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Process of Appointment of Judges in India and USA-A Comparative Study

Process of Appointment of Judges in India and USA-A Comparative Study

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THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.

A- A COMPARATIVE STUDY

SUBJECT: - INDIAN CONSTITUTIONAL LAW- THE NEW CHALLENGES

SUBMITTED TO: SUBMITTED BY:

Prof.C.M.Jariwala Hareesh Gupta Roll No.10 LL.M. (Ist Semester)

Dr.Ram Manohar Lohiya National Law University, Lucknow

ACKNOWLEDGEMENTS

It is indeed a proud privilege to express my deep sense of gratitude and indebtedness to my respected teacher and guide Prof.C.M.Jariwala, for his valuable guidance, scholarly inspiration, which he has extended to me for the successful completion of this endeavour. I sincerely acknowledge the help rendered by the Librarian and Staff of the Dr.Ram Manohar Lohiya National Law University, Lucknow, and also the librarian and staff of the Bishnu Ram Medhi Government Law College,Guwahati, Assam whose cordial relations helped me for successful completion of project.

Hareesh Gupta LL.M (Ist Semester), Roll No.10 Dr.Ram Manohar Lohiya National Law University, Lucknow

TABLE OF CONTENTS Page(s) 1. INTRODUCTION

1.1. Research Methodology 1.1.1 1.1.2 1.1.3 1.1.4 Research Objective Hypothesis/Research Questions Methodology and Sources of data used in Research work Research Scheme

2.

HISTORICAL BACKGROUND AS TO THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A

2.1 2.2 2.3

Constituent Assembly Debates Past proposals for Reforms in India-since 1945 Position prior to Constitution in United States of America

3.

CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATIONS ON THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A

3.1 3.2 3.3 3.4 3.5

Constitutional Provisions and Process of Appointment in India Judicial Interpretations Constitutional Provisions and Process of Appointment in U.S.A The Role of the Legislature in the Process of Appointment of Judges in U.S.A Judicial Interpretations

4. COMPARATIVE ANALYSIS OF THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A

5. CONCLUSIONS AND SUGGESTIONS

Appendices (i) (ii) The Judicial Structure of the Courts in United States of America. The Process of Appointment of Judges in United States Federal Courts.

Table of Cases • • • • • •

Supreme Court Advocates on Record Association v. Union of India S. P. Gupta v. Union of India Subhas Sharma v. Union of India Samsher Singh v State of Punjab Union of India v Sankalchand Himatlal Sheth Re Presidential Reference case Marbury v. Madison Morrison v. Olson Mistretta v. United States United States of America v. Fermin Hilario Jon E. Edmond v. United States

• • •

List of Abbreviations • •

A.I.R SC v. SCC J. NJC SCR Para OPD FBI -

All India Reporter Supreme Court Versus Supreme Court Cases Justice National Judicial Council Supreme Court Review Paragraph Office of Policy Development Federal Bureau of Investigation American Bar Association United States Cases

• • • • • • • •

ABA U.S.C. -

List of Constitutions

• •

Indian Constitution American Constitution 1. INTRODUCTION

“Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the intertices, the bounds set to judicial innovation by precedent and custom. None the less, by the abuse of power, they violate the law”1 - Benjamin N.Cardozo The framers of India’s written Constitution wisely built into it checks and balances in order bring about a harmonious balance in the powers and responsibilities of the three branches — the Executive, the Legislature and the Judiciary — of the Government. They knew that in a democratic set up, the absence of such a balance, and the distortion and even perversity resulting therefrom, would render effective governance an impossibility. The people particularly look up to the judiciary to maintain and preserve the equilibrium by its interpretation of various laws and decisions on the legality and constitutionality of the exercise of their functions by various authorities, in cases coming before it. Though under the Indian Constitution the polity is dual, the Indian judiciary unlike United States of America which is dual (consisting of federal and state courts) is integrated which can interpret and adjudicate upon both the Central and State laws. The structure of the judiciary in the country is pyramidical in nature. At the apex, is the Supreme Court. Most of the States have a High Court of their own. Some States have a common High Court. The appointment of Judges of the Supreme Court and their removal are governed by Article 124 of the Constitution of India. Articles 125 to 129 provide for certain incidental matters. The appointment and removal of the Judges of the High Courts are governed by Article 217. Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto. The issue of appointment and removal of judges in India has been in controversy since long time and has been a matter of debate amongst the legislature, executive and judiciary in the recent past. The present position as to the process of appointment of judges is the consequence of

1

Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135

the judicial interpretation laid down in Judges cases I, II and III - S. P. Gupta vs. UOI 2, Supreme Court Advocates-on-Record Association vs. UOI3 and Special Reference No.14 which was a departure from the established existing system of process appointment of judges which prevailed till the year 1981.Till then the process of appointment of judges were practically made by the executive in consultation with the judiciary and it played a dominant role, but doubts were made as to the primacy of the opinion of the executive since then as to the process of appointment of judges which led to judicial interpretations out of which none of the interpretations were in consonance with the express constitutional provisions, thereby keeping the process of appointment of Judges vague and devoid of transparency. This project work makes the comparative analysis of the process and removal of judges with its counterpart United States of America as both federal nations have certain common features in their written constitution, independence of judiciary being the most important one. The comparative analysis is made with an objective to analyse the existing system of process of appointment of judges in both countries and to suggest more transparent and effective process for appointment of judges in India in the light of the said comparative analysis which ensures just, fair and efficient judicial process in the administration of justice The project would also critically examine the Judges cases I, II and III and the possibility for reconsideration of those cases which are the law of land as to the process of appointment of judges. While the method of selection to subordinate judiciary has not evoked any controversy, the method of appointment to and more particularly the actual manner in which appointments were made to the High Courts and the Supreme Court has been a subject matter of good amount of controversy, whether before the decision in S.P. Gupta or thereafter and even after the 1993 decision of the Supreme Court in Supreme Court Advocates-on-Record Association. The controversy as regards appointment of judges is that while the decision in the S.P. Gupta was criticized for upsetting the existing situation by vesting the power of appointment in the executive and by diminishing the importance of the Chief Justice of India and the judiciary, the 1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by the critics
2

AIR 1982 SC 149 (1993) 4 SCC 441; AIR (1994) SC 268 Special Reference No.1 of 1998,RE (1998) 7 SCC 739

3

4

of the 1993 decision that in a democracy, accountability is an important consideration and the authority or authorities making such appointments should be accountable to the people. The debate is not yet over and perhaps may never be. The formula laid down by the Constitution makers in Articles 124(2) and 217(1) of the Constitution was drafted after considering all possible alternatives which would avoid criticism in future. Though, of course, ever since the commencement of the Constitution from time to time doubts have been expressed on the operation of the formula, no agreed alternative to it has yet been found. In view of the interpretation given to the formula by the Supreme Court in the Judges Case, the wisdom of its continuation underwent severe scrutiny and suggestions came either for the overruling of the interpretation of the formula or its replacement by a National Judicial Commission for recommending to the President appointment of the Supreme Court and High Court judges. Since the Court overruled the Judges Case in the Second Judges Case and affirmed the overruling in the Third Judges Case, no exercise to change the original constitutional formula is either in operation or under serious consideration, but the same is criticized for giving ‘primacy’ to the Chief Justice of India’s opinion over the executive and also for making the consultation process cumbersome by introducing the system of ‘collegium’ as the same is not provided in the Constitution . The said question was placed for decision before the larger bench of nine judges in Judges-II case (as re-affirmed in Judges-III case) from the decision in Subhash Sharma v. Union of India5 which had already criticized the opinion of judges in S.P.Gupta’s case and laid ground for its over-ruling. The research work will be guided by the following proposition/hypothesis which are based on a close examination of constitutional provisions relating to appointment of judges, their history, interpretation and application, and the problems faced during their operation:First, the Constitution makers did not want the appointment of Judges to be made exclusively by the executive. Second, doubts were expressed from the very beginning whether the formula for the appointment of Judges adopted in the Constitution will serve the purpose of establishing and maintaining an ‘independent and competent judiciary’ which undoubtedly was one of the foremost objectives of the Constitution makers.
5

