The edifice of any democratic government rests on three pillars i.e. the legislature, the executive, and the judiciary, and these pillars constitute the basis of the governmental machinery. The judiciary is to enforce the law; interpret the constitution; act as the protector of Fundamental rights which are guaranteed by the Constitution to the people etc. While discharging these roles, the judiciary reviews the actions of the legislature and executive. The judiciary is being empowered to strike down any law as void if any law is ultra vires to the Constitution. In recent times, it has been a matter of hot discussion as it is reported repeatedly that the judiciary is encroaching in the affairs of the legislature and of the executive. So herein, we will discuss provisions regarding the appointment of judges to the higher judiciary owing to the independence of the Judiciary.

Appointment of Judges to Higher Judiciary and the Constitutional Provision
Various countries have adopted various modes of appointment of judges to the higher judiciary. In Germany, appointments take place through elections. Half the members of the Federal Constitutional Court are elected by the executive and half by the legislature. In Great Britain, the appointment of judges made by the Crown, which means the executive, can appoint judges without any restriction. In the United States, the President appoints the Supreme Court judges based on the opinion of the senate. The framers of the Indian Constitution saw difficulties in both these methods, so they adopted a mid-way. The English method gives a leeway to the executive while the American system is rigid and involves the possibility of risking the judicial appointment to political influence and pressure. The Indian method neither gives absolute authority to the executive nor does it permit the parliament to influence the appointment of judges. The executive is required to consult persons who are well qualified to give proper advice in this regard. 

(a) Appointment of Judges to the Supreme Court
Every judge of the Supreme Court is appointed by the President of India. The power of appointment by the President to appoint the Supreme Court judges is not unfettered. The Constitution requires the President to consult such other judges of the Supreme Court and High Courts, as he may deem necessary. The process of appointment of a judge of the Supreme Court is initiated by the Chief Justice of India through a collegium, consisting of himself and the four most senior judges of the Supreme Court. The recommendation of the collegiums is binding on the President though he may also seek a re-consideration for the matter. Over the years, a convention has developed, which allows the senior-most puisne judge to assume the office of the CJI in case of any vacancies. 

(b) Appointment of Judges to the High Courts
The judges of the High Courts are appointed by the President, in consultation with the Chief Justice and the Governor of the concerned state. The appointment of judges belonging to other courts is made by the Chief Justice of the High Court to which the appointment is to be made. 

Appointment of judges to higher judges and judicial interpretation
The Constitution does not lay down a definite and lucid procedure for the appointment of judges to the Supreme Court or the High Court. It merely says that the President shall appoint Supreme Court judges in consultation with the Chief Justice of India, and such other judges of Supreme Court, as he may deem necessary.  

(a) Appointment of CJI [1950-1973]

(i) Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India.

(ii) A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.

(iii) In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.

(iv) Again in 1977, another chief justice was appointed who superseded his seniors.
This controversy raised question which was dealt with by the Supreme Court in several cases:

(b) S. P. Gupta v. Union of India 
The major issue for consideration before the Supreme Court in this case was of the several functionaries participating in the process of appointment of judges to the Supreme Court and the High Court, whose opinion should have the final say or concurring point of view in the process selection. The bench constituting Justice Bhagwati, Justice Fazal Ali, Justice Desai and Justice Venkstarmiah held that the opinion of Chief Justice of India and the Chief Justice of the High Court were merely consultative and that, the power of appointment resides solely and exclusively with the President, and the central government could override the opinion of the Constitutional functionaries.

(c) Supreme Court Advocate-on-record Association v. Union of India 
In this case, the Supreme Court gives a wider meaning to consultation with CJI. The Supreme Court held that, for choosing a suitable candidate for appointment, the opinion of the Chief Justice should have the greatest weight as he is best suited to the worth of the appointee, thus CJI’s opinion shall have a concurrent view. This gave birth to the collegium system which consists of CJI and two senior-most Judges. This case is also known as the ‘Second Judges Case’.

(d) Re: Presidential Reference
The ruling of the Supreme Court in the above case regarding appointment was elaborated further by another nine judge’s bench in this case.
The Supreme Court laid down the following propositions with regard to the appointment of Supreme Court judges: 

(i) The Chief Justice shall make a recommendation to appoint a judge at the Supreme Court, in consultation with the four senior-most puisne judges.

(ii) The Chief Justice is not entitled to act solely in his own capacity without consultation with other judges of the court in respect of materials and information conveyed by the government for the appointment of judges.

(iii) If the majority of the collegiums are against the appointment of a particular person, that person shall not be appointed. The court also laid down that, “if even two of the judges forming the collegiums express strong views for good reasons that are adverse to the appointment of a particular person, the Chief Justice of India would not press for such appointment.” 

    (e) Collegium System

    (i) In this system of appointment of Judges, the collegium will recommend the names of the candidates to the Central Government.

    (ii) Also, the central government will send the names of the proposed candidates for consultation.

    (iii) The appointment process takes a long time since there isn’t a fixed time limit for it. If the Collegium resends the same name again then the government has to give its assent to the names.
    The Collegium System faced a lot of criticism not only from the government but also from civil society due to its Lack of Transparency and Accountability.

