COLLEGIUM SYSTEM AND TRANSPARENCY IN

APPOINTMENT OF JUDGES

ABSTRACT

The paper highlights the problem of independence of the judiciary, how it became really
independent through the collegium system, the menace of corruption and transparency. The
judiciary has been one of the most revered institutions of the nation since independence, be it
the historic judgements on fundamental rights in Keshavananda Bharti and Maneka Gandhi,
or the daily life cases where the common people approach the judiciary for their
constitutional and legal rights. The judiciary could not do such a great job it had been
subservient to the government. But corruption crept into the judiciary which is a menace
today. So the NJAC was put forward but it is ultra vires the constitution. But anyhow
transparency in the appointment of judges is imperative which can curb the corruption and
nepotism menaces.

The Supreme Court has passed a regulation on 3-10-2017 for bringing transparency in the
appointment of judges but it is inefficient and lacks the main points required for bringing
transparency. The paper serves with these main points in end which will be helpful in
bringing about a just and fair judiciary with its independence.

INTRODUCTION

Collegiums system is the system currently in use in the judiciary in which judges are
appointed by judges. This system arose in the year 1998 as a result of the three Judges’ case.
This system was developed by the judiciary to get rid of the influence of the legislature and
the executive, to make the judiciary independent. But issues arose as time passed
by.Corruption is something which has not seeped in anything left out of everything it has
entered. But contrary to this statement, the judiciary has also been criticised for corruption.
The truth lies not in the face-value of a statement of a position but in the ground for the
statement of that particular position. Many say the judiciary is corrupt as prominent leaders of
a party in government are left untouched by the judiciary until another party comes to power.
Prominent persons get their way out of the judicial process very easily, just like a baby finds
it very easy to get away from the side of its fast asleep mother and get itself dirty and wet. But
this is not true that the judiciary is like a sleeping mother who cannot take care of her child, or
like an injured lion who cannot keep the dog swarm from killing every other animal in the
forest. The judiciary is actually like an elephant, which even when old and injured, is left free
and unafraid by all other animals, and who protects the animals near to its swarm of elephants
also and enjoys with them. The judiciary is like Angel Gabriel who protects the righteous.
The downtrodden and those whose rights have been infringed find the last resort in the
judiciary. In the present time the country is full of mud and dirt. But any splash of dirty water
cannot taint the judiciary unless the judiciary itself agrees to take up the dirt. The allegations
of a corrupt judiciary may have some point of truth in it, but the fact is that unless something

1
is proved it is not accepted that such a thing has happened. So the judiciary is in a position of
defence. Now we see that the judiciary is in such a position because the dirty water is either
being splashed onto it or someone is pointing the coloured nature of the judiciary due to the
splash. Which is true is difficult to say, but the relationship of the judiciary with those who
are making such allegations in a point to be pondered upon.

Next, the present time is asking for transparency in every action of the State. The judiciary
being a tier of the State is also under the same lens as the government. But the one who has
made the most of this allegation is the government itself. Then it is a dilemma if the
government is using the idea of proving the allegation against the judiciary as propaganda to
undermine the independence of the judiciary in order to make it subservient to the
government as it was once it the era of Smt. Indira Nehru Gandhi. The truth is something
which is hidden in the lowest level of the netherworld and we are living upon the Earth, and
only those who are capable of travelling between our land of peace, security and truthfulness
to the world of torment can give the real position of the truth upon this matter.

However, transparency is something which should be mandatory as to the actions of the

institutions of the State, whether the government or the judiciary. Justice demands it.
Transparency is necessary if the people are to be satisfied. Justice if done should also bear
reasons. Transparency tends to put the reason in front of the mass and discourages
arbitrariness and misuse of authoritative power. The government had introduced NJAC in the
constitution but it was declared unconstitutional by the judiciary. The situation remains the
same as earlier with little changes. The development of the system of appointment of judges
gives a viewpoint of the issue.

COLLEGIUM SYSTEM AND TRANSPARENCY: INDEPENDENCE AND

FAIRNESS

The collegiums system on one hand and transparency on the other hand are meant to ensure
two facets of the Indian judiciary required to maintain justice within the judiciary itself. The
collegiums system arose to make the judiciary independent from the legislature and less
dependent upon the executive, and transparency is an issue that has arose as a reaction against
arbitrary appointment of judges and their transfers. Whereas the former places independence
in the list of attributes of our judiciary, the latter erases any blots upon the face of the system.
The collegium system ensures that the judiciary is not subservient to anyone in this country
and transparency tends to ensure that the independent is not getting tainted with malice and
arbitrariness. The former makes the judiciary free from influences and free from disturbances
while the latter makes it more responsible. The people of this nation often say that the one
who is independent must also have some duties and some responsibilities towards others. The
Indian judiciary, being one of the greatest judiciaries in the world, needs such elements of
freedom as its aspects.

