the case may be.

As the first layer of the consideration of the complaints, Section 10 suggests the creation of
the Complaints Scrutiny Panel and such a panel would be present to scrutinise the
complaints received. The Composition of the panel in the Supreme Court would be a Former
Chief justice of India and two judges as nominated by the Chief Justice of India (Section
11(1)) while in the case of the High Court, it would be a Former Chief justice of the High
Court and two judges as nominated by the Chief Justice of the High Court (Section 11(2)).

This scrutiny panel would consider the complaints and if there are sufficient grounds existing,
it shall hold a preliminary enquiry according to Section 14 and thereby submit a report of its
findings to the Oversight Committee which will then form the second layer of the
consideration of complaints against the judges.

Section 17 mandates that there shall be a creation of the National Judicial Oversight
Committee and the members of such Committee as per Section 18 shall be a retired Chief
Justice of India on the opinion of the existing Chief Justice as the Chairperson, the Judge of
the Supreme Court as nominated by the Chief Justice of India, the Chief Justice of a High

158
The Judicial Standards and Accountability Bill, 2012, 5 (India)

58
Court as nominate by the Chief Justice of India , the attorney general of India and an eminent
person as nominated by the President for that purpose. Section 19 says that, the Committee
shall on the receiving of such complaints of misbehaviour, recommend it to the Scrutiny
panel within 3 months of such receipt and then ask them to report the findings to the
Committee.
After this, the Oversight Committee shall set up a Investigation Committee if required as
under Section 22 of the said Act and the Investigation Committee would have powers to
make decisions such that they can call for the individual judge to present his case and also
conduct a preliminary investigation as under Section 24 and Section 25 of the said Act and
then submit its report to the Oversight Committee. The investigation Committee has to
conduct its enquiry as per the Section 29 of the said Act and conduct it only in camera and
not in public to maintain the judiciarys authority in the eyes of the public.

The most significant part, about the penalties that can be given, is provided with under the
Act itself after the conclusion of the investigation. Section 34(2) says that if the prima facie
evidence has been there of the commission of offence under any law, then the Committee can
recommend the Central Government to prosecute the judge under the said law. This is very
significant as this would mean that the judges would be treated as normal citizens in cases of
blatant derogation of the law done by them. Further, Section 35 provides that if the charges
are considered to be very serious then it can ask the individual judge to resign or ask the
President to refer the matter to the parliament for such removal. Section 36 thereby provides
that the Oversight Committee may authorise the filing of a criminal complaint if it is found
that the judge had threatened another such judge or made such an offence. Section 38
provides that the Oversight Committee can take the help of any of the offices of the State
Governments or the Central Governments for forming its opinion meaning that even the CBI
may be employed by the same Committee as such. In furtherance of all of this, under Chapter
VI the impeachment proceedings can therefore be constituted and proceeded upon
accordingly. These proceedings would make sure that the Oversight Committee and its
reports are presented, tabled and debated accordingly.

4.2 Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium

For the purpose of this section, we shall make references to the suggestions given by the
report filed by Ms. Pinki Anand and Mr. Arvind P. Datar and consequently trying to

59
understand as to how more changes can be brought into the system to make the Collegium
system a better mode of working. This is in addition to the previous section of what could
have been, which means that the Committees and standards so proposed by the Bills will also
be helpful in the execution of the interests of the judicial appointments.

4.2.1 Transparency and Confidentiality

With regards to transparency and confidentiality a number of general and specific

suggestions159 were made to that extent in the report and most of them go awry and are very
broad based mechanisms. But the researcher has picked those suggestions which are
important for the discussion at hand alone and also made a few additions to the suggestions
put forward in the report.

Firstly, the Criteria for selection must be well defined and laid down by the Supreme Court
and also made available in the website of the Supreme Court, for the appointment of judges.
Such Criterion must be made for the following categories: age, merit, seniority, integrity,
income criteria, and academic qualifications. A set scale for at least the tangible part of these
criterions would be a huge step forward.

Secondly, from the applicant side, the person has to render sufficient details about him and a
standard questionnaire for the same would be sufficient. In addition to this, they have to give
their indication of any relatives who may be judges at the time of submission of the
questionnaire, the income and assets as certified by a Chartered Accountant160 and if they
have any ties to any political parties. It was suggested that, in the event of a person being tied
to a political party for anytime not less than 3 years prior to the application, then his
application could be rejected. All the details so obtained must be published in the particular
website prescribed, by the Collegium on all accounts.

