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No. 05/ RN/Ref/March/2023 REFERENCE NOTE March 2023

JUDICIAL APPOINTMENTS IN INDIA

At a Glance

 Articles 124(2) and 217(1) of the Indian Constitution deal with the appointment of
judges to the Supreme Court and High Courts of India, respectively.
 At present, judges of the Supreme Court and the High Courts are appointed by the
collegium system, i.e., a committee comprising the Chief Justice of India and the four
senior most judges of the Supreme Court, and the Government has a role only after
names have been decided by the collegium.
 In order to make the collegium system of appointments of Judges of the Supreme Court
and High Courts more broad-based, transparent, accountable and bringing objectivity in
the system, the National Commission to Review the Working of the Indian Constitution
(2000) was set up under the chairmanship of Justice M.N. Venkatachaliah. The
Commission suggested setting up a Judicial Appointment Commission in the country.
 In August 2014, Parliament passed the Constitution (Ninety-ninth Amendment) Act,
2014, along with the National Judicial Appointments Commission (NJAC) Act,
2014, providing for the creation of an independent commission to appoint judges to the
Supreme Court and high courts to replace the collegium system.
 A five-judge bench of the Apex Court, by a majority of 4:1, vide its judgement dated 16
October, 2015 struck down both the Acts—the Constitution (Ninety-ninth Amendment)
Act, 2014, and the National Judicial Appointment Commission Act, 2014—and declared
them unconstitutional and void as they violate the basic structure of the Constitution of
India.

Prepared by Smt. Seema Jain, Joint Director under the supervision of Shri Satya Vijay Ram, Director, Shri
Pradosh Panda, Joint Secretary and Shri Prasenjit Singh, Additional Secretary of Lok Sabha Secretariat.

The Reference Note is for personal use of the Members in the discharge of their Parliamentary duties, and is not for
publication. This Service is not to be quoted as the source of information as it is based on the sources indicated at the
end/in the context.
"There can be no difference of opinion in the House that our judiciary must be both independent
of the Executive and also be competent in itself. Judicial independence is not only one of the
highest aspirations of any nation but is also a necessary prerequisite for a free and fair society
and the Rule of Law."
-------- Dr. B.R. Ambedkar

-----------
Introduction

In India, the Judiciary has a significant function of protecting and enforcing the
Fundamental Rights of the people guaranteed to them by the Constitution. The Independence of
Judiciary is necessary to maintain the rule of law in the country and to assure that the
government runs according to law.

In a democratic nation, where the apex Court is considered as the guardian of the
people’s Fundamental Rights, the question of the appointment of the Judges is crucial to the
maintenance of independence of the judiciary. India is the only country in the world where
judges appoint the other judges in higher judiciary through Collegium1.

Constituent Assembly Debates

Our Constitution makers were very keen to ensure independence of the Judiciary from
the Executive. They, however, did not intend to give absolute authority to one hand, whether it
be the executive or judiciary, in the matter of judicial appointments in the higher judiciary.
Article 124(2) and 217(1) of the Constitution of India deal with the appointment of regular
judges to the Supreme Court and High Courts of India, respectively.

Draft Article 103 (Now Article 124) concerning to the appointment of judges in higher
judiciary was debated on 24th May 1949. There was heated debate surrounding the consultation
requirement in clause (2). Shri Krishna Chandra Sharma proposed the removal of this
requirement altogether, allowing the President to be solely responsible for the appointment of the
Chief Justice. Other members suggested amendments to the parties involved in the consultation
or confirmation procedure. Shri Shibban Lal Saxena proposed that the appointment of any
person to the position of Chief Justice had to be subject to confirmation of a two-thirds majority
vote of a joint session of Parliament. This received some support in the Assembly, although it
was countered that this would result in the Chief Justice being selected at the pleasure of the
leader of the majority party. Shri K.T. Shah proposed that the Council of States also be
consulted by the President for the appointment of the Chief Justice. However, this
was dismissed as importing the system of electing judges, rather than selecting them, given the

1
Collegium is a system under which appointments and transfers of judges are decided by a forum of
the Chief Justice of India and the four senior-most judges of the Supreme Court, which is known as
Supreme Court Collegium. They consider the elevation of Chief Justices/Judges of High Court to
Supreme Court, elevation of Judges of High Courts as Chief Justices and elevation of Judges. In case of
difference of opinion, the majority view will prevail. High Court collegium consists of the incumbent
Chief Justice and two other senior most judges of that court.
political nature of the Council of States. Shri B. Pocker Saheb Bahadur, citing
a memo circulated by the Federal Court and Chief Justices of various High Courts, proposed that
the appointment of the Chief Justice of India should occur only with the concurrence of the
sitting Chief Justice. His amendment was positively received by some members, one of
whom Shri Biswanath Das supported its adoption, while Shri Mahbob Ali Baig Sahib
Bahadur further proposed that this requirement extends to the appointment of any judge in the
High Court or Supreme Court. The Concurrence proposal moved by Shri Pocker Sahib was
rejected. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar responded that the
Draft Article sufficiently ensured the independence of the judiciary, as neither the executive nor
the legislature had absolute authority in the matter. He stated that:

".....With regard to the question of the concurrence of the Chief Justice, it seems to
me that those who advocate that proposition seem to rely implicitly both on the
impartiality of the Chief Justice and the soundness of his judgment. I personally
feel no doubt that the Chief Justice is a very eminent, person. But after all the
Chief Justice is a man with all the feelings, all the sentiments and all the
prejudices which we as common people have; and I think, to allow the Chief
Justice practically a veto upon the appointment of judges is really to transfer the
authority to the Chief Justice which we are not prepared to veto is the President or
the Government of the day. I, therefore, think that is also a dangerous
proposition."

After full debate, the Constituent Assembly finally adopted Article 124(2) which inter-
alia states that:

"... Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme Court and of
the High Courts in the States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years: Provided that in the case of appointment of
a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted..."

Similarly, Article 217(1) provides, “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…”

The Constituent Assembly preferred to use the word 'consultation' in place of the word
'concurrence' in Articles 124 and 217 of Constitution for judicial appointment. However, the
delicate balance was upset by the Second Judges Case (1993) in which the Supreme Court
interpreted the word 'consultation' as contained in Articles 124 and 217 as 'concurrence',
establishing the primacy of Chief Justice of India in the matters of appointment of judges in the
higher judiciary.

Evolution of Collegium System:

The role of collegium in judicial appointment is a byproduct of case laws. The following
three important judicial pronouncements, which gave birth to the collegium system, are together
popularly known as 'Three Judges Case'. It has no place in the Constitution of India.

First Judges Case (1982) - The seven-judge Constitutional Bench in S.P. Gupta vs. Union of
India (1982) also popularly known as First Judges Case, the apex court held that 'consultation'
does not mean 'concurrence' and ruled that the concept of primacy of the Chief Justice of India is
not found in the Constitution of India. It was also held that proposal for appointment to High
Court can emanate from any of the four constitutional functionaries mentioned in Article 217 and
not necessarily from the Chief Justice of the High Court. The Judgment tilted the balance in
favour of the Executive in the appointment of judiciary. This continued for 12 years.

Second Judges Case (1993) - The nine-judge Bench in the Supreme Court Advocates-on-
Record Association vs. Union of India (1993), also known as Second Judges Case, the apex court
over-ruled the decision in S.P. Gupta Case (1982) with 7:2 majority. The court observed that
Chief Justice of India should be given the primary role in the appointment process of judges. The
court stated “justiciability” and “primacy” as the main reason behind the decision. The Supreme
Court held that “consultation” really means “concurrence” and a collegium system was
introduced for the appointment of judges. The reason behind the collegiums system’s inception
was that it shows the collective opinion of the senior most judges involved in the process of
judicial appointment rather than an individual opinion.

Third Judges Case (1998) -The Second Judges decision was reaffirmed unanimously in Third
Judges Case (1998) by the nine-Judge Bench of the Supreme Court on a reference being made by
the President under Article 143 of the Constitution. It also held that the recommendation should
be made by the Chief Justice of India and his four senior-most colleagues.

Thus, it is established that the sole opinion of the Chief Justice is binding on the
Government in the matter of appointment of the Judges of the Supreme Court and High Courts.

Memorandum of Procedure (MoP)

Like collegium, MoP is also a judicial innovation which was drafted by the Ministry of
Law and Justice (Department of Justice) as per the directions given by Supreme Court in the
Second and Third Judges cases. It lays down a detailed process and procedure for appointment of
Judges in higher judiciary. There are two MoPs, one for the appointment of Judges of the
Supreme Court2 and the other for the appointment and transfer of High Court Judges3.

2
https://doj.gov.in/memorandum-of-procedure-of-appointment-of-supreme-court-judges/
3
https://doj.gov.in/memorandum-of-procedure-of-appointment-of-high-court-judges/
 In 2015, the court told the centre to come up with a new MoP in order to make the
collegium’s proceedings transparent. This exercise, however, resulted in a year-long deadlock
between the executive and the judiciary, over some clauses of the MoP. Recently, Government
has sent suggestions for supplementing the Memorandum of Procedure for appointment of
Judges to the High Courts and Supreme Court4 and, now, the issue is under consideration of the
Supreme Court.