Transparency is against the independence of the judiciary if someone else takes the job of
implementing transparency in its hands, thus transparency itself will be reduced as the
judiciary would become subservient to some extent. It is best served if ensured by the

2
independent itself. If the judiciary itself ensures transparency then all goals are accomplished
and this is the best.

Lord Buddha has said about the middle path, which is not too tough to frighten the seekers
and not too merry-going to make the man useless and unaware of his capabilities, duties and
goals. Today, there is a tussle between the collegium system and transparency, which has
become very difficult as these two don’t seem to reconcile with each other. This non-
reconciliation is because someone else is trying to ensure transparency. The path that takes
care of both the collegium system and transparency is the middle-path for the judiciary. But
just like Buddha has said that the person on this path has to forego its relations with the
material world and walk on this path, no one can walk for him: it is his own path, someone
other can only help; the judiciary has to make these two aspects flowers of the same bounty,
and no one can help it lest such help wound undermine any one of the two. The issue has
been raised by the legislature and this is sufficient. The rest would be done best by the
judiciary itself.

THE COLLEGIUM SYSTEM

What is the Indian Collegium System?

Collegium means ‘association’ in Latin. In India, it refers to an association of judges of the

Court for appointment of judges when we talk about the collegium system in India. It is the
system by which judges in India are appointed by the judges only. As held by the court in
the Three Judges’ Cases(1982, 1993, 1998), a judge is now appointed to the Supreme court
by the president on the recommendation of the collegium — a closed group of the Chief
Justice of India, the four most senior judges of the court and the senior-most judge hailing
from the high court of a prospective appointee. This has given its result in a Memorandum of
Procedure being followed, as a convention, for the appointments.

Background for the development of the collegium system

The Supreme Court of India is an independent institution of India. All the institutions of India
are under the control of the legislature and the executive. The legislature consists of members
of the Rajya Sabha and the Lok Sabha. The executive consists of the President, the Vice-
President, the Prime Minister, the Cabinet of Ministers, the Ministries and the Agencies, and
the Secretaries. The Prime Minister heads the Cabinet of Ministers. All the Ministers of the
Cabinet must be either a member of the Rajya Sabha or the Lok Sabha. Thus, the ministers
are part of both the legislature and the executive. This makes the position of the Ministers
very powerful and influential over the public. This influence was becoming overreaching in
its scope in the time when Smt. Indira Nehru Gandhi was the Prime Minister of India for the
second time. The duty to appoint judges, as has been always, was the duty of the President,
but back in those days the role of the judiciary in this matter was very unsatisfactory and the
parliament had much to deal with. The President, as always, had to act upon the
recommendations of the Council of Ministers, who were part of both the legislature and the
executive. For political aspirations the Ministers have always used their power as they
wanted. Indira Nehru Gandhi is blamed for the Emergency across India. But before this the

3
convention of appointing the senior most judge of the Supreme Court as the new Chief Justice
of India was disobeyed. A judge of the Supreme Court, fourth in seniority, was made the
Chief Justice of India in 1973. This new Chief Justice of India was A N Ray who was made a
judge of the Supreme Court in August 1969. The three judges who were superseded resigned
from their posts in protest. In Habeus Corpus case, CJI Ray and three other judges of the
bench, namely M H Beg, Y V Chandrachud and P N Bhagwati, favoured that the right to life
and liberty of the people were suspended during emergency, but one judge of the, Justice H R
Khanna dissented. Now Justice H R Khanna was superseded and Justice M H Beg was made
the Chief Justice of India in 1977. It was a blot on the judiciary’s autonomy two times. It was
seen that those judges who favour government’s decisions are favoured by the government
and those who by adhering to the principles of justice opined against the government were
dishonoured. What could be a greater humiliation to a person, who has everything and is a
respected person, by insulting him in the public and keeping away from him what he is justly
entitled to get? The judiciary was feeling subservient to the government, which it should not
have been, and the pressure was upon the judges. Then came the era of judicial activism: the
judiciary became aware of its powers and started to criticize the bad laws. When the judiciary
had become confident of itself and its authority to make or abrogate laws, the three well-
known the Judges’ Cases were decided which have given a new shape to the appointment of
Judges and has reduced the involvement of the executive and completely cut-off any chances
of involvement in it of the legislature.