Following the receiving of the applications, the researcher would also suggest that there also
be a questionnaire with relation to different legal questions and constitutional questions as
such and the assessment of the same could be made by the Collegium, which is in adherence
with a principle of the American model.161

159
Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on representation/suggestions
for improving the Collegium in, Supreme Court Advocates-on-Record Association and Anr v Union of India,
2015
160
Id. at p 8
161
Refer Ch. II

60
Thirdly, the Collegium when it takes up the applications, the same must be subject to the
strictest scrutiny that is available and the candidate must be given a chance to appear in front
of the Collegium to present his case for selection. It was suggested that, in order to create a
transparent Collegium, the minutes of the meeting of the High Court and the Supreme Court
Collegium are to be recorded162 as such and the same would be disclosed every few years, for
the sake of the research, the researcher assumes it to be 5 years. Also, it was suggested that
for the sake of scrutiny of the applications, the Intelligence Bureau can be used by the
Collegium to form an inquiry and submit its report accordingly to the members. Additionally
it was mandated that to form its opinion, the Collegium was to consult some eminent persons.
For the purpose of the research, the research would suggest that, there is a need to follow a
method similar to the United Kingdom model163and make such consultation with the senior
members of the bar, the judges of the relevant courts, the law minister of the State or Union
as the case may be and the Chief Minister. These opinions are not binding; however, they are
to be recorded in writing and also published along with the other minutes of the meeting so as
to ensure transparency in the system.

However, along with this mode of transparency, it is an absolute necessity to consider the fact
that, there should also be an element of confidentiality accorded to the same as was felt by the
people who gave their suggestions. Accordingly, it was set that firstly, the Collegium would
not be amenable to a case proceeded against it, in the performance of its sovereign
functions164 but it is the researchers input, that if a candidate is presented with a gross
injustice as the case may be, then he can approach the Court system accordingly, in search of
justice. Secondly, all the details of the rejection of the candidate need not be published in
public and should not be amenable to the RTI, however the researcher feels that, the details of
rejection must be presented to the individual applicant in order to maintain his secrecy and
confidentiality and without a prejudice to his own career. Even the meetings of the Collegium
are therefore not published immediately, but only after a particular period of time has elapsed
accordingly.

4.2.2 Eligibility Criterion

In furtherance of maintenance of the eligibility criterion, the report suggested that a number
of multi various opinions were given by different members belonging to different classes and
those members. Accordingly, from the report that has been submitted taking cognisance of all

162
Supra note 159
163
Refer Ch. II
164
Supra note 162 at p 8

61
of these opinions, the researcher has chosen only such eligibility criterion as is necessary for
the research and combined with allied reasons, propose the eligibility criterion.

Firstly, with regards to the income limit, it was proposed that there was no need of such
income limit to be proposed with regards to checking the eligibility of a candidate.165 The Bar
Council of India has recommended a minimum of 20 years of practice and 45 years of age for
the High Court judges and 25 years of experience coupled with 50-55 years of age for the
appointment of the Supreme Court judges along with such limits being subject to relaxation
on the occurrence of strong reasons. As the guiding principle for the selection, the Bar
Council of India has recommended such criterion like the number and variety of cases filed,
appearances in court, number of reported cases, articles published in journals/magazines,
behaviour in court and knowledge of the law, subject to future alteration. This is for the case
of the advocates seeking elevation. In the case of Judges who seek elevation, the number of
judgments passed the quality and knowledge in the judgments and the knowledge of the law
need to be subject to scrutiny.

Accordingly, it has been suggested that, when the criteria is thereby fixed, then the candidates
can be assessed on the basis of a point system that is maintained by individual judges and an
aggregate score can be maintained.166 Further, most importantly, it has been mandated that,
along with a positive zone of selection, such negative zone of selection for the disentitlement
of a candidate also has to be set and be a subject of the Gazette notification accordingly.

Additionally, on analyzing the model followed in the United Kingdom167, the researcher
suggests that there can be an interview conducted for each candidate who has been shortlisted
after a tedious process, each of which interview would contain such provisions like role
playing and situational questions being posed, in an attempt to understand the qualitative
ability of the candidate. Questionnaires can also be set up, like the 121st Law Commission
report had recommended, in order to set a basic scale of merit, based on the kind of answer
that has been provided with by the candidate.

To check the eligibility of a candidate, a system of examinations also has been proposed
which we shall discuss in the forthcoming discussion. In terms of eligibility it has also been
recorded that the due special consideration needs to be given to those who are appearing in

165
Id. at p 15
166
Id. at p 16
167
Refer Ch. II

62
legal aid cases and pro bono works and also women candidates in a bid to diversify the
judiciary. 168

However the Collegium has been warned against using too much of the vacancies available to
do justice to diversification, however, on occasions where such diversification can be used,
the same can be done, under a special consideration after being specified.

