Critical Analysis of

Appointment of Judges
Submitted By:
Qazi Sami Uddin
B.A.LL.B 4th year
Invertis University

Introduction

The Constitution of India provides for a single integrated judicial system with the Supreme Court
at the apex, High Courts at the middle (state) level and District Courts at the local level. It also
provides for an independent and powerful judicial system. Judiciary in India acts as the guardian,
protector of the Constitution and the fundamental rights of the people.1

Salient Features of Indian Judiciary1

1. Single and integrated judicial system: In India there is a single judicial system unlike
U.S.A., where a dual type of judicial system exists.

2. Independence of judiciary: The Constitution of India makes judiciary truly independent.

It provides for:

(i)Appointment of judges by the President

 (ii) High qualifications for appointment as judges,

(iii) Removal of judges by a difficult method of impeachment,

(iv) High salaries, pension and other service benefits for judges,

(v) Independent establishment for the Judiciary, and

(vi) Adequate powers and functional autonomy for the Judiciary.

All these features together make the Indian Judiciary an independent judiciary.

3. Judiciary as the Interpreter of the Constitution: The Constitution of India is a longest

written and enacted constitution. The right to interpret and clarify the wordings of the
Constitution has been given to the Supreme Court. It is the final interpreter of the provisions of
the Constitution of India.

4. Judicial Review2: The Constitution of India is the supreme law of the land. The Supreme
Court acts as the interpreter and protector of the Constitution. It is the guardian of the
fundamental rights and freedoms of the people. For performing this role, it exercises the power
of judicial review. Through judicial scrutiny the Supreme Court gets the power to determine the
constitutional validity

1. Judiciary in India: 11 Salient Features of Indian Judiciary By K. K Ghai

[http://www.yourarticlelibrary.com/essay/judiciary-in-india-11-salient-features-of-indian-judiciary/40371/]

2. Judiciary in India: 11 Salient Features of Indian Judiciary By K. K Ghai

[http://www.yourarticlelibrary.com/essay/judiciary-in-india-11-salient-features-of-indian-judiciary/40371/
of all laws. It can reject any such law which is held to be unconstitutional. High Courts also
exercise this power.

5. High Court for each states as well a Provision for Joint High Courts: The Constitution
lays down that there is to be a High Court for each states. However, two or more states can, by
mutual consent, have a Joint High Court.

6. Supreme Court as the Arbiter of legal disputes between the Union and States: The
Constitution gives to the Supreme Court the jurisdiction in all cases of disputes:

(i) Between the Government of India and one or more states,

(ii) Between the Government of India and any state or states on one side and one or more
states on the other, and

(iii) Between two or more states.

7. Guardian of Fundamental Rights3: Indian judiciary acts as the guardian of fundamental

rights and freedoms of the people. People have the Right to Constitutional Remedies under
which they can seek the protection of the courts for preventing violation of their rights. The
Supreme Court and the High Courts have the power to issue writs for this purpose under article
32 and 226 respectively.

8. Separation of Judiciary from the Executive: The Constitution of India provides for a
separation between the judiciary and the other two organs of the government. The judiciary is
neither a branch of the executive nor in any way subordinate to it. The judicial administration in
India is organized and run in accordance with the rules and orders of the Supreme Court.

9. Open Trial: The courts in India are free. They conduct open trials. The accused is always
given full opportunity to defend himself. The state provides free legal aid to the poor and needy.

10. Judicial Activism: Indian Judicial System is becoming more and more active. The Supreme
Court has been coming out with judicial decisions and directives aimed at active protection of
public interest and human rights. Judiciary has been giving directives to public officials for
ensuring a better security to the rights of the public. The Public Interest Litigation system has
been picking up. The system of Lok Adalats has also taken a proper shape and health.

3. Judiciary in India: 11 Salient Features of Indian Judiciary By K. K Ghai

[http://www.yourarticlelibrary.com/essay/judiciary-in-india-11-salient-features-of-indian-judiciary/40371
11. Public Interest Litigation System4: Under this system the courts of law in India can initiate
and enforce action for securing any significant public or general interest which is being adversely
affected or is likely to be so by the action of any agency, public or private.

Under it any citizen or a group or a voluntary organization, or even a court suo moto, can bring
to notice any case demanding action for protecting and satisfying public interest.

It provides for an easy, simple, speedier and less expensive system of providing judicial relief to
the aggrieved public. With all these features, the Indian Judicial System is an independent,
impartial, free, powerful judicial system.