Judges have been being appointed by the President on the advice of the Union Cabinet since
independence. After 1993(the Second judges' Case), the executive collectively or any
Minister, cannot put forward any names to the President, who, now, finally decides on
selecting the person from among the names recommended only by the collegium.
Simultaneously, as held in that judgment, the executive was given the power to reject a
recommended name. However, the name suggested by the collegium cannot be disregarded
for a second time.

Earlier, it was the system that the President appointed the Chief Justice of India on the
recommendation of the Law Commission. The President had absolute power as to appoint
anyone as the Chief Justice of India. But for 22 years after the independence the President
never used this power and the senior-most judge was made the new Chief Justice of India
which had become a tradition from the British era. In 1973 when Smt. Indira Nehru Gandhi
was the Prime Minister Justice A. N. Ray was appointed the Chief Justice of India
superseding three senior judges. The tradition was, thus, broken. The reasons for such an
appointment given by people are that Justice Ray gave decisions according to the mood of the
Central Government and in the cases of that time the other judges had decided against
government’s decision, thereby nullifying government’s decision. The three judges resigned
in protest. This way, the judiciary was made subservient to the legislative and the executive,
thus undermining the independence of the judiciary.

Disputes about judicial appointment had begun before the Constitution was inaugurated.
Kania, when Chief Justice of the Federal Court, wrote to Nehru about making permanent
several acting judges of the Madras High Court. The things he said about one of them, Bashir

4
Ahmed, a Muslim, convinced Nehru that Kania was being ‘unjudicial and indeed improper’,
and he wrote Patel that he doubted that Kania should (in three days) become Chief Justice of
India. Patel replied that he had told Home Secretary Iengar to go ahead with Ahmed’s
appointment, and he told Kania that at this point any adverse action on Kania might be
regarded as communal.1Later that year, appointments to the Madras and Rajasthan High
Courts became controversial. Chief Minister, P. V. Kumaraswami Raja and the Chief Justice
of Madras High Court, P. V. Rajmannar, recommended the Indian government thatoneKoman
of the Indian Civil Services(ICS) be appointed judge of the Madras High Court. Kania, upon
being consulted, expressed that Koman was not of requisite calibre.2

The original judges of the Supreme Court had long experience with judicial independence
under the British regime. The constitution established the bare process for selection of judges
to be appointed to the Supreme Court and the High Courts. The President used to appoint the
judges of the Supreme Court after consultation with the Chief Justice of India and other
Supreme Court and High Court judges as he may wish. For the High Court appointments, he
consulted with the Chief Justice of India, the Chief Justice of the High Court to which the
person is to be appointed, and the governor of the state. Soon it became a controversy
whether the governor may act according to his own discretion or only on the advice of the
Chief Minister while making his recommendations. The governor’s involvement in the
appointment of High court judges might or might not interfere with judicial independence.
The governor of Uttar Pradesh in the year 1953, K. M. Munshi, took the Chief Minister’s
advice in high esteem. Another governor Asaf Ali of Orissa expressed concern that if a
governor were compelled to accept the advice of his ministers, the judge will ‘owe his
appointment to the ministry and , therefore, I cannot conceive how we cannot expect certain
members of the Bar not to seek to ingratiate themselves with the ministry in anticipation’3.
Chief Justice B. P. Sinha recalled instances where governors who ‘had been known to toe the
line of the Chief Ministers’, had tried to block judicial appointments for personal reasons by
making false allegations about the candidate’s communal bias, something which chief
ministers had also done.4 Many such disputes arose until in 1973 the legislature and the
executive crossed upon the independence of the judiciary and the judiciary became more
conscious of its independence. That was the time of judicial activism, and the government
found that it could not do whatever it wanted in whatever manner. So the government
trampled upon the judiciary. Now it was imperative for the judiciary to initiate a storm and
show the thundering power for independence of the judiciary itself. So the system of
appointment of judges changed through the three judges’ case, resulting into the collegium
system.