The basis of these eligibility criterions would be to include such matters that would deal with
the conditions based in which the qualifications can be made. This is because of the fact that
the appointment to any constitutional or statutory authority has within itself its own criteria
and the basis for the appointment and it is this absence of criterion that has been subject to
criticism by a number of members of the judiciary and others, that leads to arbitrary action.
Therefore, the aforementioned criterions have to be incorporated as a set mode of eligibility
and the same must be made public for the selection of the judges.

4.2.3 Institutional Framework to tackle Inefficiency and Corruption

For the functioning of any particular format of selection of judges there needs to be put in
place sufficient institutional frame work in order to make sure that the mode of selection of
judges is made efficiently and to make sure that the framework aids in the smooth
functioning of the system that is in charge of the selection process. Accordingly, a number of
changes have been proposed with regards to the institutional framework that is required for
the efficient functioning of the Collegium system in the Indian perspective. With regards to
the Indian context, it has been seen that the Collegium has operated without any sort of
support thereby leading to heavy workload on the Collegium system which makes the system,
inherently inefficient as the clearances and the selection of such judges to fill up the vacancy
is not initiated in time. In the case of the U.S.A and the U.K. there exist such institutions
within the judicial system itself to aid and also help in the process of appointment to make it
efficient. Accordingly, the report has suggested some institutions to be formed, which are
under the Collegium system and would assist the Collegium system in such a way as to clear
the individual appointments sufficiently.

Firstly, the Bar Council of India has recommended the formation of a Secretariat under the
Collegium itself169 in the Supreme Court and the High Court and the staff for the same will

168
Id. at p 21
169
Id. at p 24

63
be decided by the Supreme Court Collegium and the High Court Collegium as the case may
be for a fixed tenure. The people who have been regarded as the members who can be so
elected are the Retired judges of the Supreme Court and the High Court for the Supreme
Court Secretariats and the Retired judges of the High Court and District Court for the High
Court Secretariat. Most importantly, a retired IAS/Senior government official could be
appointed for better administration related purposes.

The purpose of the formation of this Secretariat is to conduct the initial screening of the
candidates who have made an application for the vacancy and the criteria are also so
enumerated for such screening. For the screening of existing judges, the information is
collected regarding the number of judgments, landmark cases and the quality of the
judgments while in the case of screening of the distinguished jurist, the appointment will be
made by considering the number of publications and the academic credibility of the
candidate.170 The Secretariat will make such qualitative analysis of the judgments and also
the complaints made against any candidate who is coming forward for the appointment in
accordance with a set procedure171, as is required and the ultimate report is filed with the
authority above it as the case may be for their consideration and decision making. It is the
opinion of the researcher that the Collegium when considering this should also attempt a
peripheral scrutiny of the report presented and then go forward for making its representation.

Second institution that has been required to be present would aid in the further presence of
fluidity in the system by creating a second line of check. It has been proposed that the
Advisory Committee be set up to act as the median between the Secretariat and the
Collegium. It has been suggested that the Advisory Committee172 would be to aid and advice
the Supreme Court Collegium in the matter of appointment of the High Court and Supreme
Court judges. The Composition of the Committee would be the Attorney General or Solicitor
General as the case may be, the Chairman of the Bar Council of India, the Advocate General
of that State and one eminent person as selected by the Supreme Court Collegium and the
High Collegium jointly for the selection of High Court judges and in the case of the Supreme
Court Judges being selected, the Advocate general is replaced by the President of the
Supreme Court Bar Association.

170
Id. at p 25
171
Id. at p 29
172
Id. at p 33

64
There were other options given like the inclusion of the minister of law and justice of the
union and the state as the case maybe but it the conviction of the researcher that taking into
consideration the jurisprudence of the apex court towards the appointments process, it would
be good to leave them out of the institutional process and rather, their advice can be taken
into consideration once the part where such advice is required is reached.