Statement of Problem:

Unlike other countries India is the only country where judges select themselves, determine their
own transfers and also discipline themselves. Moreover this process is nowhere accountable and
can simply be termed as the ‘Tyranny of unelected’. And this system also violates the
parliamentary supremacy.

Objective

The object of my study is to answer the following question:

1. What is collegium system?

2. How the appointment of judges are made in other countries?
3. The judicial activism regarding appointments?
4. The National Judicial Appointment Commission?
5. Suggestions to reform the collegium System?
6. Conclusion

Hypothesis

The author view regarding this paper is that the current collegium system is
nothing but a heap of nepotism corruption and favoritism it should get into a

4. Judiciary in India: 11 Salient Features of Indian Judiciary By K. K Ghai

[http://www.yourarticlelibrary.com/essay/judiciary-in-india-11-salient-features-of-indian-judiciary/40371/]
drastic reformation and the struck down of NJAC by the court although some what
it hinder

4. Judiciary in India: 11 Salient Features of Indian Judiciary By K. K Ghai

[http://www.yourarticlelibrary.com/essay/judiciary-in-india-11-salient-features-of-indian-judiciary/40371/]
the independence of judiciary but in contrary it makes the judiciary liable to the
common people. And moreover judiciary always has a right of judicial review if
anything goes which ultra vires the provisions of the constitution of India. So there
should some judicial appointment commission for the appointment of judges.

Appointment of Judges in Various Countries

Judiciary is one of the most important organ of the government it not only provide relief to the
human society but also control the arbitrary act of the administration. It is true that legislature
has the right to make law but it is not an absolute one.

In Indian there are various issues regarding the appointment of judges. But first of all check out
the working procedure of appointment of judges in various civilized and developed countries.

In United Kingdome5

In UK the appointment in higher judiciary is made on the recommendation of Lord Chancellor

with Lord Chief Justice. But after the constitutional reform act 2005 it got completely changed.
The first and most important recommendation was the setting up of the Supreme Court of UK so
that the role of judiciary gets separated. The part 4 of the act mandates for the formation of
judicial appointment commission which consists of ‘lay’ chairman (“lay” means someone who
has never held judicial office or practicing lawyer) and 14 other members constituting 5 judges, 2
practicing lawyers, 5 lay members, 1 legal tribunal member and 1 lay magistrate.

The Lord Chancellor has given the powers to issue guidelines for the commission. In case of
senior appointment a special selection panel is formed including senior most judges, Lord Chief
Justice, chairman of the commission and a layman from the commission. They then make a
report as per approved by Lord Chancellor. Lord Chancellor has the power to reject or request
for reconsideration of the selected name but not arbitrarily it should be only on the evidence that
the particular candidate is not suitable.

In Australia 6

5. http://www.lawteacher.net/free-law-essays/constitutional-law/review-of-judicial-appointments-india-law
essays.php

6. www.ag.gov.au/cca http://www.lawteacher.net/free-law-essays/constitutional-law/review-of-judicial-appointments-india-
law essays.ph
In 2008 Australia implement new process for the appointment of judiciary. Attorney General the
first Law officer of the country is responsible for recommending judicial appointment.

Appointment process in family court and federal magistrate court:

First of all vacancies are identified then an advertisement is made on the official website of
Attorney General department then Attorney General would write letter to the various heads of
the court and tribunals seeking the nominations.

Attorney General will constitute an advisory panel which would take the interview of nominated
candidates and submit the report of suitable candidates to the Attorney General which he submit
to the prime minister for cabinet approval and after approval recommendation is made to
Governor General for the appointment.

Appointment in High Courts

High Court is the apex of Australia’s judicial system in the appointment Attorney General would
not place any notice rather he would consult with other interested authorities including State
Attorneys-General, Chief Justice of the High Court, Justices of the High Court, State and
Territory Chief Justice then Attorney General would write letter to the PM for cabinet approval
and then Governor General would appoint. Duration for the Judges in Australia is 70 yrs. of age.

IN United States7

In America president has full description regarding the appointment of judges but he may not
arbitrarily act in the appointment he may consult with the following people regarding the
appointment Members of the Senate and House of Representatives, political leaders of the
President`s own party from the nominees home state, Governors and Mayors, members of the
court where the appointment is being made, public and private groups which lobby for the
selection of a candidate of their choice.