Drawbacks

The collegium system over the years has come under criticism for the following reasons:

Close-Door Mechanism:

 Critics have pointed out that this system does not involve an official secretariat. It is
regarded as a private affair, with no public knowledge of how and when a collegium
meets or how it makes decisions.
 Also, there are no official minutes of collegium proceedings.

Chances of Favouritism and Nepotism:

 The collegium system does not provide any specific criteria for testing the candidate for
the post of CJI, which leads to wide scope for nepotism and favoritism.
 It gives rise to the non-transparency of the judicial system, which is very harmful for the
regulation of law and order in the country.

Against the Principle of Checks and Balances:

 The principle of check and balance is violated in this system. Three organs work partially
independently in India, but they keep a check and balance on the excessive powers of any
one organ.
 However, the collegium system gives the judiciary immense power, which leaves little
room for checks and poses the risk of misuse. There is no intelligence gathering
mechanism to collect and keep a check on the professional and personal backgrounds of
potential appointees.

Unequal Representation:

 The other area of concern is the composition of the higher judiciary. Women, SCs, and
STs are underrepresented in the higher judiciary.

Exclusion of Executive:

 The complete exclusion of the executive from the judicial appointment process created a
system where a few judges appoint the rest in complete secrecy.
4
RAJYA SABHA UNSTARRED QUESTION NO. 1873 dated 22.12.2022.
  Furthermore, they are not accountable to any administrative body, which may result in
the wrong candidate being chosen while the right candidate is overlooked.

One of the worst examples of the wrong selection of judges under the collegium system
was the appointment of Soumitra Sen as a Calcutta High Court Judge on 3 December 2003 even
when there were allegations that he misappropriated funds while serving as a court-appointed
lawyer in a dispute between two public sector undertakings. The collegium cleared his
appointment and withheld knowledge about the person whom they were going to elevate as a
judge. On 18 August 2011, the Rajya Sabha had passed the motion 5 making him the first judge
to have been impeached by the Upper House for misconduct. Justice Sen tendered his
resignation to the then President on 01.09.2011, five days before the Lok Sabha was to take up
an impeachment motion against him.

Law Commission of India

The collegium system was also criticized by the Law Commission of India in 2008 when
it said that nepotism and personal patronage is prevalent in the functioning of the collegium
system. By giving judiciary a dominant role, there exists no system of checks and balances
which is essential to a democracy.

The Law Commission of India in its 214th Report6 recommended two ways to do away
with the collegiums system-

 Reconsideration of three judges’ cases by the SC or to enact a law which restores the
primacy of the CJI along with the power of the executive in deciding on appointments.
 Restoring the balance between the Judiciary and the Executive would improve the
quality of selection and appointments.

National Judicial Appointment Commission

As per the recommendations of the National Commission to Review the Working of the
Indian Constitution (2002)7, headed by Justice M.N. Venkatachaliah, the UPA Government
introduced the National Judicial Appointment Commission Bill, 2013 in the Parliament and
referred the same for examination to the Parliamentary Standing Committee on Personnel, Public
Grievances, Law and Justice. However, the Bill lapsed due to the dissolution of Lok Sabha. In
2014, the NDA Government re-introduced National Judicial Appointment Commission Bill,
2014 incorporating the recommendations of the Sixty-fourth Report of the Parliamentary
Committee8 to streamline the process of judicial appointments. The NJAC Act9 advocated for the
formation of the National Judicial Appointment Commission for appointment in the higher
judiciary by Ninety-ninth Constitutional Amendment10, which inserted new articles- Article
124A, Article 124B and Article 124C in the Constitution of India. Article 124A and B defined

5
https://cms.rajyasabha.nic.in/documents/1631111946243.11_Soumitra_Sen_Judge.pdf
6
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081028.pdf
7
https://legalaffairs.gov.in/national-commission-review-working-constitution-ncrwc-report
8
https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/18/18/64_2016_6_12.pdf
9
https://www.indiacode.nic.in/bitstream/123456789/2142/1/A2014-40.pdf
10
https://legislative.gov.in/sites/default/files/99th.pdf
the NJAC, its members and their duties, while Article 124C empowered the Parliament to make
laws in future to regulate the procedure for the appointment of judges. The Commission would
not recommend a person for appointment if any two members of the Commission do not agree
for such recommendation.
The National Judicial Appointment Commission was to consist of Chief Justice of India
as Chairperson, two other senior Judges of the Supreme Court next to the Chief Justice of India
as Members, the Union Minister in charge of Law and Justice as Member, and two eminent
persons as members to be nominated by the committee consisting of the Prime Minister, the
Chief Justice of India and the Leader of Opposition in the House.