The purpose of this Advisory Committee is to take the Prima Facie case formed by the
Secretariat and then following which they inform the Union government or the State
government and the Concerned Bar Council requesting for comments and complaints on the
same. The Attorney general will gather the information on the background and merits,
honesty and integrity of the candidates, while the Chairman of the Bar Council will have to
consult with such members of the Bar and noted senior advocates and thereby collect
information within 45 days.173 After such consideration has been done, a written report is
drafted and the same written report is then given to the High Court Collegium or the Supreme
Court Collegium as the case maybe. In my opinion, for the case of selection of judges to the
High Court Collegium and for the case of selection of judges to the Supreme Court judges, to
the Supreme Court Collegium. Such a report so submitted in writing, will have to be regarded
by the Collegium and based on the same and their individual investigation, the
recommendation is made.
These two institutions are specifically to ensure the efficiency in the system and to make sure
that there is no hegemony by a certain set of members of the judiciary as the case may be.
This would also mean that the same would be in accordance with the principles followed in
the United States of America where a multiple institutions such as the Senate Judiciary
Committee, the American Bar Association and other such institutions as are included in the
process of selection of the judges.

The Last institution that got a passing remark is the one that the researcher has already
pointed out, which is not directly related to the appointment of judges but rather, it is
intricately connected with the maintenance of the efficiency and the prevention of the
Corruption within the existing pool of judges. This Committee is the National Oversight
Committee that is required to be formed to keep a check on the activities of the judges who
form a part of the judiciary and the individual judges. The same is a part of the Judicial
Standards and Accountability Bill of 2012 but it has not yet been passed. However, it is very
necessary the same gets passed so that the corruption within the judiciary can be brought
173
Id. at p 35

65
down and such actions can be taken as prescribed. Therefore, it would be highly imperative
as Chief Justices M.N. Venkatachaliah and J.S. Verma point out in the report174 to form such
a Committee to act as an Ombudsman body that takes care of the complaints made against the
judiciary and its individual components.

In addition to the same, I would add that, the consideration has to be given to the decisions
made in the Second Administrative Reforms Commission, IVth Report wherein it was
proposed that the President should be given greater power to implement the impeachment
process and thereby creating more power to execute the impeachment of a judge who ha been
a person who has committed such frivolous crimes as would mandate such a response.
Accordingly, it has to be said that once these institutions are put in place, the mode of
selection of judges would at least be better and efficient and there will not be any lag in the
appointment of judges according to the vacancy so created and make the Collegium efficient.

4.2.4 All India Judicial Service

This mode of setting up a All India Judicial Service is heavily linked with the opinion that
there is a need to set up such a system in order to reform the Judiciary from the bottom up by
the employing of such a mode of selection. Accordingly, it was made as a reference in the
report submitted that it would be necessary to institute an All India Judicial Service in order
to reform the system from the sub ordinate judiciary itself. Therefore, researcher shall merely
check for the viability and need for such a proposal as a final condition that is required for the
improving the efficient judiciary.

The first Law Commission recommended in its fourteenth report the creation of an All India
Judicial Services and it was said that such a course is necessary in the interest of efficiency of
the subordinate judiciary. This proposal was considered in the Law Ministers Conference
held in the year 1960 where strong opinions were expressed for and against the said
proposal. The proposal was accordingly shelved because of the fact that it failed to garner
enough support and momentum for the same. More than half of the States and High Courts
opposed to the proposal. Following this, a number of other law commissions also made the
same recommendations, as to institute a All India Judicial Service in order to increase the
efficiency of the appointments. Some of the main objections that were made were that the
judicial service would mean that a person could be recruited in different places and therefore
have a place where mother tongue is not known. However, the 121st report of the Law

174
Id. at p 29

66
Commission had proposed a mode to fill in lacuna to say that all the judges were required to
learn at least one language over and above the mother tongue of the person175 and on the
appointment being made on the basis of the consideration of this fact, it could be said that the
language would consequently have no bar as such.

Although it is obvious that such a creation of the All India Judicial Service would be
hampered by such language related issues, it is still sufficient to note that, once that particular
problem is sorted out, the subordinate judiciary can undergo sweeping changes.

Apart from these recommendations, it is important to note that, the Constitution itself along
with its interpretation by the Supreme Court mandates the need for the setting up of an All
India Judicial Service. Significantly, with the respect to the Constitution itself, relevance
needs to be given to the Article 312 of the Constitution.

Article 312 of the Constitution deals with the setting up of a all India service when required
by the Rajya Sabha by a resolution passed by not less than 2/3rd of the members present and
voting in the interests of the nation and it was also said that, these all India services would
also include within itself the concept of a judicial service itself as was inserted in the year
1976 by the 42nd Constitutional Amendment Act. It thereby mandates that the All India
Services can be created on the basis of its necessity.
This is where the relevance of the Supreme Court comes in. In a landmark ruling, the
Supreme Court held that,