In International Court of Justice8

7. http://www.lawteacher.net/free-law-essays/constitutional-law/review-of-judicial-appointments-india-law
essays.php

8. http://www.youtube.com/appointmernt of judges in india

The ICJ is situated in Netherland Hague in this 15 members were elected for a staggered term of
9 years. Which initially means that 5 judges are elected every 3 years to ensure the continuity of
Judges in the court are elected by the UN General Assembly and the Security Council. In order
to be elected, a candidate must receive an absolute majority of the votes in both bodies. The
noteworthy feature of the ICJ is that no two judges of the same country be there as a judge

Composition of collegium system

The collegium of the Supreme Court is headed by the Chief Justice of Indian and four senior
most judges of the court. A High Court collegium is led by its Chief Justice and four other senior
most judges of that court. Names recommended for appointment by a High Court collegium
reaches the government only after approval by the CJI and the Supreme Court collegiums.

Currently the Collegium of the Supreme Court is consists of;

1. Chief Justice Deepak Mishra

2. Justice Jasti Chelameswar

3. Justice Ranjan Gogoi

4. Justice Madan Lokur

5. Justice Kurian Joseph

Appointment Procedure

In 1861 when earliest court were estamlished judges were appointed by British Monarch and
held office at her majesties pleasure. After the government of india act 1935 the retirement age
of judge is fixed at 65 years but queen has the right to dismiss the judge if involved in
unacceptable practice. And after independence in India the hierarchy of judicial system plays an
important role in maintaining the independence of judiciary. Supreme Court is the highest court
for justice. Then, there are High Court and District Courts in every states. Then, there are
People’s courts known as Lok Adalats. Judges of the Supreme Court and High Courts are
appointed by the President under Articles 124(2) and 217 of the Constitution. The President is
required to hold consultations with
 such of judges of the Supreme Court and of the High Courts as he may deem necessary.
According to Dr BR Ambetkar9 Solely not the president and not the CJI would be responsible for
the appointment of judges it should be only on the consultation of both.

Article 124(2) says: “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. If in the case of appointment of a
Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

And Article 217 states: “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.

How Collegium System Works

The Collegium sends the recommendations of the names of lawyers or judges to the Central
Government. Similarly, the Central Government also sends some of its proposed names to the
Collegium. The Central Government does the fact checking and investigate the names and
resends the file to the Collegium. Collegium considers the names or suggestions made by the
Central Government and resends the file to the government for final approval. If the Collegium
resends the same name again then the government has to give its assent to the names. But time
limit is not fixed to reply. This is the reason that appointment of judges takes a long time. It is
worth to mention here that there are 395 posts of the judges are vacant in the High Courts and 7
posts in the Supreme Court. There are 146 names are pending for approval between the Supreme
Court and Central Government since last two years. Out of these 146 names 36 names are
pending with the Supreme Court Collegium, while 110 names are yet to be approved by the
Central Government.

Controversy regarding the collegium

9. http//:www.thehindu.com/justice in judicial appointment

In 1973, Justice A.N. Ray10 who was fourth in the order of seniority was appointed as the Chief
Justice of India. Thus, three senior judges were bypassed, who then resigned from the Court in
protest [Justice Shelatt, Justice Grover, and Justice Hegde]. The government invoked the Law
commission’s recommendation [14th Law Commission] which says that that a Chief Justice
should not an able and experienced judge but also a competent administrator and, therefore
succession of the office should not be regulated by mere seniority.

The same story was repeated in 1976, The Government appointed Justice Beg 11 as Chief Justice
by-passing Justice Khanna, who was senior to him at that time Justice Khanna wrote in his
autobiography that because of his involvement in Habeas Corpus case he was not appointed as
CJI.

As per the constitution, as held by the court in the three judges cases – (1982, 1993, 1998), a
judge is 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.

Following are the three cases:

1. S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case)

2. Supreme Court Advocates-on Record Association vs Union of India - 1993

3. In re Special Reference 1 of 1998

First Judges Case:In S P Gupta Vs Union of India, 1981 12, the Supreme Court by a majority
judgment held that the concept of primacy of the Chief Justice of India was not really to be found
in the Constitution. It held that the proposal for appointment to a High Court can emanate from
any of the constitutional functionaries mentioned in Article 217 and not necessarily from the
Chief Justice of the High Court. The Constitution Bench also held that the term “consultation”
used in Articles 124 and 217 was not “concurrence” meaning that although the President will
consult these functionaries, his decision was not bound to be in concurrence with all of them.
The judgment tilted the balance of power in appointments of judges of High Courts in favor of
the executive.