AIR 1991 SC 361

Third, these doubts were confirmed with respect to the High Courts even before the commencement of the Constitution and soon after the commencement of the Constitution even with respect to the Supreme Court. Fourth, though the Constitution makers intended effective involvement of the Judges, particularly of the Chief Justice of India and the Chief Justices of the High Courts, in the appointment of Judges, they denied the Chief Justice of India the last word (i.e. concurrence) in the matter. Fifth, the Constitution makers did not agree to make the appointment of Judges subject to either the recommendations of any panel or approval of the legislature. Sixth, the Constitution makers sincerely believed that for the purpose of an independent and competent judiciary they could not do better than what they had provided in the Constitution for the appointment of Judges, that the provisions were the best possible and most suitable for India and that the high constitutional functionaries involved in the process will discharge their constitutional obligation with full responsibility. Seventh, time and experience has proved that the Constitution makers were not completely wrong in their estimation and that subject to occasional aberrations the provisions have worked as intended and expected. Eighth, the experience of giving primacy to the executive in the matter of appointment of Judges after the Judges Case had within a short period of less than a decade proved that the interpretation of the provisions in that case had gone against the expectations of the Constitution makers of providing an independent and competent judiciary. Ninth, until the Judges Case, which gave primacy to the executive in the matter of appointments, even though difficulties were faced in the appointment of Judges, the idea of a judicial appointments commission or other similar body outside the scheme already laid down in the Constitution was not seriously entertained at any level. Tenth, the Constitution provides for a ‘consultative process’ among several constitutional functionaries and reasonably expects a ‘participative consensual decision’. This is most important proposition as the same has been overlooked by Judges Cases-I, II & III.

Eleventh, practice of consultation by the Chief Justice of India and the Chief Justices of the High Courts with their colleagues before making their recommendation for appointment was prevalent and specifically recommended by the Law Commission in its 80th Report (1979). Finally, no clear consensus has either been sought, or has emerged or is in sight so far on the creation of an alternative arrangement for the appointment of the Judges replacing the one already provided in the Constitution. There is a strong case to consider constitutional changes in the judicial appointment process in India if disappointment is not to visit judicial performance and disinvestment of democracy is not to vitiate the judicative establishment. The project would also discuss briefly how far and to what extent ‘independence of judiciary’ and power of ‘judicial review’ as one of the basic structure of the Indian Constitution influence the process of appointment of judges in India. 1.1. 1.1.1 RESEARCH METHODOLOGY: Research Objective

This research work makes the Comparative Analysis of the Process of Appointment of Judges in two federal countries with written constitution, namely, the United States and India. The comparative study as to the process of appointment of judges in India with its counterpart United Sates of America is initiated with a view to analyse the strengths and weaknesses in the present system of appointment of judges in India and to suggest alternative system of appointment of judges within the constitutional framework which would bring more transparency and public confidence in the existing process of appointment of judges. It describes the process of appointment of judges in both the countries with special emphasis on the recent developments taking place on the issue of appointment of judges in India The U.S.A is selected for the comparative analysis because it has certain similarities with the Indian Constitution, for example, they each posses a written, federal constitution with a democratic setup that has been the subject of interpretation by an independent judiciary and more importantly ‘independence of judiciary’ is recognised in both the countries as one of the significant feature in their constitutions.

1.1.2

Hypothesis/Research Question

The research problem addressed in this project work is that whether the provisions of the Indian Constitution as to the process of appointment of judges are clear and unambiguous or it needs to be supplemented by the judicial interpretation or it needs a constitutional amendment. It is known that the present position as to the process of appointment of judges in India is the consequence of Judges Cases I, II and III, i.e., S.P.Gupta vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates-on-Record Association vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739 and after the overruling of the S.P.Gupta’s Case the law laid down in Second Judges Case is the law governing appointment of judges in India which departs with the text of Article 124(2) and Article 217 of the Indian Constitution and is criticized by saying that it has made the Supreme Court and High Court totally undemocratic. Now, in view of the recent incidents of impeachment of Calcutta High Court judge Soumitra Sen, cash being delivered to the "wrong" judge of the Punjab and Haryana High Court and the pension funds withdrawal scam involving the Ghaziabad judiciary, the question is whether the existing process of appointment of judges as established by the judicial precedents is satisfactory or does it need a rethinking. Secondly, the project would also analyse the feasibility of other alternative methods of appointment of judges in India which ensures judicial independence and public confidence in judiciary. 1.1.3 Research Methodology

Researcher in this work has been done having relied mainly on ‘Doctrinal Method’ of research. The methodology adopted for the present seminar paper is doctrinal, analytical and descriptive. The researcher mainly depended on the primary sources like Statutes and Research Committee Report and secondary sources like books, articles, journals, case laws and websites. Opinions of research scholars, professors, experts in respective fields and opinions of advocates who have dealt with this subject are used as real contribution to this work. Internet has provided with a major contribution of most relevant and latest information on the web which has helped the researcher to explore the subject through various dimensions. Dr. Ram Manohar Lohiya National Law University, Lucknow and its e-resources have played a crucial role in bringing out special material for the project paper. Opinions of experts published on the web also contributed to a great extent for conducting research in the subject.

1.1.4

Research Scheme

The topic on “The Process of Appointment of Judges in India and U.S.A- A Comparative Study” is taken with a view to analyze in detail the existing system of appointment of judges in India and U.S.A and to suggest more effective process of appointment of judges in the background of the said comparative study. Considering all the above aspects and to facilitate the discussion and perfect solutions for above problems and for thematic development of the subject the research work is divided into seven chapters. Brief overview of the chapters is as follows— Chapter I deals with ‘Introduction’. In this chapter the researcher has given a brief overview of the project topic including its objective and scope and also discusses in brief the research problem to be addressed by the project. Chapter II deals with the historical background as to the process of appointment of judges in India and U.S.A. This chapter primarily deals with the pre-constitutional status as to the appointment of judges in India and U.S.A. The Indian Constituent Assembly debates while framing the provisions relating to appointment of judges are discussed in this chapter. The historical background in regard to the Indian Constitution would also include the suggestions of the various committees and Law Commission Reports on the appointment of judges before the passing of judgment of Supreme Court Advocates on Record Association v. Union of India., 1993 (4) SCC 441. Chapter III deals with constitutional provisions as to the appointment of judges in India and U.S.A and interpretations made in leading judicial decisions by the apex court on the said issue. Chapter IV deals with the comparative analysis as to the method of process of appointment of judges followed in India and U.S.A. Chapter V deals with Conclusions and Suggestions as to the alternative method of appointment of judges in India.

2.

HISTORICAL BACKGROUND OF THE CONSTUTUTIONS OF THE TWO COUNTRIES

2.1

Opinion of the Constituent Assembly of India

During the discussions in the Constituent Assembly on the appointment of judges of the Supreme Court, three main proposals had come up for consideration. One was that the President should make appointments with the concurrence of the CJI; another was that appointments should be subject to confirmation by 2/3rd vote by Parliament and the third was that they should be in consultation with the Council of States (Rajya Sabha) Dr Ambedkar in his reply to the discussions had firmly ruled out any involvement of the legislature in judicial appointments on the ground that it would be very cumbersome and would lead to political pressures. On the question of appointments with the concurrence of the CJI, Dr Ambedkar had said "to allow the CJI practically a veto upon appointment of judges is really to transfer the authority to the Chief Justice, which we are not prepared to vest in the President or the government of the day." As regards appointment by the President, Dr Ambedkar had explained that it would be after consultation with persons who are ex-hypothesi well qualified to give proper advice in such matters. The decision finally taken [Article 124(2)] was for appointment by the President "after consultation with such of the judges of the Supreme Court and of the high courts in the state as the President deems necessary for the purpose." This procedure had worked fairly satisfactorily till 1993 when the Supreme Court interpreted the words "after consultation" to mean "with the concurrence" of the Court and the government of the day chose not to seek a review of this decision by a larger bench. After this the role of the executive at the Central and state levels became marginal and the decision on the appointment of judges today rests de facto with the judges themselves.