"We are of the view that the Law Commission's recommendation should not have been
dropped lightly. There is considerable force and merit in the view expressed by the Law
Commission. An All India Judicial Service essentially for manning the higher services in the
subordinate judiciary is very much necessary. The reasons advanced by the Law Commission
for recommending the setting up of an All India Judicial Service appeal to usbut we would
commend to the Union of India to undertake appropriate exercise quickly so that the
feasibility of implementation of the recommendations of the Law Commission may be
examined expeditiously and implemented as early as possible. It is in the interest of the health
of the judiciary throughout the country that this should be done."176

175
Ministry of Law and Justice, A Consultation Paper on All India Judicial Service,
http://lawmin.nic.in/ncrwc/finalreport/v2b1-15.htm (Last Visited on Mar.6, 2016, 10:00 P.M (I.S.T))
176
All India Judges Association v Union of India, 1992( 1) SCC 119 p 123 Para 11

67
Thereafter, it can be said that the setting up of a All India Judicial Service would have to be
considered as one of the very much necessary aspects of the maintenance of quality in the
judiciary. By the way of this setting up, the researcher feels that, the appointments of such
qualified members arising out of the said exam could be appointed on a merit basis to the
different subordinate judiciary and later on, the same members so elected would be subject to
elevation over time to the High Court as well as the Supreme Court as the time wears on.

However, it has not been contemplated yet as to who this particular service would function
under. The Law Commission in the 116th report, on formation of an All India Judicial
Service, has noted in para 5.14 that the time was ripe for the creation of a National Judicial
Service Commission. The Law Commission was of the opinion that the All India Judicial
Services if were to be set up would not have to be under any State or Union Public Service
Commission as they feared the corruption and political influence in the same.177 Therefore,
they made a general proposal as to form the National Judicial Service Commission but they
did the not specify as to what the members of such a Commission would be composed of.
Mere guidelines were issued by the Commission and in furtherance of that, the researcher has
made his own formulation and has proposed a possible model based on the same.

Firstly, as pointed out, the exams would be conducted by the National Judicial Commission,
which is composed of the retired judges of the Supreme Court of India acting at the helm of
affairs, who are appointed by the Chief Justice of India along with the Attorney general and
the minister for law and justice for institutional support alone. If there are other members
needed, then such members at the discretion of the Chief Justice of India shall be appointed,
provided that the total composition does not exceed 5 members excluding the Chief Justice of
India and also provided that such members can be changed only every two years. Once the
Commission has been set up, the Commission would be solely answerable only to the Chief
Justice of India and not to any executive or legislative authority, unless there are cases where
there is a blatant violation of the principles of natural justice as the case may be. This would
then mean that the service would be free of executive influence and also act efficiently
through the course of functioning. The procedure and the merit scale shall be set by the same
commission and made public, similarly the results based on these are also supposed to be

177
One Hundred and Sixteenth Report of the Law Commission of India, On Formation of an All India Judicial
Service, 1986 at p 35 para 5.14

68
made public as such. Additionally in a bid to increase the transparency, there needs to be
made such provision that the authority is amenable to the provisions of the RTI.

Accordingly, one can state that, this formulation of the All India Judicial Service would be
the final nail in the box to include the reformation of the judiciary itself and the Collegium
itself as the case may be and end up creating an efficient mode of appointments and also the
transparent and accountable body. The Aforementioned steps if taken would result in the
formation of a Collegium system that is efficient. Additionally it needs to be seen that any
other changes can be imported later on, on a case to case basis, to create an open and
acceptable system.

69
70
 CHAPTER V

CONCLUSION

The judiciary is one of the most important organs of a civil and democratic society. Of the
judiciary, it is imperative that the sovereign institution remains independent and also
functions independent of the executive power as well as the legislative authority. In this
regard it is to be noted that, the Supreme Court in the instant case has allowed the Judiciary to
be completely independent of the other two institutions of the Government. Accordingly, as a
product of judicial interpretation, the Collegium system came into existence thereby making
it a first of its kind model that is unique to the Indian system. However, a number of
blockades were being formed for such continuance of the model based solely off its
inefficiency.

Through the course of Chapter Two, the researcher took a turn at analyzing two major
jurisdictions and the process of appointments in that jurisdiction, in a bid to take any kind of
positives that might arise out of the analysis of the same. Along with that, a glance at the way
of appointment of judges during the time immediately after the drafting of the Constitution
was also considered. Accordingly, the essence of Chapter two was used in the final chapter in
the bid to make proposals towards an efficient Collegium system. Thereby, the provisions
related to the presence of the tests given to the candidates like in the United Kingdom and the
background check process along with its examination by a Senate Judiciary Committee was
taken up for consideration in the penultimate chapter as possible methods that could
employed for the refining of the appointment of judiciary.