The Indian collegium system developed from the judgements of three cases of the Supreme
Court which are known as the Three Judges Case. These were

1
Granville Austin WORKING A DEMOCRATIC CONSTITUTION pg. 125-126.
2
Ibid.
3
Granville Austin WORKING A DEMOCRATIC CONSTITUTION pg. 128.
4
Ibid.

5
 1. S.P.Gupta v. Union ofIndia5(also known as Judges’ Transfer Case I)

In this case the supremacy of the executive was asserted. In this case the Supreme Court
unanimously decided agreed with the meaning of the term ‘consultation’ as explained by
the majority in Sankalchand Seth’s case in which it was held that ‘consultation’ meant
full and effective consultation. It is necessary that the constitutional functionaries must
have for its consideration full and identical facts. However, the President is not bound by
it and consultation does not mean concurrence. The ground on which the decision of the
Government can be challenged is only if it is based on mala fide and irrelevant
considerations, that is, when constitutional functionaries gave an opinion against the
appointment.

So in this case the power to appoint judges was the sole power of the executive.
However, Justice Bhagwati observed, “It is unwise to entrust power in any significant or
sensitive area to a single individual however high or important may be the office, which
he is occupying”.

2. Supreme Courts Advocate On Record Association v. Union of India6

In this case a nine judge bench of the Supreme Court, by a 7:2 majority, overruled the
judgement of S. P. Gupta v. Union of India7 . The bench held that in the appointment of
the judges of the Supreme Court and the High Courts the Chief Justice of India should be
given primacy. The matter was brought before the court through a PIL writ petition filed
by an advocate of the Supreme Court seeking relief of filling up vacancies in the higher
judiciary. The appointment of Chief Justice of India shall be made on the basis of
seniority. The court has laid down detailed guidelines governing appointment and
transfer of judges and held that the greatest significance should be attached to the view of
the Chief Justice of India formed after taking into account the views of two senior most
judges of the Supreme Court. The majority held that the initiation of proposal for
appointment in case of the Supreme Court must be by the Chief Justice of India and in
the case of a High Court by the Chief Justice of the High Court, and for the transfer of a
judge of the Chief Justice of the High Court the proposal has to be initiated by the Chief
Justice of India. No appointment of any judge to the Supreme Court or the High Court
can be made, unless it is in consonance with the opinion of the Chief Justice of India,
except in circumstance where strong reasons are present.

3. Re Presidential reference 1 of 19988

In this case a nine judge bench of the Supreme Court held it with one voice that the
recommendation made by the Chief Justice of India on the appointment of judges of the
Supreme Court and the High Courts without going along with the consultation process

5
AIR 1982 SC 149
6
(1993) 4 SCC 441
7
AIR 1982 SC 149
8
AIR 1999 SC 1

6
 are not binding on the government. The court said that the consultation process to be
implemented by the Chief Justice of India requires consultation of plurality of judges,
i.e., the sole individual view of the Chief Justice of India does not constitute consultation.
The majority held that in regard to the appointment of judges to the Supreme Court under
Article 124(2), the Chief Justice of India should consult “a collegium of four senior most
Judges of the Supreme Court” and if “two judges five adverse opinion the Chief Justice
should not send the recommendation to the Government.

The decision in the second Judges’ case has ensured that neither political bias nor personal
favouritism nor animosity should play any part in the appointment of Judges of the Supreme
Court and the High Courts, and thus it has reduced to the minimum individual discretion
conferred upon the Prime Minister and the Chief Justice of India. The selection should be
made as a result of a participatory consultative process in which the executive should have
power to act as a mere check on exercise of power by the Chief Justice of India.

Through these three cases the political element in the selection process has been extinguished
and the executive clement has been reduced to a minimum which needed.

The guidelines laid down in the third case which was that the retiring Chief Justice of India
should consult the four senior most Judges of the Supreme Court was identified in the latest
appointment of Chief Justice of India and this has been made a convention.

Thus, finally the judiciary became independent of any political influences. It was expected
that there would be no partiality in appointment of judges and judgements, but the situation
did not remain pacific for long. The collegium system criticised for lack of transparency.

Why is the collegium system being criticised?

It is alleged that the collegium system is supporting nepotism and corruption in the judiciary,
which is affecting the fate and quality of the decisions.If we see the Justices of the Supreme
Court Justice M. H. Kania, who was the Chief Justice of India from 13th December 1991 to
27th November 1992 was the nephew of Justice HarilalJekisundasKania, the first Chief
Justice of India (see ANNEXURE-1). The situation is not only about this single instance,
rather according to the chart ‘The Progeny Judges Syndrome’ prepared by Adv. Mathews J.
Nedumpura, President of “The National Lawyers’ Campaign For Judicial Transparency and
Reforms” around 64% of the Judges of the Supreme Court appointed are reserved for the
progeny, kith and kin of existing higher ranks of judiciary.9

The Central Government criticised it saying that it has created an “imperium in

imperio(empire within empire)” within the Supreme Court.