2.2. 1945 2.2.1

Past proposals for reforms in the process of appointment of judges in India – since Introduction: For a proper appreciation of the research problem dealt with herein, it is

relevant to notice the several suggestions put forward and attempts at reform tried in last several years on the issue of appointment of judges in India. They are briefly discussed, as follows: 2.2.2 Recommendations of Sapru Committee: In the year 1945, the Sapru Committee (constituted to look into this aspect in view of the impending independence of the country) recommended that “Justices of the Supreme Court and the High Courts should be appointed by the head of State in consultation with the Chief Justice of Supreme Court, and, in the case of High Court Judges, in consultation additionally with the High Court Chief Justice and the head of the unit concerned.” 2.2.3 Recommendations of the High Powered Committee appointed by the Constituent Assembly: The Constituent Assembly appointed a high-powered ad hoc committee consisting of outstanding jurists of the country for recommending the best method of selecting Judges for the Supreme Court. The committee submitted a unanimous report opining that it would not be desirable to leave the power of appointing Judges of the Supreme Court with the President alone. It recommended two alternative methods in that behalf, namely, (i) the President should, in consultation with the Chief Justice of the Supreme Court (so far as appointment of puisne Judge is concerned), nominate a person whom he considers fit to be appointed as Judge of the Supreme Court and the nomination should be confirmed by a majority of at least seven out of a panel of eleven (composed of some of the Chief Justices of the High Courts, some members of both the Houses of Central legislature and some of the law officers of the Union); (ii) the said panel of eleven should recommend three names out of which the President, in consultation with the Chief Justice, may select a Judge for appointment. The same procedure should be followed for the appointment of Chief Justice of the Supreme Court except of course that in his case there should be no consultation with the Chief Justice.6

2.2.4
6

Suggestion of Shri B.N. Rao: In his Memorandum on the Union Constitution, Shri B.N.

B.Shiva Rao: The Framing of India’s Constitution. Vol.2 at p. 590.

Rao, the Constitutional Advisor suggested that appointment of judges should be made by the President with the approval of at least two-thirds of the Members of the Council of States, which was proposed to be constituted to advise the President in exercise of his discretionary functions and of which the Chief Justice of the Supreme Court was to be an ex-officio member. 2.2.5 Recommendations of Federal Court: The draft Constitution was forwarded to the

Federal Court for its views. In March, 1948 a conference of Judges of the Federal Court (including its Chief Justice) and Chief Justices of the High Courts was held to consider the proposals in the draft Constitution concerning the judiciary. The Memorandum submitted by the conference recommended that the appointment of the Judges of the High Court should be made by the President on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India. 2.2.6 Basis adopted in articles 124 and 217: Perhaps, the several proposals mentioned above

(except the one by Shri B.N. Rao) constitute the basis for the method of appointment devised by Articles 124 and 217. At the same time, the Constituent Assembly chose to employ the expression “consultation” in preference to the expression “concurrence”. 2.2.7 Fourteenth Report of the Law Commission of India: In its Fourteenth Report (1958),

the First Law Commission of India, headed by, Shri M.C. Setalvad7, and composed of some very distinguished personalities of the time, examined this issue at length. In its concluding observations it observed: “the almost universal chorus of comment is that the selections are unsatisfactory and that they have been induced by executive influence. It has been said that these selections appear to have proceeded on no recognizable principle and seem to have been made out of considerations of political expediency or regional or communal sentiments……… …”. “After noticing that the appointments made have not always been on merit, the Report observed: “It is widely felt that communal and regional considerations have prevailed in making the selection of judges………….What perhaps is still more to be regretted is the general impression that now and again executive influence exerted from the highest quarters has been responsible for some appointments to the Bench……….”. The report recommended that every appointment
7

Distinguished jurist and first Attorney General of India

to the High Court and the Supreme Court should be made with the concurrence of the Chief Justice of India. In effect, this report sought to revive the idea of ‘concurrence’, which was not accepted by the Constituent Assembly. Of course, this recommendation was not implemented. 2.2.9 Observations of the Supreme Court in Shamsher Singh’s Case: In its judgment in

Shamsher Singh v. State of Punjab8, the Constitution Bench of the Supreme Court dealt with the appointment of Judges. The Bench observed: “In all conceivable cases, consultation with highest dignitary of Indian justice will and should be accepted by the Government of India and the court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order.” A most emphatic statement regarding the role of Chief Justice of India in all such matters. 2.2.10 80th Report of the Law Commission of India: In the year1977, at the instance of the then Prime Minister of India, the Ministry of Law, Justice and Company Affairs requested the Law Commission to examine the question of appointment of Judges of High Court and Supreme Court and to submit a report. The Law Commission headed by Shri H. R. Khanna J. went into the matter at length and recommended (by the time of submission of the Report Shri H.R.Khanna J. resigned and hence it was sent by a Member of the Commission) that while making a recommendation for appointment of a Judge of a High Court, the Chief Justice of the High Court should consult his two senior-most colleagues and while forwarding the recommendation should incorporate therein the fact of such consultation and indicate the views of the two colleagues. The unanimous recommendation of this body, it was recommended, should normally be accepted by the executive.9. Interestingly, the Commission had proposed in its questionnaire, constitution of a high level panel (a consultative panel, called “Judges Appointment Commission”) consisting of persons known for their integrity, independence and judicial background to ensure dispassionate scrutiny and to eliminate extraneous considerations in the matter of these appointments (the panel was to consist of Chief Justice of India, Minister for Law and Justice
8

AIR 1974 SC 2192 80th Report on Method of Appointment of Judges, (1979)

9

and three persons each of whom has been the Chief Justice or a Judge of the Supreme Court) but it dropped the proposal in view of the opposition by most of the High Courts. 2.2.11 79th Report of the Law Commission of India: In the Seventy-ninth Report of the Law Commission of India (on Delay and Arrears in High Courts and other Appellate Courts [1979]), it was recommended that in the matter of appointment of Judges of the Supreme Court, the Chief Justice of India should consult his three senior most colleagues and should, in the communication incorporating his recommendation, specify the result of such consultation and reproduce the views of each of his colleagues so consulted. It appears that this procedure was followed between 1977 and 1979 but given up thereafter. Though the said recommendation applies equally in the matter of appointment to the High Courts, there is no evidence to show whether the said recommendation was ever followed and if so, for what period. 2.2.12 Bar Council’s 1979 Opinion: Reference may also be made to an opinion expressed by the Bar Council of India in 1979 that of all the segments of the society, the members of the Bar are pre-eminently suited to judge persons who should be appointed as Judges of the High Court and Supreme Court and, therefore, any reform or modification in the model for selection and appointment of Judges of the High Court and Supreme Court must provide for adequate representation of the organized bar in the mechanism. 2.2.13 Majority view in S.P. Gupta’s case: In S.P. Gupta’s case10Justice Bhagwati (who was in the majority) did not accept the concept of the primacy of the Chief Justice of India. He opined that proposal for appointment can emanate either from Chief Justice of India or from any of the other three constitutional functionaries (in the case of appointment to High Court) and that it was open to the Central Government to override the opinion of Chief Justice of India or the other two constitutional functionaries. He said that opinion of all the three functionaries to be consulted (Article 217) stands on equal footing. He added, quite significantly, that if the opinion of Chief Justice of India and Chief Justice of the High Court is unanimous, the Government should ordinarily accept it. In the course of his opinion, the learned Judge also referred to the desirability of a collegium to make recommendation to the President in regard to appointment of Supreme Court and High Court Judges. He thought that such a collegium should be broad-based and should make the recommendation in consultation with wider interests. He referred to the
10