Proceeding further, in Chapter Three, the aim of the researcher was to make a prima facie
case against the NJAC that was proposed by the legislature to that regard. Accordingly, a
number of Law Commission Reports which aided in parts and bits towards the construction
of the case against a Collegium system was identified in the due process. Similarly, the
judicial background of the research at hand was also dealt with in a bid to have a clear idea
about the progress of the research. On the accumulation of the same and the subsequent
analysis of the same, the researcher was able to make a case against the NJAC and a stand in
favour of the Collegium System as a system for the method of appointment of judges.

71
In the penultimate chapter, Chapter Four, the effort was streamlined completely towards the
creation of a better mode of functioning for the judiciary in particular, for the process of its
appointments and in furtherance of the same, the proposed parliamentary reforms and such
other reforms were also taken into consideration and accordingly studied. On the basis of the
research done in pursuance of the same, a number of methods were proposed in a step by step
manner, in order to prescribe the exact steps that are required to be taken by the judiciary to
improve on its performance. For this purpose, the report submitted by two eminent people at
the behest of the Supreme Court was studied and therefore the recommendations were stream
line and lay down. Sufficient reference was also made to the preceding chapters in a bid to
create an self sustaining and efficient model which included the criterion for selection, the
process of selection and also the institutional framework that is so required for the same
purpose.

As has already been stated, the purposed of the study was to enable the researcher to reach
and attain the proverbial light at the end of the tunnel. The reforms of the judicial system
have been a long time coming and the changes in the same cannot happen overnight.
However, there still exists a need to make such academic debates and arguments in order to
keep strengthening one of the most important pillars of democracy. It is the opinion of the
researcher that the research at hand, would be a step forward in the right direction and the
recommendations if it were to be taken up would result in a much better and way more
efficient judiciary

It is therefore concluded that the result of this study at hand, would be the creation of a
system of appointments that is in accordance with the maintenance of the independence of the
judiciary and also the efficient and transparent mode which is not detrimental to any person
per se. The Collegium 2.0 is therefore proposed and the same can be considered to be one of
the most required amended models of judicial appointments as is necessary for securing the
independence of the judiciary and create a system that is transparent and accountable in its
own regard.

72
 CHAPTER VI

BIBLIOGRAPHY

Primary Sources

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June 1949
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Judges, 1979
6. One hundred and Twenty First Report of the Law Commission of India on a New
Forum for Judicial Appointments, July 1987
7. Twenty Fifth report of Select Committee on the Constitution on Judicial
Appointments, House of Lords
8. Lok Sabha Debates, Fifth Series, Vol. 9, No.13, Cols. 337-46
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Amendment) Bill, 2014 and The National Judicial Appointments Commission
Bill, 2014
10. Second Administrative Reforms Commission, IVth Report, January 2007
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Bill, 2006
14. Parliamentary Standing Committees Forty Fourth Report on the Constitution
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15. Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium in, Supreme Court
Advocates-on-Record Association and Anr v Union of India, 2015

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Haryana
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6. B.N.Kirpal et al., Supreme But Not Infallible - Essays in Honour of the Supreme
Court of India, (7th impression, 2015) Oxford University Press, New Delhi
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529 (1926)

11. John Ferling, The Senate and Federal Judges: The Intent of the Founding Fathers, 2
Capitol Studies 66 (1974)
12. P. Harris, The Advice and Consent of the Senate, 43 University of California Press
609 (1953)
13. Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and
Historical Analysis (Constitutional Conflicts), 33 (2nd Edition, 2003), Duke
University Press Books, Durham
14. United States Institute of Peace, Judicial appointments and judicial independence,
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15. Yale Law School The Avalon Project, Articles of Confederation : March 1, 1781,
http://avalon.law.yale.edu/18th_century/artconf.asp (last visited Mar. 31, 2016, 4.30
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20. American Bar Association, Standing Committee on Federal Judiciary: What It Is and
How It Works,
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Feb 21, 2016, 4.30 PM (I.S.T))
21. Kaleeswaram Raj, Justice in judicial appointment, The Hindu, Jan. 18, 2014,
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appointments/article5587974.ece
22. Judicial Appointments Commission, About Us, https://jac.judiciary.gov.uk/about-us
(last visited Feb. 19, 2016, 4.30 PM (I.S.T))
23. Parliament Publications, Chapter 2: The constitutional framework, point no. 17
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(last visited Mar. 1, 2016, 4.30 PM (I.S.T))
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2016, 4.30 PM (I.S.T))
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appointments-not-fit
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 http://www.prsindia.org/uploads/media/Judges%20(Inquiry)%20/legis1200302901_Legis
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28. Prashant Bhushan, The Supreme Court Did Well to Quash the National Judicial
Appointments Commission, The Wire, Oct. 16, 2015, http://thewire.in/2015/10/16/the-
supreme-court-did-well-to-quash-the-national-judicial-appointments-commission-
13371/
29. P.D.T Achary, NJAC: Objection overruled, The Hindu, July 9, 2015,
http://www.thehindu.com/opinion/op-ed/national-judicial-appointments-commission-
act-objection-overruled/article7400005.ece

