Historical Evolution of the Methods of Appointment of Judges of the

higher judiciary
Appointment of judges, 1950-1973
After the Independence, India adopted the constitution in 1950. There is no any provision in the
constitution for the appointment of the chief Justice of India. There was a convention that senior most
judge of the Supreme Court was usually appointed as the as the chief justice. This precedent was broken
in 1973 when the government appointed Justice A.N. Ray as the chief justice, suspending 3 judges senior
to him of the court. This violated the convention of appointment of judges. The appointment was
challenged in the Delhi High Court for quo warranto under Article 226, but it was quashed by the High
Court. Two other important departures in the seniority rule were the appointments of Justice Beg in 1976
as chief Justice of India superseding senior to him, Justice Khanna and that of Justice Y.V. Chandrachud
in 1978 as the chief justice. After 1798, the seniority principle has been observed. This resulted in a
conflict between the Executive and Judiciary

S.P Gupta vs. Union of India (1981) is the first case, which set up the precedent for the Collegium system.
The second judge case, in 1993 made the system effective and the third case, 1998 explained the
ambiguity in the Collegium system. In a fourth case, in 2015 the court eradicated the National Judicial
Appointment Commission, which assisted the president in the selection of the judges for the Supreme
Court and High courts.

First Judge Case: S.P Gupta vs. Union of India, (1981)2 SCR 149
S.P. Gupta vs. Union of India, It is the one of the first “three-judge cases” since 2015, now known as the
“four-judge case”, which S.P Gupta vs. Union of India Gupta vs. Union of India played a great
importance in evolving the S.P Gupta vs. Union of India Collegium system for appointing Supreme Court
and high court judges. With this case, the court set a precedent for the principle of independent
jurisdiction which means that no government body except the court itself interferes in the selection of
judges.

Before 1990, the “Consensus” was the consultation under Article 124(2) and Article 217(1) did not
necessarily man “concurrence”. In S.P Gupta vs. Union of India, the majority held that the opinion of the
chief Justice of India is not primacy in the matter of the appointment of the judges of the Supreme Court
and the high courts, and that the central government has the primacy.

In the first judge case, the court held that consultation does not mean concurrence and it only
implies exchange of views.

Second Judge Case: Supreme Court Advocate-on-Record Association Vs Union of

India, (1993)4 SCC 441
In this case, the Supreme Court reversed its previous verdict and changed the meaning of consultation to
concurrence. Thus, binding the president of India with the consultations of the chief justice of India. This
resulted in the birth of the Collegium system.

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The Supreme Court said that although the appointment is ultimately an executive act and the
constitutional doctrine of judicial review did not justify the primacy of the executive and the primacy of
the opinion of the chief justice of India was essential in regard to the constructional obligation of the
consultation with the chief justice of India. The judgment stated that such a view ensured the
independence of the judiciary even in the appointments of the judges.

In the second judge case, the court stayed its earlier ruling and changed the meaning of the
word consultation to concurrence.

Third Judge Case: In re: Under Article 143(1) of the constitution of India; AIR 1999
SC 1
In 1998, the presidential reference to the Supreme Court was questioned the meaning of the word in the
Articles 124, 217, 222 of the constitution. The chief justice is not only the only part of the consultation
process. It increased the number of judges in the Collegium to be consulted by the president on the
appointment on judges. A Collegium is now consisted of chief justice of India and 4 senior most judges of
the Supreme Court. October 28, 1998, the Supreme Court presented its advisory opinion in the Third
judge case, clarifying the scope and extent of the Collegium and the manner in which the chief justice of
India consults with other judges. It also said that the chief justice of India would have the primacy. This
judgment resulted in a Memorandum of procedure put down the detailed procedure and process of the
appointment of High Court and Supreme Court Judges.

In the third judges (1998), the court held that the consultation process adopted by the Supreme
Court of India requires consultation of plurality of judges.

An individual opinion of the CJI does not form the consultation process. He should consult a
Collegium of four senior most judges of the Supreme Court and further if the two judges give
an opposite opinion, he should not send a recommendation to government.

The court held that the recommendation of the chief justice of India, without following the
norms and requirements of the consultation process are not binding on the Government

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

Forth Judge Case: Supreme Court vs. Union of India (2015) AIR 2015 SC 5457
On October 16, 2015, the five-judge bench ruled with a 4:1 majority held that the 99th constitutional
amendment Act 2014 and the national judicial amendment Act as unconstitutional and void. The court
found that clauses a and b of Article 124A do not ensure adequate presentation of the judges of the
National Judicial Appointment commission, which is not sufficient to maintain the primacy of the
judiciary and thus, violates the independence of the independence of the judiciary which forms the basic
structure of the constitution. Similarly, Article (c) and (d) are ultra vires of the constitution because it

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includes a Union Minister in charge of law which violates the separation of powers which forms the basic
structure of the constitution. The Supreme Court held that system of appointment of judges to Supreme
Court and high court, and appointment of chief justice of India and transfer of judges should be done in
accordance with position prior to the 99th judgment.