AIR 1982 SC 149

fact that in countries like Australia and New Zealand the idea of a Judicial Commission has been gaining ground. 2.2.14 Recommendations of Bar Council of India for Collegium: The Bar Council of India organized a national seminar of lawyers at Ahmedabad on 17th October, 1981. It opined that the role of executive in the matter of appointment to High Court and Supreme Court should only be formal and minimal. The initiative in the matter of selection and appointment of Judges should invariably rest with the Chief Justice of India. For appointment to the Supreme Court, it recommended a collegium consisting of (1) the Chief Justice of India, (2) five senior Judges of the Supreme Court, and (3) two representatives of the Bar representing the Bar Council of India and the Supreme Court Bar Association. The recommendation of such collegium should be binding on the President though it would be open him to ask for reconsideration of specific cases on stated grounds. In the matter of appointment to the High Court, it was recommended, the collegium should consist of the Chief Justice of the High Court and his two senior-most colleagues and two leading advocates to be nominated by the Bar Association of the High Court as its representatives. 2.2.15 121st Report of Law Commission of India for Constitution of a National Judicial Service Commission: The Law Commission again went into this matter at great length in the year 1987. Its recommendations are contained in the One Hundred Twenty-first Report on a New Forum for Judicial Appointments submitted in July, 1987. After noticing the several recommendations made earlier and the developing trends in other countries, the Law Commission recommended the constitution of a National Judicial Service Commission. It opined “a broad based National Judicial Service Commission representing various interests with preeminent position in favour of the judiciary is the demand of the times.” The Report 11 recommended that the Judicial Service Commission should be composed of eleven persons, namely, the Chief Justice of India and three senior most Judges of the Supreme Court, the immediate predecessor in office of the Chief Justice of India, three senior most Chief Justices of the High Courts, Minister for Law and Justice, the Attorney General of India and an outstanding law academic. The report further opined that it must be left to such Commission to devise its own procedure for initiation of proposal for recommending individuals for appointment and that
11

121st Report of the Law Commission of India

no hard and fast rule can be laid down in that behalf. It was observed that recommendation of such a Commission should be binding upon the President but it shall be open to the President to refer the recommendation back to the Commission in any given case along with information in his possession regarding the suitability of the candidate. If, however, after reconsideration, the Commission reiterates its recommendation, the President shall be bound to make the appointment. It was also recommended that the Chief Justice of the High Court, to which appointment is proposed to be made, should be co-opted as a member of the Commission. Besides the Chief Justice of the High Court, the Chief Minister of the State (wherein the High Court is situated) was also recommended to be co-opted. (This was on the premise that Governor is only a constitutional head who has to act upon the advice of the Chief Minister). It is evident that the Law Commission had in mind the appointment to High Courts only. It does not appear to have dealt with appointment to Supreme Court in this Report. 2.2.16 Views of Arrears Committee: The Committee noticed the method of appointment of High Court Judges under the Government of India Act, 1919, Government of India Act, 1935, Expert Committee Report of 1947, recommendations of the Judges Conference 1948, the Constituent Assembly debates, the purport of Article 217 of the Constitution, the principles contained in S.P. Gupta’s case12 and the non-observance of the Memorandum of Procedure and observed as follows in paras 6.10 and 6.11: “6.10 The fact situation aforesaid has led to a loss of credibility and a serious threat to the independence of the judiciary. Alarmed by this development, the Law Commission, jurists, academicians, lawyers, etc. bestowed serious thought upon the matter. An almost unanimous voice came to be echoed to minimize the executive’s say and to vest the last word in the matter of appointment of judges in the Chief Justice of India. 6.11 The present system of appointment of Judges to the High Courts has been in vogue for about four decades. It functioned satisfactorily as long as the well-established conventions were honoured and followed. The gradual, but systematic violation and virtual annihilation of the conventions over the past two decades or so is essentially responsible for the present unfortunate situation. Has the system, therefore, failed or have the concerned failed the system is an all important question. It is apparent that the
12

Ibid

system has not failed, but all those concerned with operating the system have failed it by allowing it to be perverted.” 2.2.16.1 Recommendations of the Arrears Committee: The Committee then noticed the 80th Report of the Law Commission (which affirmed the correctness of the existing procedure) submitted in 1979 as well as the 121st Report of the Law Commission (which suggested the constitution of the National Judicial Service Commission). The Committee also referred to Bhagwati J’s opinion in S.P. Gupta, views expressed at the seminar organized by Bar Council of India Trust at Ahmedabad in October 1980 and to the views expressed by Justice Y.V. Chandrachud, then Chief Justice of India in 1983 regarding the constitution of a collegium. After examining the aforesaid material in extenso the Committee made the following recommendation: “6.19 One common thread which passes through the various suggestions is that the role of the executive in the matter of appointment of Judges should be diluted and that the cause for most of the ills in the functioning of the present system could be traced back to the veto power of the executive. This, indeed, is capable of being remedied by making certain amendments to Article 217 providing for concurrence of the Chief Justice of India, instead of consultation with him, in the matter of appointment of Judges of the High courts. The Committee is conscious of the fact that the recommendation of the joint Conference of the Judges of the Federal Court and Chief Justice of the High Courts, convened by the Chief Justice of the Federal Court, and also a specific amendment moved to Draft Article 193 (corresponding to Article 217 of the Constitution), providing for concurrence of the Chief Justice of India came to be rejected, when the articles concerning the judiciary came up for debate, in the Constituent Assembly. However, it cannot be overlooked that Dr. Ambedkar had expressed the view that the provision regarding consultation with the President of India and the Chief Justice of India was “sufficient for the moment”. The experience of the working of Article 217 for the last about two decades has belied the hope and belief expressed by Dr. Ambedkar. A time has come to revive the proposal with regard to the concurrence of the Chief Justice being made a pre-requisite to the appointment of Judges. The Satish Chandra Committee had also expressed a similar view. The misgivings and apprehensions which weighed in rejecting the proposed amendment during the debate in the

Constituent Assembly can be allayed by providing that the Chief Justice of India should consult such of the senior Judges of the Supreme Court as he deems necessary, besides the Chief Justice of the High Court concerned before giving his concurrence. 6.20 In the light of the foregoing discussion, the Committee proposes that the main portion of clause (1) of Article 217 be substituted as follows: “217 (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with 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 and with the concurrence of the Chief Justice of India, and shall hold office until he attains the age of sixty-two years: Provided that the Chief Justice of India shall give concurrence after consultation with such of the Judges of the Supreme Court as he deems necessary and the Chief Justice of the High Court concerned.” The Committee further recommends that in the existing proviso to clause (1) of article 217, the word “further” be added in between the words “provided” and “that”. In view of the recommendation of the Committee regarding deletion of Article 224, the expression “in the case of an additional or acting judge, as provided in Article 224, and in any other case” has not been incorporated in the amendment proposed above.”(The Committee also examined the issue of transfer of High Court Judges and after an elaborate discussion, recommended amendment of Article 222 making the consent of the concerned Judge a condition for his transfer).