The Supreme Court Bar Association blamed it for creating a ‘give and take’ culture, creating
a rift between the haves and have-nots. On one hand, politicians and actors get instant relief
from courts; on the other hand the common man suffers in struggle for years for justice.

9
http://nlcfjtar.blogspot.in/2016/03/the-progeny-judges-syndrome.html, taken on 03-04-18

7
These things are affecting the judgements. Actor Sanjay Dutt gets parole for shooting of his
movies but no common man ever gets the relief given under the law in case he is aggrieved.
The stature of politicians has grown larger than the judiciary, so they are able to vitiate with
the orders. When a government ante to the previous government comes in power the decision
of the court is again affected in a direction opposite to the earlier vitiated orders. An example
of this is the National Herald case, which showed no progress until the UPA regime but has
progressed much in the present government.

Just after independence, it was considered that a judge should be a person who has a juristic
mind and has the calibre to act judicially. So members of the Indian Civil Services were
declared unsuitable for becoming a judge.10 But nepotism has not taken care of the calibre of
the persons becoming judges. The present scenario in which three senior most judges of the
Supreme Court have had attended a press conference in order to criticise the Chief Justice of
India would have not been possible if the judges had not started nudging their noses into
political matters and engrossed their minds with political views. It would not be correct to say
that either the Chief Justice of India or the three senior most judges have done this but as the
wind has moisture up to many miles from the place where rain is falling there is some sort of
differences in the viewpoints of the judges, i.e., it has been tainted with political colours and
has taken a ‘not white and black colour combination’ but a different hue. This is obvious, as a
retired judge of the Supreme Court wants to become the judge of a tribunal, for which he
must have connections with political leaders and thus he must have political affiliations.
Below are two lists from the web from which I have drawn these inferences:

THE PROGENY JUDGES SYNDROME11

 Mr. Justice T.S. Thakur- Chief Justice of India – Son of Shri D.D. Thakur, a former
judge of J&K High Court.
 Mr. Justice Jagdish Singh Khehar- Judge, Supreme Court- Practiced as Junior of former
Chief Justice of Kerala High Court , Justice Jawahar Lal Gupta.
 Mr. Justice Deepak Mishra- Judge of Supreme Court (now Chief Justice of India) –
Nephew of Ex Chief Justice of India and 1st chairman of National Human Rights
Commission Justice Raghunath Mishra.
 Mr. Justice Fakkir Mohamed Ibrahim Kalifulla, Judge, Supreme Court, son of late
Thiru.Justice M. Fakkir Mohamed
 Mr. Justice Ranjan Gogoi, Supreme Court, son of late Keshab Chandra Gogoi, former
Chief Minister of Assam
 Mr. Justice Madan B. Lokur, Supreme Court, son of Justice BhimjiNarayanaraoLokur,
Ex-member of Law Commission and former judge of the Allahabad High Court
 Mr. Justice Pinaki Chandra Ghose, Supreme Court, son of late Justice Sambhu Chandra
Ghose

10
Granville Austin WORKING A DEMOCRATIC CONSTITUTION, Part I: The Great Constitutional Themes
Emerge, 1950-66, ch. 5: The judiciary: ’Quite Untouchable’.
11
http://nlcfjtar.blogspot.in/2016/03/the-progeny-judges-syndrome.html, taken on 03-04-18

8
 Mr. Justice A.K. Sikri, Supreme Court, son of Ex-CJI SarvMittraSikri
 Mr. Justice S.A. Bobde, Supreme Court, son of legal luminary and former AG of
Maharashtra Arvind Bobde.
 Mr. Justice Shiva Kirti Singh, Supreme Court, son of late Shambhu Prasad Singh, a
senior most judge of Patna High Court, maternal grandfather B.P. Sinha was the Chief
Justice of India from 1959 to 1964
 Mr. Justice ChockalingamNagappan, Supreme Court, Practiced as Junior Advocate under
Sri K. Prasaran, former Attorney General of India
 Mr. Justice R.K. Agrawal, Supreme Court, practiced under former Advocate General of
UP
 Mr. Justice Arun Mishra, Supreme Court, son of Justice H.G. Mishra, former Judge of
M.P. High Court
 Mr. Justice R.F. Nariman, Supreme Court, son of Mr. Fali S. Nariman, late Senior
Advocate of the Supreme Court
 Mr. Justice UdayUmeshLalit, Supreme Court, son of justice U.R. Lalit, former additional
judge of the Delhi High Court
 Mr. Justice Amitav Roy, Supreme Court, son-in-law of late Salil Kumar Dutta, Judge of
the Calcutta High Court