10. .http://www.economictimes.indiatimes.com/two hours given to justice an ray

11. http//www.firstpost.com/a look back to hr Khanna who stood up against Indira ghandhi
12. http//www.lawteacher.net/judiciary of hope and aspirations.php
Second Judges Case: In Supreme Court Advocates-on-Record Association Vs Union of
India, 199313, a nine judge Constitution Bench overruled the decision in S P Gupta case and
devised a specific procedure called ‘Collegium System’ for the appointment and transfer of
judges in the higher judiciary. Underlining that the top court must act in “protecting the integrity
and guarding the independence of the judiciary”, the majority verdict accorded primacy to the
CJI in matters of appointment and transfers while also ruling that the term “consultation” would
not diminish the primary role of the CJI in judicial appointments. “The role of the CJI is primal
in nature because this being a topic within the judicial family, the executive cannot have an equal
say in the matter. The collegium system, the court said that the recommendation should be made
by the CJI in consultation with his two senior most colleagues, and that such recommendation
should normally be given effect to by the executive. It added that although it was open to the
executive to ask the collegium to reconsider the matter if it had an objection to the name
recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive
was bound to make the appointment.

Third Judges Case: In 199814, President K R Narayanan issued a Presidential Reference to the
Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution
(advisory jurisdiction). The question was whether “consultation” required consultation with
several judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself
constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the
functioning of the Coram for appointments and transfers this has come to be the present form of
the collegium, and has been prevalent ever since. This opinion laid down that the
recommendation should be made by the CJI and his four senior most colleagues, instead of two.
It also held that Supreme Court judges who hailed from the High Court for which the proposed
name came, should also be consulted. It was also held that even if two judges gave an adverse
opinion, the CJI should not send the recommendation to the government .Ever since, the
collegium has been making recommendations for appointments and transfer of judges.

National Judicial Appointment Commission

13. http://www.indiankanoon.org/the second judges case

14. http://www.indiankanoon.org/the third judges case
On 16th October 2015 with a ratio of 4:1 the Supreme court constitutional bench in the fourth
judges case of Supreme Court Advocates-on-Record-Association and Ors.Vs Union of India
(UOI)15 including the then chief justice of India Justice Jagdish Singh Khehar, Justice J
Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel
struck down the NJAC on the ground that it violates the basic structure of the constitution i.e. the
independence of Judiciary. The National Judicial Appointments Commission (NJAC) is a
constitutional body proposed to replace the present Collegium system of appointing judges. The
NJAC was established by amending the Constitution [Constitution (Ninety Ninth Amendment)
Act, 2014] introduced on 11th august 2014 by the union Law Minister Ravi Shanker Prasad and
was passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
Alongside, the Parliament also passed the National Judicial Appointments Commission Act,
2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures
and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional
Amendment Act came into force from April 13, 2015. Following which the article 124 A B and
C were added 124 A and B defines NJAC its members and duties while 124 C empowers the
parliament to make laws in feature to regulate the procedure

The Constitution of NJAC16

It will consist of six people — the Chief Justice of India, the two senior most judges of the
Supreme Court, the Union Law Minister, and two ‘eminent persons’. These eminent persons are
to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime
Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-
nomination. The Chief Justice and two senior-most judges for appointment to a judicial post if
they do not approve of it. Once a proposal is vetoed by two members of the commission, it
cannot be revived. At the same time, the judges require the support of other members of the
commission to get a name through. However Supreme Court has acknowledged that the
collegium system of judges appointing judges is lacking transparency and credibility which
would be rectified/improved by the Judiciary. Arguments against NJAC were based on the three
landmark judgments that safeguarded the collegium system, namely, the first, and second and

15. http://www.indiankanoon.org/ supremecourt on records association vs union of india2013

16. http://www.thehindu.com/webexclusives/quantitative-metrics-in-the-collegium-system/article7888463.ece
third judges’ cases. The first judges case decided in 1981 gave power to the President to refuse
the judges’ names recommended

15. http://www.indiankanoon.org/ supremecourt on records association vs union of india2013

16. http://www.thehindu.com/webexclusives/quantitative-metrics-in-the-collegium-system/article7888463.ece
by CJI. Twelve years later, this position was reversed by a decision of Justice J.S. Verma under
the second judges case which extended primacy to the judiciary. In 1998, this principle was
cemented by the Supreme Court, laying down guidelines for effective working of the collegium
system. They argued that the right to appointment of judges lay at the core of the independence
of the judiciary and formed a part of the basic structure of the Constitution. The landmark
judgments were binding and could not be over-ruled by amending the Constitution.