2.2.16.2 With respect to the appointment of Chief Justice of India dealt with by Article 124(2), the Committee made the following recommendation in para 7.20: “7.20 The Committee, therefore, recommends that the second proviso to Article 124(2) be deleted and an appropriate proviso be substituted to the effect that the senior most Judge of the Supreme Court shall ordinarily be appointed as the Chief Justice of India. However, in case he

is not proposed to be appointed as Chief Justice of India, reasons therefor shall be recorded in writing and the appointment shall then to be made in consultation with the seven Judges next in order of seniority to the senior most Judge, after communicating to them the recorded reasons.” 2.2.17 Purpose of 67th Amendment Bill served by the judgement in SCAORA: It would be evident from the several methods of appointment (to Supreme Court and High Courts) suggested by the various bodies, committees and organizations, the method and procedure of appointment devised by the 1993 decision of the Supreme Court in SCAORA13 and in the 1998 opinion rendered under Article 143 that, the 1993 decision gives effect to the substance of the Constitution (Sixty-seventh Amendment) Bill, without of course calling it a ‘National Judicial Commission’, and without the necessity of amending the Constitution as suggested by the said Amendment Bill. Indeed, it carries forward the object underlying the Amendment Bill by making the recommendations of the Chief Justice of India and his colleagues ‘binding’ (primacy of opinion) on the President. The 1998 opinion indeed enlarges the ‘collegium’. In this sense, the purpose of the said Amendment Bill evidenced by the proviso to Article 124(2) and the Explanation appended thereto is served, speaking broadly. The method of appointment evolved by these decisions has indeed been hailed by several jurists and is held out as a precedent worthy of emulation by U.K. and others. (See the opinion of Lord Templeman, a member of the House of Lords, cited hereinabove.) The said decisions lay down the proposition that the “consultation” contemplated by Articles 124 and 217 should be a real and effective consultation and that having regard to the concept of Judicial independence, which is a basic feature of the Constitution, the opinion rendered by the Chief Justice of India (after consulting his colleagues) shall be binding upon the Executive. In this view of the matter, much of the expectations from a National Judicial Commission (N.J.C) have been met. The said Constitution Amendment Bill was, it would appear, prepared after a wide and elaborate consultation with all the political parties and other stakeholders. However, the aspect disciplinary jurisdiction remains unanswered. 2.3 Position prior to Constitution in United States of America Prior to the adoption of the Constitution, the United States was governed by the Articles of Confederation. Under the Articles, almost all functions of the national government were vested in a single-chamber legislature called Congress. There was no separation of executive and
13

1993(4) SCC 441

legislative powers. The first proposal presented to the Constitutional Convention was the Virginia Plan, which would have set up both a Supreme Court and inferior federal courts. Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially disturbed by the idea of lower federal courts. They argued that the state courts could hear all cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to protect national rights and provide uniform judgments throughout the country14. The delegates gathered at the Constitutional Convention in Philadelphia in 1787 expressed widespread agreement that a national judiciary should be established. The present Constitution of United States America was adopted at the Philadelphia Convention held on 17th September 178715. It came into force on 4th March 1789, after it had been ratified by the minimum required number of states. Later on the Judiciary Act of 1789, set up a judicial system composed of a Supreme Court, consisting of a chief justice and five associate justices; three circuit courts, each comprising two justices of the Supreme Court and a district judge; and 13 district courts, each presided over by one district judge. The U.S Constitution provides for the Presidential type of government in the U.S. All executive powers are vested in the President. The appointment of Federal judges is an executive power vested in the President of United States of America (President). Supreme Court justices are appointed by the President with the Advice and consent of the Senate and, like other federal judges, hold office during “good behaviour”16. There is no specific tenure for retirement of Justices under American Constitution. Under the system of checks and balances followed in the US, judges to be appointed to the Supreme Court are nominated by the President, but the consent of the Senate is necessary for the confirmation of the appointments. This is not a special procedure for judicial appointments, but is what the Constitution stipulates for all senior appointments by the US government. The US
14

Outline of the U.S legal system for more details http://usinfo.state.gov/products/pubs/legalotln/federal.htm accessed on 19th November, 2008.
15

V. Bhagwan,(rev.) ‘World Constitution’, 6th revised ed. Sterling Publishers Private Ltd. Article III of the American Constitution.

16

Presidents have always zealously guarded the power of nomination of a person to the Supreme Court in the US; equally zealous has been the Senate in the exercise of its power of confirmation. Out of the 132 nominations made by the Presidents ever since the Supreme Court started functioning, the Senate had refused confirmation in as many as 27 cases. There have also been many instances of US Presidents trying to apply indirect political pressure on the Supreme Court when they found the Court’s stand unhelpful in pursuing certain policies, which they wished to push. President Roosevelt in 1937 attempted to create five more judges’ posts in the Supreme Court and to nominate persons who were known to be sympathetic to his New Deal policies. President Reagan had used his enormous personal influence to appoint to the Supreme Court persons supportive of his right-wing philosophy. President Bush insisted that another AfroAmerican fill a post in the Supreme Court vacated by an Afro-American judge, though the Senate had strong reservations on the President’s candidate based on some adverse reports on him. The President could get the confirmation for his nominee only by a narrow 52:48 vote in the Senate. These instances clearly show how different the US system is from that in India and how impracticable it will be to draft it on the Indian Constitution. The Supreme Court’s decision of 1993 has reduced the executive’s role in the appointment of judges to the minimum level and if the judges are also allowed to continue in service for life, the concept of judicial accountability in India will get diluted more drastically.

3. CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATIONS ON THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND USA
3.1 Constitutional Provisions and process of appointment of judges in India

3.1.1. Appointment of Judges to the Supreme Court Article 124(2): Clause (2) of Article 124 inter alia says 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.” Under our constitutional scheme, the President is the constitutional head. In exercise of the powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union Council of Ministers in the name of the President. Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”. The Constituent Assembly debates show that when it was suggested by some of the members that the expression should be ‘concurrence’ and not ‘consultation’, it was not agreed to. Similarly, the suggestion to provide for approval of Parliament or its upper House - probably inspired by the U.S. Constitution – was also not agreed to by Dr. Ambedkar17 3.1.2 Appointment of Judges to High Courts The procedure for appointment of Judges of the High Courts is slightly different from the one concerning the appointment of Judges of the Supreme Court. Clause (1) of Article 217 says that “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 and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years”. A reading of this clause shows that while the appointment is made by the President, it has to be made after consultation with three authorities, namely, the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. (Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice is not required). Just as the President is the constitutional head, so are the Governors. However, according to the practice, which had developed over the last several
17

Constituent Assembly debates Vol.8 p.258

decades and which was in vogue till the aforementioned 1981 decision of the Supreme Court (S.P.Gupta), the Chief Justice of the High Court used to make the recommendation which was considered by the Governor of the State (Council of Ministers headed by the Chief Minister) who offered his comments for or against the recommendation. The matter then went to the Central Government. At that stage, the opinion of the Chief Justice was sought and based upon such advice; the appointment was either made or declined, as the case may be. 3.1.3 Practice followed till 1981: A practice had developed over the last several decades

according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the position till 1981. 3.2. Judicial interpretations on the process of appointment of judges in India: The Turning Point

The beginning and end of judicial reform is the appointment of the right kind of judges, be it in the Supreme Court, the High Court or the subordinate judiciary. The appointment of judges is the prime and foremost link in the chain of judicial reform. As Justice Bhagwati would say, a right appointment “would go a long way towards securing the right kind of judges who would invest the judicial process with significance and meaning, for the deprived and exploited sections of humanity.”