Fourth Judges Case (2015)

The constitutional validity of both the Ninety-Ninth Constitutional Amendment and the
NJAC Act, 2014, was challenged in the Supreme Court on 15 April 2015. A constitutional bench
of five judges with a majority of 4:1 vide its judgment dated 16th October, 201511 has inter alia
struck down these two enactments, declaring them unconstitutional and void. This has come to
be known as the Fourth Judges Case.

The main reasons stated by the Supreme Court in the fourth Judges Case for striking
down the Ninety- Ninth Constitutional Amendment Act and the NJAC Act, 2014, were as
follows:

 that clauses (a) and (b) of Article 124A (1) did not provide an adequate representation, to
the judicial component in the NJAC, clauses (a) and (b) of Article 124A (1) were
insufficient to preserve the primacy of the judiciary, in the matter of selection and
appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and
Judges, from one High Court to another). This was in violation of the principle of
“independence of the judiciary”.
 Clause (c) of Article 124A (1) was 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. It impinged upon the principles of “independence of the
judiciary”, as well as, “separation of powers”.
1. that clause (d) of Article 124A (1) which provided for the inclusion of two “eminent
persons” as Members of the NJAC was ultra vires the provisions of the Constitution, for
a variety of reasons. It was held to be violative of the “basic structure” of the
Constitution.
 Reciprocity and feelings of pay-back to the political-executive would erode the
independence of the judiciary.
 The National Judicial Appointments Commission Act, 2014, inter alia, emanated from
Article 124C. It had no independent existence in the absence of the NJAC, constituted
under Article 124A (1). Since Articles 124A and 124C had been set aside, as a natural
corollary, the National Judicial Appointments Commission Act, 2014 was set aside, and
it was accordingly struck down.
11
https://main.sci.gov.in/judgment/judis/43070.pdf
 Parliamentary Standing Committee on Law and Justice12

Keeping in view the huge pendency of cases in Supreme Court and High Courts owing to
the vacant posts of judges, the Parliamentary Standing Committee on Law and Justice had suo
moto taken up the Subject, "Inordinate delay in filing up the vacancies in higher judiciary" to
make an attempt to harmonise the systemic differences/ conflicts that emerged particularly after
the famous Second and Three Judges cases (1993 and 1998 respectively), and the Supreme
Court's judgment in 2015 declaring both the NJAC Act and the 99th Constitution Amendment
Act, unconstitutional and void. The Committee presented its report to the Parliament on 8
December, 2016. In its report, the Committee expressed serious concern about the effectiveness
of the present system. The Committee also recommended that appointment of judges of higher
judiciary is essentially an executive function and is envisaged as a participatory Constitutional
function to be jointly performed by the Judiciary and the Executive. The Constitution provides
for appointment by President after ‘consultation’ with judiciary, instead of ‘concurrence’. The
present interpretation of the Constitution by the Supreme Court that requires the concurrence of
the judiciary may be reversed.

Comparative Analysis of Appointment Mechanisms in Other Countries

 Judicial Appointments in the United States of America: Judges of the Federal Court are
appointed by the President with the advice and consent of the Senate. The candidates are
assessed by a committee of the American Bar Association and reviewed by the Senate Judiciary
Committee before a vote in the Senate. There is no set retirement age for judges in the US as
they continue to hold office for "good behaviour".
 Judicial Appointments in the United Kingdom: The appointment process in the UK went
through a change in 2005 when the UK Supreme Court replaced the House of Lords. The power
was shifted from the Lord Chancellor to the Judicial Appointments Commission that consisted of
barristers, judges, laypeople, solicitors, and magistrates. However, the residual power rested with
the Lord Chancellor to reject candidates based on merit.
 The independent Judicial Appointment Commission system is also operating well in different
countries including Canada, South Africa and in many jurisdictions of the United States.
There are also judicial appointment committees in Ireland, Israel, New Zealand and the
Netherlands.

From the perusal of the above-cited jurisdictions, the main difference between India and
them lies in the fact that different government branches control judicial appointments. The
commonality in these systems can be highlighted that power is not vested with one single
authority. However, the unique thing about the collegium system in India is that power rests
solely with the Judiciary.

12
https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/18/76/87_2018_10_12.pdf
Resources:

1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894130
2. https://articles.manupatra.com/article-details/Debating-the-Collegium-System-A-Comparative-
Analysis
3. https://www.legalserviceindia.com/legal/article-3681-collegium-system-in-india.html