Justice Jayant Patel was at the second position in Karnataka High Court and the Chief Justice,
Subhro Kamal Mukherjee was retiring on October 9, 2017. The Supreme Court proposed to
transfer him from the Karnataka High Court to the Allahabad High Court. On being
transferred he would have become a judge at the third position in the Allahabad High Court.
Justice Jayant Patel resigned from his court. Transfer at this point certainly means that there is
some within the Supreme Court to not let Justice Jayant Patel become the Chief Justice of
Karnataka High Court.

TRANSPARENCY

The issue of bringing transparency in the Indian Judges’ appointment system has come up
due to the criticism of the collegium system. As against the collegium system, which is
proving ineffective in curbing the corruption menace, the parliament introduced, by virtue of
the Constitution (Ninety-Ninth) Amendment Act, the provision of appointment of judges by
the President on the recommendation of the National Judicial Appointments Commission in
Article 124 (2). The structure of this commission has been given in Article 124A. The
provision provides for inclusion of the following in the committee-

 Chief Justice of India,

 two other senior judges of the Supreme Court next to the Chief Justice of India,
 the Union Minister of Law and Justice, and 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 People or the leader of single largest Opposition Party in the
House of People where there is no such Leader of Opposition. Among these two persons
one shall belong to the Scheduled Castes, Scheduled tribes, Other Backward Classes,

9
 Minorities or Women. The two eminent persons shall be nominated for a period of three
years and shall not be denominated again.

Also, the act or proceedings of the National Judicial Appointments Commission could not be
questioned or be invalidated merely on the ground of the existence of any vacancy or defect
in the makeup of the commission.

The functions of the commission were-

i. The commission would 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.
ii. The commission would recommend transfer of Chief Justices and other Judges of High
Courts from one High Court to any other High Court.
iii. The commission would ensure that the persons recommended for the purposes of the above
two are of ability, merit and other criteria mentioned in the regulations related to the act.

The National Judicial Appointments Commission Bill, 2014, had laid down some procedures
for the selection of the Judges. For the selection of the Chief Justice of India, the commission
should recommend the senior-most judge of the Supreme Court for appointment as Chief
Justice of India. This is provided he/she is considered fit to hold the office.However, this
must be according to the knowledge one possess instead the age of the person. For other
Supreme Court Judges, the commission should recommend names of persons based on their
ability, merit and other criteria specified in the regulation. Further, the commission shall not
recommend a person for appointment if any two of its members do not agree to such
recommendation.

For the selection of Chief Justices of High Courts,the commission should endorse a Judge of
a High Court to be the Chief Justice of a High Court on the basis of seniority. The ability,
merit and other criteria of suitability would also be considered. For the appointment of other
High Court Judges, the commission should seek nominations from Chief Justice of the
concerned High Court for appointments of High Court Judges or forward a list of such names
to the Chief Justice of the concerned High Courts for his/her views. The Chief Justice of the
High Court shall consult two senior most judges of that High Court and any other judges and
advocates as specified in the regulations. The Commission shall elicit the views of the
Governor and Chief Minister of the state before making recommendations. The Commission
shall not recommend a person for appointment if any two members of the Commission do not
agree to such recommendation.

Fate of NJAC
A writ petition was filed in the Supreme court in 201512 challenging the validity of the NJAC
and Article 124A inserted though the 99th amendment of the constitution. The matter was
referred to a constitution bench consisting of Justice J.S. Khehar, Justice M.B. Lokur, Justice
Kurian Joseph, Justice A K Goel and Justice J Chelameshwar. The Constitution Bench of the
Supreme Court in a collective order on 16 October 2015 declared the NJAC unconstitutional

12
Writ petition (civil) no. 13 of 2015

10
on the ground that it is against the independence of the judiciary which is given under Article
50 of the constitution.