The procedure as laid in the constitutional text, underwent a change after the three pronouncements of the Supreme Court, which need to be considered for a fuller and more incisive understanding of the present scenario and its effect on the selection and appointment of judges. In SP Gupta’s case, which we will call the 1st judges case, for facility of reference, the Supreme Court considered the question of transfer of a judge from one High Court to another court, without ascertaining his consent and the non-confirmation of an ad-hoc judge, the issues being crucial for the cardinal principle of ‘Independence of Judiciary’. The decision of the majority of the seven judges, affirmed the power of the executive to decide these issues and

dismissed the petitions. The question of initial appointment of judges was nowhere in issue, but the majority judgment, holding that the expression ‘consultation’ used in Art 124 (2) and 217 of the Constitution did not mean ‘concurrence’, declared that the Executive could appoint a judge, even if the Chief Justice had different views in the matter. Justice Bhagwati, delivering the majority judgment, also held that ‘consultation’ with the Chief Justice would mean that there should be a ‘collegium’to advise the Chief Justice. It was, however, not spelt out as to what should be the composition of the collegium, at this stage. It was also held that the solitary view of the Chief Justice would not constitute ‘consultation’ within the meaning of Articles 217 and 224 (2). Thus, the expression ‘colleguim’ came to be used for the first time in paragraph 29 of the judgment and it was a virtual insertion into the Constitution. In the year 1991, doubts were expressed about soundness of the S.P. Gupta judgment in Subhash Sharma vs. Union of India18, by a Bench presided over by Justice Ranganath Misra, CJ in regard to the interpretation of the word ‘consultation’ occurring in Articles 217 and 224 (2) of the Constitution and the matter was referred to a larger Bench on two points: “The view that the four learned judges shared in SP Gupta’s case, in our opinion does not recognise the special and pivotal position of the Chief Justice of India (paragraph 45). The correctness of the opinion of the majority in S.P. Gupta’s case19, relating to the status and importance of the Chief Justice of India and the view that the judge strength is not justiciable, should be reconsidered by a larger Bench”. It was further clarified in paragraph 51 that “apart from the two questions which we have indicated, all other aspects dealt with by us are intended to be final by our present order”. Consequently, a Bench of nine judges was constituted and judgment was pronounced on 6-101993, in what we shall call the 2nd judges case. The judgment runs into 306 pages and travels far beyond the order of reference. Noted jurist, Late H.M. Seervai, in his celebrated Constitutional Law of India, has called the judgment “null and void” for not following the mandatory provisions of Act 145 (4) & (5) which as per the dictum laid down by Sir Barnes Peacock, CJ enjoins that “it is a fundamental principle essential to the due administration of justice that every judicial act which is done by several judges ought to be completed in the presence of whole of them. If after discussion and after deliberately weighing the arguments of
18

AIR 1991 SC 631 Ibid

19

each other, the judges cannot agree, then several judgments ought to be delivered in the open court in the presence of others”. That the judgment was not so pronounced is evident from the lament of Justice M. M. Punchchi in his dissenting judgment. The same is quoted from paragraph 90 of the 2nd Judges case. “This nine judge bench sat from April 7, 1993 to hear this momentous matter, concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all after July 12, 1993 on the reopening of the court, if not earlier, would sit together and hold some meaningful and frank discussion on each and every topic, which has engaged our attention, striving for a unanimous decision, in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this court. I was indeed overtaken when I received the draft opinion dated June 14, 1993, authored by my learned brother Justice J.S. Verma for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha-JJ. The fait accompli appeared a stark reality, the majority opinion an accomplished fact. The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned brother Ahmadi J like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brother Kuldip Singh and Pandian-JJ dated Sept 7, 1993 and September 9, 1993, respectively. Any review meeting thereafter was not possible as the views by that time seemed to have been polarized.” It is therefore clear that there was no discussion, no meeting of minds and no consensus among the nine judges, on 14 June, 1993, when the final draft judgment was signed/circulated by Justice Verma, who spoke for himself and other colleagues (Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha JJ). The judgment therefore plainly is Per Inqurium. The 2nd Judges case declared that “the opinion given by the Chief Justice in the consultation process has to be formed taking into account the views of the two senior most judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior most judge of the Supreme Court, whose opinion is likely to be significant in adjudging the suitability of the candidate by reason of the fact that he has come from the same High Court or otherwise. Article 124 (2) is an indicator that ascertainment of the views of some other judges of

the Supreme Court is requisite. The object underlying 124 (2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion”. “In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court, which are likely to be conversant with the affairs of the concerned High Court. The Chief Justice may also ascertain one or more senior judges of that High Court, whose opinion according to the Chief Justice of India is likely to be significant in the formation of his opinion.The opinion of the Chief Justice of High Court must be formed after ascertaining the views of at least the two senior most judges of the High Court”. This procedure continued till the President of India, Rashtrapati K.R. Narayanan had doubts and required clarification and light from the Supreme Court in regard to the appointment procedure, and that is how the 3rd Judges case, Special Reference No. 1 of 1998, came to be made under Article 143 of the Constitution. The President referred 9 questions, which are not being repeated for the sake the brevity. A Bench of 9 judges was again constituted, headed by Justice S.P. Bharucha. Normally, an advisory opinion under Article 143 does not have to be binding, but the Attorney General made a statement before the Court that government would abide by the opinion of the Court. The 9 judge Bench consisting of S.P. Bharucha, M.K. Muhkerjee, S.B. Majumdar, Sujata V. Manohar, G.T. Nanavati, S Saghin Ahmad, K Venkataswami, B.N. Kinful and G.B. Patnaik- JJ answered the reference unanimously, in paragraph 44 of the reference. The Chief Justice of India must make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior most puisne judges of the Supreme Court. In so far as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most -puisne judges of the Supreme Court. The court further held that “the requirement of consultation by the Chief Justice of India with his colleagues, who are likely to be conversant with the affairs of the High Court concerned, does not refer only to those judges who have that High Court as a parent High Court. It does not exclude judges who have occupied the office of a judge or Chief Justice of that High Court on transfer”.

The court also clarified that “the views of the other judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views...” Today, we are back to square one because there is a hue and cry that the consultative procedure has become not only cumbersome, but well nigh impossible. The Chief Justice of a High Court is, by the policy of the government, a judge from outside the state who has little information and knowledge in regard the legal practitioners in the state. In many a state, seniormost judges constituting the collegium are from outside, with the result that appointments suffer for want of adequate information. It maybe noted that broadly there are two areas of enquiry. One is the area of legal acumen of the candidate to adjudge his/her suitability and the other is antecedents. The Chief Justice of India and other judges of the Supreme Court and High Court can only judge legal acumen. They have no access to the antecedents of a candidate, for which the Executive is the best judge. It is also to be argued that the collegium has now to consist of four (instead of two) senior most judges of the court in the appointment of a High Court judge. The Supreme Court judge, acquainted with the particular High Court is also to be consulted, raising the number to six. The increased number of consultees has made the consultation process cumbersome and delays in filling up vacancies are bound to occur. Every communication has to be in writing and the views of the consultees are to be communicated to the government. There is no indication as to what happens if there is no consensus among the consultees or if the majority disagrees with the Chief Justice of India. S.P. Gupta’s case has already laid down that the entire correspondence between the various authorities concerned is open to public scrutiny (since the entire record was summarised and made public in that case). Justice Verma who wrote the lead judgement in the 2nd Judges case was asked by V. Venkatesan of Frontline dated 10.10.08, “My 1993 judgement, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgement says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it. Broadly, there are two distinct areas. One is the area of legal

acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues (who) are the best persons to adjudge the legal acumen. Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgement said that in the area of legal acumen the judiciary’s opinion should be dominant and in the area of antecedents the executive’s opinion should be dominant. Together, the two should function to find out the most suitable (candidates) available for appointment.” The views of the government are reflected in the newspaper report (Hindustan Times) of 19 October, 2008 and I quote the relevant extract: “The government has accepted a parliamentary panel’s recommendation to scrap the present procedure for appointments and transfers of Supreme Court and High Court judges…The Law Ministry has agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law & Justice recommended doing away with the committee of judges (collegium). Presently, the collegium decides the appointments and transfers of judge”.