    This led to the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.

    National Judicial Appointment Commission

    The parliament passed the 121st Constitutional amendment Bill 2014 with a view to replacing the collegium system with regard to the appointment of judges. The bill seeks to enable equal participation of judiciary and executive to ensure the appointment is more participatory, transparent, and objective. The bill amends Article 124(2) of the Constitution to provide a commission to be known as the National Judicial Appointment Commission (NJAC).

    1. Composition of NJAC

    The NJAC consists of six members – Chief Justice of India as a chairperson, two senior-most judges of the Supreme Court, Union Minister of law and Justice, two eminent personalities (to be nominated by a committee consisting of Chief Justice, Prime Minister and leader of opposition in Lok Sabha). Of these two eminent persons, one person would be from SC/ST/OBC or minority community, or a woman, and they are to be nominated for a period of three years and shall not be eligible for re-election.

    2. Functions of NJAC

    The bill assigns NJAC following functions:
    (i) Recommending persons for appointment as Chief Justice of India and other judges of the Supreme Court. 
    (ii) Recommending transfer of Chief Justice and other judges from one High Court to another. 
    (iii) Ensuring that the persons recommended are of ability and integrity. 

    3. NJAC Struck Down as Unconstitutional

    The validity of NJAC was challenged before the Supreme Court in Supreme Court Advocates-on-Record v. Union of India.  In a landmark judgment, a five judge’s bench of Supreme Court by 4:1 majority struck down the 99th Constitutional amendment held it to be ultra vires to Constitution and that it sought to interfere with the independence of the judiciary, of which appointment of judges and primacy of the judiciary in making such appointments was indispensable.
    Justice J. Chelemaswar in his dissenting opinion stated that the ever-rising pendency of cases warranted a “comprehensive reform of the system” and upheld the validity of NJAC.  Also, that primacy of the Chief Justice is not in the basic structure of the constitution, and the judiciary’s power over appointments was not the only means for the establishment of an independent and efficient judiciary. 
    The key Holding of the Judgment:
    (i) Judicial appointments being an integral facet of judicial independence are part of the basic structure.
    (ii) Judicial primacy in judicial appointments with executive participation is also the part of basic structure.
    (iii) The collegium allows for executive participation by maintaining the judicial primacy through the collegiums.
    (iv) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.

    Justice Khehar provides five reasons, backing the second judge’s case:
    1.  That judicial primacy in appointment was repeatedly accepted.
    2. That collegium does not violate the Constitutional scheme by effacing the participation of the executive since the President acting on the aid and advice of the council of ministers can still object to recommend names provided his vision and so on.
    3. In the constituent assembly debates, judicial appointments were specifically discussed in the context of judicial independence, making it clear that the Constitutional scheme regards the appointment of judges as an integral part of judicial independence.
    4. In the constituent assembly debates, while the word consultation was being discussed, Dr. Ambedkar clearly stated that it was intended to curtail the will of the executive. Dr. Ambedkar was hesitant about giving a complete veto to one individual- the Chief Justice of India. The collegium achieves the desired balance between the two positions, by placing primacy in the hands of judges.
    5. Consistent practice since independence allowed the Chief Justice of India, the final say in judicial appointments.


    Whatever it be called – JUDICIAL ACTIVISM OR JUDICIAL OVERREACH, striking down of NJAC has added another chapter in the controversy for the appointment of judges to the higher judiciary in India. It is firmly believed that for securing independence and objectivity of the judiciary it is necessary that judges be selected on merit and political elements should be reduced in the process of selection of judges. Thus, a balance needs to be struck between the collegium system and the proposed commission for the appointment process.

    [1] M.P. Jain, ‘Indian Constitutional Law’, 5 ed. 192, Wadhwa and Co., Nagpur, (2007).
    [2] V.N. Shukla, ‘Constitution of India’, 11 ed. 473, Eastern Book Co. Lucknow, (2011).
    [3] INDIA CONST., Art. 217 (1).
    [4] INDIA CONST., Art. 124 (2).
    [5] S. P. Gupta v. Union of India, A.I.R. 1982 SC 149
    [6] Supreme Court Advocate-on-Record Association v. Union of India, A.I.R. 1994 SC 268.
    [7] Re: Presidential Reference, A.I.R. 1999 SC 1
    [8] A. K. Vishwakarma, National Judicial Appointment Commission Bill, 2014: Re-Casting the Debate on Independence of Judiciary, Civil, and Military Law Journal, Vol. 51, No.1, 44, January-March 2015.
    [9] The National Judicial Appointment Commission Act, 2014, Section 5.
    [10] The National Judicial Appointment Commission Act, 2014, Section 6.
    [11] Supreme Court Advocates-on-Record Association and Anr .Vs. Union of India (Supreme Court), Writ

    Petition (Civil) No. 13 of 2015.

    [12] Utkarsh Anand, Supreme Court Strikes Down NJAC, Revives Collegiums System, The Indian Express, 17 October 2015, available here
    [13] Satendra Singh, The NJAC Judgement and its Discontents, The Word Press, 16 October 2015, available here

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