The NJAC Act had the support of all the members of the Rajya Sabha and the Lok Sabha, a
thing which is rare and the Supreme Court declared this Act invalid. The judiciary has
showed that it is independent of the executive and the legislature. But the issue of corruption
remained the same. But in the same judgement, the Supreme Court asked for opinions from
both the sides of the case for increasing transparency in the working of the collegium, the
fixing of the eligibility criteria for a person to be considered suitable for appointment as a
judge, process to receive and deal with complaints against judges without harming the
independence of the judiciary, and whether a separate secretariat is required, and if so its
functioning, composition and powers.

Whether NJAC was free from all possible vices?

Apart from hampering with the independence of the judiciary, there is scope of connivance in
the NJAC also. The inclusion of a Union Minister and two eminent persons poses great threat
to the impartial appointments of judges. The political influence would be more if political
persons are included in the committee. Moreover, the provision that if two members of the
commission would disagree the recommendation of the Chief Justice of India would not be
done, as also we can see there is a Union Minister and two other persons who will be most
probably inclined towards the political persons, the decisions of the commission would have
been inclined towards the political appointments.

What is the position of transparency in the appointment of judges in the

Indian judiciary?
It is not so that the Supreme Court has not accepted the allegations against it and does not pay
any heed to the issue of transparency, but rather it has asked both the parties of the writ
petition13 on the validity of the NJAC for giving suggestions.

On October 03, 2017 the Supreme Court passed a resolution in regard to transparency. I
attach this resolution in the Annexure as Annexure-2. After one week of the criticism of the
proposal of shifting Justice Jayant Patel out of Karnataka High Court to Allahabad High
Court that came in last week of September 2017, the Supreme Court collegium started posting
all decisions on judicial appointments and transfer on its website to ensure transparency.
Actually, it is the response of the Collegium against the criticism of it for the inappropriate
transfer proposal of Justice Jayant Patel.A proposal for appointment of judges to the Kerala
High Court has been attached to the annexure as Annexure-3. A proposal for transfer of a
judge from the Gauhati High Court to the Kerala High Court has also been attached to the
annexure as Annexure-4. It is clear from the transfer proposal that the collegium is not
implanting any principle of transparency in the proposal. It is not giving any other
information about the Judge of the Gauhati High Court.

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Writ petition (civil) no. 13 of 2015

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Transparency has thus increased but it is not up to the mark. The Judiciary shall do something
to increase transparency in the appointment process. There is a need to further increase
transparency in the system.

What should be done?

The current issue of transparency in appointment of judges is a very important issue that
needs to be settled by implanting appropriate measures by the judiciary. Some of the
measures may be-

The proposal for appointment and transfer of a judge shall have the history of the person. The
proposal shall give information about his career, his calibre and his decisions.
The proposal for appointment and transfer shall clearly show the age of the person and his
position in the court in which he is currently serving as a judge.
The proposal shall also clearly mention the relationship of the person with any other judge of
the higher judiciary or prominent person of the nation.
The proposal shall also clarify the reasons as to the advantages the person has over others,
which serves as a reason for his appointment to the particular place in spite of others.
The proposal shall contain the brief of the important case decided by such a person.

CONCLUSION

The collegium system ensures independence of the judiciary. The executive and the
legislature cannot affect the judgements to a greater extent. It was contemplated at the final
decision of the three Judges’ case that the political element is eliminated from the
appointment of Judges and the executive element is reduced to the minimum. But it has not
been so. The judiciary continues to be influenced and sometimes swayed away by political
views. Thebenefits of the judges and the government are also taken good care of. Judges
manage to bargain with culprits for private gains. This system is also not worthy. The public
looks towards the judiciary when the government crosses its limits or the musclemen become
politically supported. The appointments are in the root of the corrupt system. If it is corrected,
the judges with real calibre will hold important offices and deliver impartial justice. Justice is
what the courts deliver, but it is tainted with political inclinations. The judges of the higher
judiciary are eager to get the offices of judges of tribunals. So they are politically inclined in
their judgements. The NJAC was not just a measure to curb this corruption and bring about
transparency in the system; rather it was a tool to control the judiciary. However, it good that
it is invalidated. The Supreme Court has accepted that there is a need for transparency, and so
we have a ray of hope coming from a hole in a grey room; the room is grey and not black
because of the hope that peace and justice will come one day through this hole along the path
of the ray, the only thing we have is a ray of hope and hope requires waiting and longing.

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