30. Legally India, What it reveals and what it doesn't: Arvind Datar-Pinky Anand report
on neo-collegium, http://www.legallyindia.com/scoi-reports/what-it-reveals-and-
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February 15,2016, 4:30 P.M (N.T.M))

31. V.R.Krishna Iyer, National Judicial Commission, The Hindu, Oct. 20, 2003,
http://www.thehindu.com/2003/10/20/stories/2003102001481000.htm

32. Suhrith Parthasarathy, Safeguarding Judicial Autonomy, The Hindu, August 25, 2014,
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6. www.thehindu.com

76
 ANNEXURE

Constitution of India, 1950

Article 74, Constitution of India, 1950

Council of Ministers to aid and advise President

(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:

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.

(2) The question whether any, and if so what, advice was tendered by Ministers to the
President shall not be inquired into in any court.

Article 124, Constitution of India, 1950

Establishment and constitution of Supreme Court

(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges.

(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 rom his office in the manner provided in clause (4).

2A. The age of a Judge of the Supreme Court shall be determined by such authority and in
such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he
is a citizen of India and-

77
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts
in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

Explanation I.- In this clause "High Court means a High Court which exercises, or which at
any time before the commencement of this Constitution exercised, jurisdiction in any part of
the territory of India.

Explanation II.- In computing for the purpose of this clause the period during which a
person has been an advocate, any period during which a person has held judicial office not
inferior to that of a district judge after he became an advocate shall be included.

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported by a majority of
the total membership of that House and by a majority of not less than two-third of the
members of the House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehavior or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for
the investigation and proof of the misbehavior or incapacity of a Judge under clause (4):

(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon
his office, make and subscribe before the President, or some person appointed in that behalf
by him, an oath or affirmation according to the form set out for the purpose in the Third
Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any
court or before any authority within the territory of India.

Article 217, Constitution of India, 1950

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.

78
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.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a
citizen of India and-

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such
Courts in succession;

Explanation.- For the purposes of this clause-

(a) in computing the period during which a person has held judicial office in the territory of
India, there shall be included any period, after he has held any judicial office, during which
the person has been an Advocate of a High Court or has held the office of a member of a
tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court,
there shall be included any period during which the person has held judicial office or the
office of a member of a tribunal or any post, under the Union or a State, requiring special
knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of
India or been an advocate of High Court, there shall be included any period before the
commencement of this Constitution during which he has held judicial office in any area
which was comprised before the fifteenth day of August, 1947, within India as defined by the
Government of India Act, 1935, or has been an advocate of any High Court in any such area,
as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision of
the President shall be final.

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Article 218, Constitution of India, 1950

Application of certain provisions relating to Supreme Court to High Courts

The provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as
they apply in relation to the Supreme Court with the substitution of references to the High
Court for references to the Supreme Court.

Article 233, Constitution of India, 1950

Appointment of district judges

(1) Appointments of persons to be, and the posting and promotion of, district judges in any
State shall be made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be
appointed a district judge if he has been for not less than seven years an advocate or a pleader
and is recommended by the High Court for appointment.

Article 312, Constitution of India, 1950

All-India Services

(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has
declared by resolution supported by not less than two-thirds of the members present and
voting that it is necessary or expedient in the national interest so to do, Parliament may by
law provide for the creation of one or more all-India services (including an all-India judicial
service) common to the Union and the States, and, subject to the other provisions of this
Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any
such service.

(2) The services known at the commencement of this Constitution as the Indian
Administrative Service and the Indian Police Service shall be deemed to be services created
by Parliament under this article.

(3) The all-India judicial service referred to in clause (1) shall not include any post inferior to
that of a district judge as defined in article 236.

(4) The law providing for the creation of the all-India judicial service aforesaid may contain
such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving
effect to the provisions of that law and no such law shall be deemed to be an amendment of
this Constitution for the purposes of article 368.