The question is, from here where do we go? Do we restore the 1982 judgment, which was the starting point of the collegium or do we accept the primacy of the Chief Justice and the power of the executive for appointment of judges, which practice has prevailed since the inception of the Constitution? These are questions of vital importance, which will have to be settled by the Supreme Court by reviewing the three judgments, which have held the field since 1982. Alternatively, the government can amend the Constitution. If the amendment is challenged, the entire matter will be opened before the Court. 3.2.1 The Controversy

While the method of selection (appointment by Government being a mere formality) to subordinate judiciary has not evoked any controversy, the method of appointment to and more particularly the actual manner in which appointments were made to the High Courts and the Supreme Court has been a subject matter of good amount of controversy, whether before the decision in S.P. Gupta or thereafter and even after the 1993 decision of the Supreme Court in

Supreme Court Advocates-on-Record Association. While the decision in the S.P. Gupta was criticized for upsetting the existing situation by vesting the power of appointment in the executive and by diminishing the importance of the Chief Justice of India and the judiciary, the 1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by the critics of the 1993 decision that in a democracy, accountability is an important consideration and the authority or authorities making such appointments should be accountable to the people. A distinction is made between appointment and functioning. While in the matter of functioning, the executive can have no say, it is said, the executive must be necessarily involved in the process of appointment. The argument is that someone must be responsible for the appointment made and since Chief Justice of India or his colleagues are not accountable to the people, the concentration of power of appointment in them is undemocratic. The argument further is that the executive is accountable to the Legislature, which in truth represents the will of the people – the consumers of justice - and that involvement of Executive is the only way of infusing the element of democracy and accountability in the process relating to the appointment of judges of the High Courts and Supreme Court. The contrary argument in support of the existing method (ordained by the decisions of the Supreme Court in 1993 and 1998 aforementioned) is that in Indian conditions and culture, entrusting this power to, or involvement of the Executive in the appointment process is bound to prove detrimental to the independence and integrity of the judiciary, as the experience during the years 1973 to 1977 and again during the period 1982 to 1993 (period during which S.P. Gupta held the field) shows. The supersessions, arbitrary and motivated transfer of Judges of High Court, the manner in which additional Judges in High Courts were dealt with (either by extensions for short periods or by not confirming them), the several attempts at muzzling the judiciary during the period 1973 to 1977 (including the supersession of senor-most judges of the Supreme Court in the matter of appointment of Chief Justice of India) and the manner in which several appointments were made during 1981 to 1993 are all said to furnish proof of the fact that in our present stage of development, the domination or involvement of the executive in this process is not desirable. It is said that democratic culture has not yet taken root in our country and that feudal tendencies are very much part of our thought and action. The attempt to control every institution, personalized rule, refusal to see the merit of diffusion of power of governance (a basic feature of democracy) are propensities which are not conducive to an independent and efficient judiciary. If the vesting of the power of selection of

subordinate judiciary in the High Courts exclusively is not bad, how does the selection of Judges of High Courts and the Supreme Court become bad – goes the argument. It is further pointed out by the proponents of this point of view that today executive is the biggest litigant and the power vested in the Supreme Court and the High Courts by Articles 32 and 226 respectively is intended to act as a check upon the executive and that today the major portion of the work in every High Court and the Supreme Court is under these provisions; if so vesting the power of appointment, whether wholly or partially, in the executive is bound to prove prejudicial to this constitutional perspective. The U.K. example, it is said, is not relevant to this country at the present stage of development and in so far as U.S.A. is concerned, it cannot and ought not to be emulated in this country, more particularly after the recent episode (the un-edifying manner in which the judiciary in that country acted in the Bush-Gore election controversy). Incidentally, the American experience reinforces the inadvisability of executive’s role in the matter of appointment. However, under the Indian Constitution the said power of appointment of judges neither resides exclusively in the Judiciary, as because the Indian Constitution has provided for the “participatory and consultative” method of appointment process by way of consultation with the judiciary giving primacy to neither of the wings. But the said balance as intended is not followed in the present process of appointment of judges which is a matter of serious concern as the guardian of the constitution is itself acting beyond what the constitution has expressly provided thereby bringing the process of appointment of judges justiciable and subject to judicial review.

3.3 Constitutional Provisions and Process of Appointment in U.S.A
3.3.1 Background and the Structure of the Judicial System (Federal and State Courts)

The judicial system in the United States is known as dual court system, which means both state and federal governments have their own set of courts. Thus, there are 51 separate sets of courts in the United States, one for each state and one for the federal government. The project will discuss the process of appointment of judges of federal courts only. The judicial structure of the courts in the United States of America is well explained with the help of the diagram. (Appendix-I)

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is important because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive lifetime appointments. Such job security in the government has been conferred solely on judges and, by constitutional design, helps insure the Court’s independence from the President and Congress. The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause”20 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature — the sharing of power between the President and Senate — has remained unchanged: To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. On rare occasions, Presidents also have made Court appointments without the Senate’s consent, when the Senate was in recess. Such “recess appointments,” however, were temporary, with their terms expiring at the end of the Senate’s next session. The last recess appointments to the Court, made in the 1950s, were controversial because they bypassed the Senate and its “advice and consent” role. The appointment of a Justice might or might not proceed smoothly. From the first appointments in 1789, the Senate has confirmed 122 out of 158 Court nominations. Of the 36 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of committee or Senate opposition to the nominee or the President, were withdrawn by the President or were postponed, tabled, or never voted on by the Senate. Over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for excellence in a nominee. However, politics also has played an important role in Supreme Court appointments. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp

20

Article II, Section 2, clause 2

partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake. 3.3.2. Methods of Appointment Section 2, Article II, the United States Constitution states: "[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States…” Justices of the Supreme Court, judges of the Circuit Courts of Appeals and the District Courts [i.e. included under "all other officers of the U.S." referred to in the Constitution] all are appointed by the President of the United States with the advice and consent of the Senate. These justices and judges are appointed for life, and they can only be removed through impeachment by the Congress. There is no statutory qualification for judicial appointment to the Supreme Court or the lower federal courts.

3.3.3

Process of Appointment of Judges of the Federal Courts

The process of appointment of Judges of the federal court is discussed briefly:1. Vacancy

The process of appointment of a federal judge starts from the occurrence of a judicial vacancy. The vacancy of a judgeship may arise from death, resignation, and retirement of a judge. Also, vacancies can arise from legislation creating new judicial position and impeachment by the Congress. The process of appointment of federal judges is summarized with the help of a figure (Appendix-II)

2.

Selection and Nomination of Candidates by the President

The President nominates candidates for justices and judges to the Senate after he receives recommendations from the Department of Justice and his own White House staff.
Department of Justice

The Department of Justice, which is supervised and directed by the Attorney General, is responsible for making recommendations to the President concerning appointments to federal judicial positions. Within the Department, the Office of Policy Development (OPD) has primary responsibility for the judicial selection process of all Article III judicial vacancies. The staff of the OPD interview a prospective nominee in person. They ask federal and state judges, prosecutors, and defenders as well as other attorneys and support staff about the candidate’s reputation and merit for the federal bench. They also examine any articles written by or about the candidate, and review all of the cases, news, writings, and web sites mentioning the candidate, as well as financial disclosure statements and a physician’s evaluation of the candidate’s health. A questionnaire is sent to the potential candidate to collect his or her personal data. The OPD does not solicit the candidate’s personal views on constitutional interpretation or political issues. Instead, the candidate is asked whether he or she has any views that would prevent the candidate from following the precedents of the higher courts or from being fair and impartial in all cases that might come before the court. If the preliminary evaluation of a prospective nominee is positive, the candidate’s name will be transmitted to the Federal Bureau of Investigation for investigation and to the American Bar Association (ABA), an independent non-governmental organization, for evaluation.
Federal Bureau of Investigation

The Federal Bureau of Investigation's (FBI) investigation of potential judicial nominees is focused on general background issues. FBI agents usually begin their investigation by interviewing the judicial candidate to confirm the accuracy of the candidate’s security questionnaire, which requires information to verify education, jobs, and residences, as well as any background issues since the candidate’s eighteenth birthday. FBI agents also interview federal and state judges and other government officials, as well as attorneys, business and civic

leaders, religious and civil rights leaders, neighbours, and doctors. They also check for arrests and convictions, civil lawsuits, and credit history. Additionally, a check on the candidate’s tax record is included in the file. The OPD has stated that the FBI investigation is a critical component of OPD’s evaluation of the candidate’s suitability for the federal bench.
The American Bar Association