Supporting National Judicial Appointments Commission: --- During the hearing of the bunch
of petitions challenging the constitutionality of the National Judicial Appointments Commission
(NJAC), the then Attorney General Mukul Rohatgi had told the five-judge Bench of the Supreme
Court that the collegium system was “dead and buried forever”, and wouldn’t be revived even if
the Bench quashed the NJAC. The independence of the judiciary is protected under the basic
structure through various facets and is not drawn from the appointment of judges alone. “The
Constitution has devised a structure of power relationships with checks and balances wherein
limits are placed on the power of every authority or instrumentality under the constitutional
scheme,” said attorney general Mukul Rohatgi.

The collegiums system has come under a fair amount of criticism. After the Law commission
report in 2009 which says favoritism and nepotism prevails in collegium also. Various other
arguments in support of NJAC are as follows:

1. The basic structure of the constitution which was believed to be defeated by NJAC, remains
intact because its chairman is the Chief Justice of India and this safeguards and upholds the
independence of judiciary from executive and thus, separation of powers is maintained.

2. NJAC is good for a democratic country as in no other democratic country; the judges are
allowed to appoint the judges. Their role is to ensure that peace and justice is maintained in the
country. Democracy means law is made by elected representatives and not judges.

3. Appointment and transfer of judges requires a thorough personal and professional background
check of the prospective appointees which can be burdensome for the judiciary without a
secretariat or intelligence-gathering mechanism.

4. In the Collegium System, seniority of the HC judge for the post of SC judge is often placed
above several talented junior judges and advocates.
5. Half the members of NJAC will be judges, which does not diminish the role of judiciary but
only counter balances it by giving power to the executive and politicians

Statements against National Judicial Appointments Commission: --- The collegium system
for the appointment of judges came into exsistence in 1993, has left the legal fraternity somewhat
divided. The case has brought together respected names of the legal fraternity such as Ram
Jethmalani, Harish Salve, Fali Nariman, T.R. Andhyarujina, Anil B. Divan, K.K. Venugopal and
Arvind P. Datar under the same roof, arguing against the validity of the newly formed
constitutional body. A few members of the fraternity firmly believe the collegium system is
"unconstitutional and anti-democratic" and sense of favourtism nepotism and corruption exsists
where judges are appointed through "secret soundings and cronyism" while others say that the
government wants to "interfere" in the independence of the judiciary and it needs to be resisted.

Justice Khehar and Lokur raised questions such as:

“Would such persons have to be jurists? If not, how would they have access to information to
make a sound decision?”

“The possibility of abuse of veto power is extremely high as these two persons could together
strike out an otherwise valid appointment.”

“What if such person is found to be shady? What is the procedure of removal of such person?”

Justice Kehar Stated;-

“ I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires
the provisions of the Constitution, because of the inclusion of the Union Minister in charge of
Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view,
impinges upon the principles of “independence of the judiciary”, as well as, “separation of
powers”. It has also been concluded by me, that clause (d) of Article 124A(1) which provides for
the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of
the Constitution, for a variety of reasons. The same has also been held as violative of the “basic
structure” of the Constitution.”

Justice Joseph Kurien in his judgment started out with the Latin maxim:
“Entia Non Sunt Multiplicanda Sine Necessitate (Things should not be multiplied without
necessity)”. Complimenting his brother judges‟ “masterpiece” judgments, he wrote a very short
“leaving all legal jargons and using a language of the common man, the core issue before us is
the validity of the Constitution 99th amendment”, holding: Direct participation of the Executive
or other non-judicial elements would ultimately lead to structured bargaining in appointments, if
not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary,
however remote be the possibility, is to be nipped in the bud.”

According to Justice Roberts, “Court has no power to gerrymander the Constitution.

Contextually, I would say, the Parliament has no power to gerrymander the Constitution. The
Constitution 99th amendment impairs the structural distribution of powers and hence it is
impermissible.