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The Constitution (Ninety-Ninth) Amendment Act, 2014 Now Struck
Down

2 (India) - . In article 124 of the Constitution, in clause (2),

(a) for the words 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, the words,
figures and letter on the recommendation of the National Judicial Appointments
Commission referred to in article 124A shall be substituted;
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words Provided further that, the words Provided that
shall be substituted.

3 (India) After article 124 of the Constitution, the following articles shall be inserted,
namely:

124A. (1) There shall be a Commission to be known as the National Judicial Appointments
Commission consisting of the following, namely: (a) the Chief Justice of India,
Chairperson, ex officio; (b) two other senior Judges of the Supreme Court next to the Chief
Justice of India Members, ex officio; (c) the Union Minister in charge of Law and Justice
Member, ex officio; (d) two eminent persons to be nominated by the committee consisting
of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of
the People or where there is no such Leader of Opposition, then, the Leader of single largest
Opposition Party in the House of the People Members: Provided that one of the eminent
person shall be nominated from amongst the persons belonging to the Scheduled Castes, the
Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an
eminent person shall be nominated for a period of three years and shall not be eligible for
renomination.

(2) No act or proceedings of the National Judicial Appointments Commission shall be

questioned or be invalidated merely on the ground of the existence of any vacancy or defect
in the constitution of the Commission.

124B. It shall be the duty of the National Judicial Appointments Commission to (a)
recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court,
Chief Justices of High Courts and other Judges of High Courts; (b) recommend transfer of
Chief Justices and other Judges of High Courts from one High Court to any other High Court;
and (c) ensure that the person recommended is of ability and integrity.

124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of
India and other Judges of the Supreme Court and Chief Justices and other Judges of High
Courts and empower the Commission to lay down by regulations the procedure for the

81
discharge of its functions, the manner of selection of persons for appointment and such other
matters as may be considered necessary by it..

The Constitutional Reform Act, 2005, C.4

25 (United Kingdom) -

Qualification for appointment

(1) A person is not qualified to be appointed a judge of the Supreme Court unless he has (at
any time) (a) held high judicial office for a period of at least 2 years, or (b) been a
qualifying practitioner for a period of at least 15 years.

(2) A person is a qualifying practitioner for the purposes of this section at any time when

(a) he has a Senior Courts qualification, within the meaning of section 71 of the Courts and
Legal Services Act 1990 (c. 41),

(b) he is an advocate in Scotland or a solicitor entitled to appear in the Court of Session and
the High Court of Justiciary, or

(c) he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of
Northern Ireland.

26 (United Kingdom)

Selection of members of the Court

(1) This section applies to a recommendation for an appointment to one of the following
offices (a) judge of the Supreme Court; (b) President of the Court; (c) Deputy President of
the Court.

(2) A recommendation may be made only by the Prime Minister.

(3) The Prime Minister (a) must recommend any person whose name is notified to him
under section 29; (b) may not recommend any other person.

(4) A person who is not a judge of the Court must be recommended for appointment as a
judge if his name is notified to the Prime Minister for an appointment as President or Deputy
President.

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 (5) If there is a vacancy in one of the offices mentioned in subsection (1), or it appears to
him that there will soon be such a vacancy, the Lord Chancellor must convene a selection
commission for the selection of a person to be recommended.

(6) Schedule 8 is about selection commissions.

(7) Subsection (5) is subject to Part 3 of that Schedule.

(8) Sections 27 to 31 apply where a selection commission is convened under this section.

27 (United Kingdom)

Selection process

(1) The commission must (a) determine the selection process to be applied, (b) apply the
selection process, and (c) make a selection accordingly.

(2) As part of the selection process the commission must consult each of the following (a)
such of the senior judges as are not members of the commission and are not willing to be
considered for selection; (b) the Lord Chancellor; (c) the First Minister in Scotland; (d) the
Assembly First Secretary in Wales; (e) the Secretary of State for Northern Ireland.

(3) If for any part of the United Kingdom no judge of the courts of that part is to be
consulted under subsection (2)(a), the commission must consult as part of the selection
process the most senior judge of the courts of that part who is not a member of the
commission and is not willing to be considered for selection.

(4) Subsections (5) to (10) apply to any selection under this section or section 31.

(5) Selection must be on merit.

(6) A person may be selected only if he meets the requirements of section 25.

(7) A person may not be selected if he is a member of the commission.

(8) In making selections for the appointment of judges of the Court the commission must
ensure that between them the judges will have knowledge of, and experience of practice in,
the law of each part of the United Kingdom.

(9) The commission must have regard to any guidance given by the Lord Chancellor as to
matters to be taken into account (subject to any other provision of this Act) in making a
selection.

(10) Any selection must be of one person only.

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