This case is commonly known as the “Forth Judge Case” and was added to the list in 2015 after judgment
on the National Judicial Appointment Commission (NJAC). The NJAC was established by the National
Judicial Appointment Act (99th Amendment), 2014, which was declared unconstitutional and therefore
void by Supreme Court. The NJAC is composed of the following namely:

✓ The chief justice of India --Chairperson

✓ 2 senior most judges of the supreme court next to the chief justice of India –Members
✓ The Union Minister in charge of Law and justice –Members
✓ 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 peoples or where there is no
such leader of Opposition, then, the leader of single largest Opposition Party in the House of the
People --Members

This commission was constituted to recommend the names of candidates for the appointments of judges
of the Supreme Court and high court within the Collegium system. In this case, a five-judge bench held
the commission unconstitutional and stated that parliamentary procedure was not followed in enacting the
amendment act, 2015 which stabled the commission. The court also stated that the amendment is
inconsistent with the constitution. The majority felt that this affected the independence of the judges,
because the commission was established by the legislature.

In this case, the Supreme Court stated that the NJAC is unconstitutional and the old
Collegium system of making appointments as judge of SC would be valid.

At Present
The President of India appoints the Chief justice of India. For the appointments of judges of Supreme
court. There is a Collegium of 5 senior most judges of the Supreme Court, including the chief justice of
India, which selects persons who are to be appointed as judges in the Supreme Court. Often, sitting judges
of the high court (in fact, mostly sitting chief justices of the high court) are considered by this Collegium
for elevated as judge of the Supreme Court. Sometimes, an advocate practicing in Supreme Court is also
directly considered directly for hid elevation as a judge in Supreme Court. Recently 3 senior advocates
were appointed as senior judge in Supreme Court:

➢ Justice Rohinton Nariman (elevated in 2014)

➢ Justice UU Lalit (August 2014)
➢ Justice Lavu Nageswara Rao (elevated in 2016)
➢ Justice Indu Malhotra (first women elevated in 2018)

The Collegium makes its decision by consensus. The recommendation for appointments only after
approval by chief justice of India and Collegium is sent to Government of India. After, the approval of the
government, the President of India appoints the judge with his hand and seal.

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Thus, the above mentioned Collegium of 5 senior judges of the Supreme Court. Presently,
recommends person to be appointed as judges of Supreme Court.

I have some criticism about the Collegium System. Which are as follows:

a) Unconstitutional and Autocratic: Collegium is not mentioned anywhere in the constitution and
was created by the judges themselves to preserve the right to elect the judges themselves.
b) Undemocratic: the selection of the judges by the Collegium is undemocratic because judges are
not elected by the people and are not accountable to the people or any else.
c) Non-transparency and Ambiguity: No official procedure for selection and lack of written manual
for functioning, which bring opacity in Collegium functioning.
d) Promotes Nepotism: sons and nephews of previous judges and senior advocates are usually
popular choices for judges. Thus, it encourages mediocrity in the judiciary by talented ones.
e) Inefficient: the Collegium system has been not able to prevent the increasing number of pending
cases in the courts
f) Disobeys SC’s own guidelines: the recent appointment is contrary to the Supreme Court’s view in
the Second Judge case in 1993, where it said that:
1. Seniority amongst judges in their High Courts and on all-India basis is significant and should be
given due consideration while making appointments amongst high court judges to the Supreme
Court
2. Unless there is any strong reason to justify a departure, that order of seniority must be
maintained between them whole making their appointment to the Supreme Court.
g) Contrary to established conventions: the convention of “seniority” has long been considered the
procedure for appointments but “supersession” ignores and abandons this convention, creating
subjectivity and individual bias in appointments.
h) No reform after forth judge case: after striking down the NJAC Act or add safeguards to make it
constitutionally valid. Instead, the court returned to the old Collegium-based appointments
system.

Conclusion
After the dissolution of the NJAC, the process of appointing the judges of the Supreme Court will
continue to follow the same Collegium system as mentioned in the third judge case. Appointment of the
Supreme Court judges by the president through the Collegium system although are the conflicts about the
appointment of judges at each stage of constitutional amen dement and had wide and discreet view among
the peoples. Although, the judgment passes by the ratio of 4:1 by the constitutional bench headed by the
Chief justice of India, J S Kehar, J D chelameswar, R Gogoi and Madan B Lokur.

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Reference
SOURCES:

First Judge Case: S.P Gupta vs. Union of India, (1981)2 SCR 149
https://indiankanoon.org/doc/1294854/.

Second Judge Case: Supreme Court Advocate-on-Record Association Vs Union of

India, (1993)4 SCC 441
https://indiankanoon.org/doc/753224/.

Third Judge Case: In re: Under Article 143(1) of the constitution of India; AIR 1999
SC 1
https://indiankanoon.org/doc/543658/.

Forth Judge Case: Supreme Court vs. Union of India (2015) AIR 2015 SC 5457
https://indiankanoon.org/doc/66970168/.

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