Professor Faizan Mustafa, vice chancellor of NALSAR University of Law, Hyderabad, told
“The independence of the judiciary is not the private right of judges; it is the right of citizens.
Ultimately, judicial legitimacy rests on public confidence in the courts. Appointment of judges is
seen as a crucial mechanism to achieve judicial independence. Judges must be independent of
executive, senior judges and in their ideology.”

Advocate Shahid Ali, senior lawyer at the Delhi High Court, says the “attempt to interfere in
the independence of judiciary through the NJAC will prove to be fatal for the democracy and
detrimental for fundamental rights guaranteed in the Constitution”

Suggestions for the reformation

Appointment of Judges is a crucial process so it should be done with utmost care and caution.
After the recent judgments of Supreme Court on NJAC. The old collegium system again came
into existence keeping in view the past experience of the working of the collegium system,
reforms are needed to be brought in other respects too. More importantly to the working of the
collegium system and the procedure it follows needs a drastic change.

Some of the suggestions are as follows:

There should be some quantitative matrices in the candidate as because thousands of Indians
possess those qualifications as envisaged by the constitution. Some of the qualifications may be
what type of cases the judge handle, how many adjournments have been granted by him on an
average, the ratio of cases heard and disposed of, average duration of cases handled, number of
judgments reversed in appeal. Such matrices would help in more transparent and trustworthy
process seniority should not be the only criteria.

All the meetings of the collegium should be video recorded and the opinion of each judge should
be recorded separately and covered by various news channels. And people should get these
recording under the right to information act. Individual supporting a particular judge in transfer
selection or elevation should give in writing to the chairman of the collegium and the
recommended person must be scrutinized by other judges also.

The income and assets of the judges should be disclosed to CAG so that he may insure that the
may not indulge in any unfair practices and for whom the CAG raised red flag would be
transferred to other courts at the earliest.

The judges who are found lobbying engaged in politics must be disqualified from the collegium
for three years and if repeated permanently barred.

Vacancies in the Supreme Court and the High Courts shall be announced in advance. As stated
earlier, there shall be an open invitation for all eligible candidates to apply in the prescribed
format. Nomination of eligible candidates may also be invited

A study by Abhinav Chandrachud reveals that of all the appointments made between1950 –
2011, 97.9% of the judges are appointed from the first category that is why HC judge with 5
years of experience only four judges from the second category which is 10 years standing as HC
advocate and none from the third category which is distinguished jurists in the opinion of
president of India. This is also a matter of serious concern and unfortunately not much attention
is paid on it.

At the Supreme Court level a full-fledged secretariat is required since the Supreme Court
collegium (its composition varies when comes to the appointment of High Court Judges) has a
decisive role to play in appointing judges to both High Courts and the Supreme Court. And in
furtherance judges of the SC should take leave in deciding the appointment of judges for next
year.
The removal of judges is a very difficult procedure so it is the duty of the collegium to ensure
proper inquiry of each and every candidate and if it vacant do then it may delegate this power to
a commission which would examine complaints and adverse reports. Committee may consists of
sitting or retired judges of Supreme Court and two eminent persons.

The practice of providing regional and demographic representation in the Supreme Court shall
formally be admitted and their extent would be earmarked. The percentage of judges selected to
be selected from each of the three categories mentioned in the Constitution shall also be
announced.

Conclusion

The appointment of judges is an important aspect of judicial independence which requires that in
administering justice judges should be free from all sorts of direct or indirect interference or
influences. This freedom of judges has a close relationship with judicial appointment because the
appointment system has a direct bearing on the impartiality, integrity and independence of
judge’s independence. Collegium system in India is the evolved through the judgments of the
Supreme Court and not by the act of parliament. Government by introducing the NJAC try to
give politicians and civil society a final say in the appointment of judges to the highest courts.
Which is struck down by the court on being ultra-virus of the constitution of India. So now the
parliament is busy preparing an MOP (Memorandum of Procedure) to guide feature appointment
and ensures more transparency in the appointment process. Supreme Court or the High Court or
any court for that matter, the judges have the authority to give decisions on the cases which
finally affect the common people. And not only the common people in the country, any citizen,
rich or poor, middle classed or upper classed, pursue justice through judiciary only. So people
should have the knowledge or at least the right towards the selection and appointment of the
judges.

As Dr BR Ambetkar says “However good a constitution may be , it is sure to turn out bad
because those who are called to work it happens to be a bad lot. However bad a constitution
may be, it may turn out to be good because of those who are called to work it happened to be a
good lot”