The American Bar Association interviews judges and lawyers in the candidate’s community about the candidate’s qualifications, including temperament, and also interviews the candidate. At the end of the ABA process, the ABA sends an informal piece of advice to the Department of Justice on its rating of the candidate as “well qualified,” “qualified,” or “not qualified” if the President were to nominate the candidate. If the ABA rating is positive, the FBI report is satisfactory, and the Department of Justice’s evaluation is favourable overall, the Attorney General formally recommends the nomination to the President.
The White House

The White House Counsel’s Office works closely with the Department of Justice in the selection of potential federal judges. Also, the Office works as closely as possible with Senators, and also considers recommendations by Members of the House of Representatives, state Governors, state judicial selection panels, bar associations, government officials, and citizens.
President

The papers sent by the Department of Justice to the President include: 1. A letter from the Attorney General to the President formally recommending the nomination; 2. A memorandum from the Deputy Attorney General to a "designated" White House Assistant "touching on matters not in the Attorney General's formal letter" (typically who recommended the candidate and what political clearances were obtained); 3. The candidate's resume or biographical sketch; 4. A summary of the FBI Report along with the complete report itself; and 5. All other file material on the candidate including the response to the personal data questionnaire.

If the President approves the nomination, he signs it and sends it to the Senate.Following the nomination, the Department of Justice submits the FBI Questionnaire, the results of the FBI background investigation and the entire Senate Questionnaire to the Senate.

3.

Confirmation by the Senate

The Senate acts in a unicameral capacity when it confirms federal judicial nominations. As the Constitution provides, only the Senate's "Advice and Consent" are necessary for the appointments of Judges of the Supreme Court and all other Officers of the United States. The House of Representatives is not involved in the process of appointment of federal judges. Within the Senate, the consideration of appointments to judicial positions is the responsibility of the Committee on the Judiciary.
The Committee on the Judiciary

The Senate Committee on the Judiciary or the Judiciary Committee consists of 18 members. Following the rule that majority party in the Senate controls a majority of committee seats, voting results on the Committee are generally representative of the voting preference in the full Senate.

Investigation The Senate Judiciary Committee has its own staffers to examine the background of a judicial nominee. The bulk of the investigation is conducted by the staff of the Chairman and the minority party leader on the Committee. The investigation involves reviewing the FBI Questionnaire, the results of the FBI background investigation and the entire Senate Questionnaire. The Committee staffers ask the home state Senators of the nominee for their opinion and conduct phone interview with the nominee to clear up any ambiguity encountered in the file. Any information discovered by the staffers will be reported to the Committee members. Confirmation Hearing

When the nomination is referred by the Senate, the Judiciary Committee is authorized to hold confirmation hearing, and to take testimony by requiring by subpoena the attendance of witnesses and the production of correspondence, books, paper, and documents. The confirmation hearings conducted by the Committee are open to the public, and may be broadcast by radio or television. The confirmation hearing of a Supreme Court Justice nominee starts by the Senate Judiciary Committee Chairman’s opening statement which is followed by endorsement of the nominee by prominent supporters, normally home state Senators. The nominee is invited to give an opening statement. Then, the hearing will proceed to the questioning time of the nominee by the Senators. After the nominee has given his testimony, other witnesses may follow and lend their support for or opposition to the nomination. Voting After the confirmation hearing, Committee members will vote on the nomination. The quorum of the Judiciary Committee is ten; while vote by proxy is allowed, proxies are not counted for making a quorum. If a nomination gets a majority vote, it will go to the Full Senate. If the Committee rejects a nomination with a majority vote, the nomination will be returned to the President. In effect, the nomination dies. However, after rejecting a nominee, the Committee may, if it chooses, vote to report the nomination to the floor - but it will be with an unfavourable recommendation. When the Committee adjourns at the end of a session, all of the nominations still pending in Committee stage will be returned to the President.

Full Senate All judicial nominations reported from the Senate Judiciary Committee are considered by the Senate in executive sessions. If a nominee is non-controversial, quite often the nomination will be passed by unanimous consent and no floor debate is necessary. Confirmation of a nomination requires a majority vote of the Senate. If a nominee is controversial there may be floor debate on the nomination (this is only by Senators and the nominee is not present in executive sessions). Historically, nominees who received an unfavourable recommendation by the Senate Judiciary Committee have never been voted favourably by the Full Senate. The President is, from time to time, furnished with an authenticated transcript of the public executive records of the Senate with a list of all judicial appointments, confirmations and rejections.

4.

Appointment by the President

When the Senate gives its advice and consent, the President signs the judicial commission which officially appoints the individual. Historically, six judicial nominees declined the appointments despite the Senate's confirmation and the President's appointment, and the last declination happened in 1882.
Recess Appointment

Under the US Constitution, Article II, Section 2, Clause 3, the President: "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." When the Senate is not in session, and therefore unable to receive nominations, the President may make recess appointments. The Senate will then consider the nomination when it returns to session. A recess appointee exercises the same authority as an appointee who has been confirmed by the Senate, although he or she may not command the same deference. The last appointment of a judge under this recess authority occurred in 1981.

3.4

The Role of the Legislature in the Process of Appointment of Judges

In the U.S., the U.S. Congress is heavily involved throughout the process of appointment of federal judges. This includes both selection of candidates and confirmation of nominations. Selection of Candidates The Congress's influence in the selection of potential candidates lies in its capacity to make recommendation on potential nominees. According to the information obtained from the Senate Judiciary Committee, it states: “The names of potential nominees [for Supreme Court justices, court of appeals judges, and district court judges] often are recommended by Senators or

sometimes members of the House [of Representatives] who are of the President's political party…” District Courts Traditionally, Senators are asked to recommend one to three potential nominees for a district court vacancy in the state which the Senators represent. It is reported that the process of selecting judicial nominees has become more time-consuming and prolonged in district courts level as Senators are slow in making recommendations for district court vacancies. Supreme Court and Circuit Courts The involvement of Senators in the process of selecting candidates for the Supreme Court and circuit courts judicial vacancies is slightly lighter. The Supreme Court and circuit courts have jurisdictions that span the whole nation and several states. The President therefore has greater discretion and defers less to individual Senators when selecting nominees for the Supreme Court and circuit courts. When a vacancy appears on the Supreme Court or a circuit court, some Senators may seek to influence the selection of the new nominee. In such cases, the President may need to take their recommendations into account for political reasons.

Blue Slips Before 1979, the counsel of the Senate Judiciary Committee sent out “blue slips” to the two Senators from the nominee’s state and if it was returned marked “objection” by either Senator regardless of party, the custom was that no confirmation hearing would be scheduled. This custom was changed after Senator Edward Kennedy became the head of the Committee. He made it clear that Senators who withheld the “blue slips” of persons nominated for judgeships from their states could no longer rely on the chairman to kill those nominations. At present, though negative blue slips cannot kill a nomination customarily, it remains a common way to collect opinions of the Senators from the nominee's state.

Confirmation of Nominations For years when there is a divided government with the President and the majority members in the Senate coming from two different parties, intentional delays may result in Senators refusing to bring controversial nominations to a vote, and instead using stall tactics to exhaust nominees and force their withdrawal. In 1999 and 2000 (updated to 11 August 2000), there were respectively 50 and 60 federal judiciary vacancies. According to a study, the Senate took an average of 201 days to confirm President Clinton's judicial nominees, as opposed to 144 days during President Bush's administration, and 138 days during the Reagan administration. 3.5 Summary of the process of Appointment of Judges in United States of America

1. Section 2, Article II, the United States Constitution states: "[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States…” All federal judges are appointed by the President of the United States with the advice and consent of the Senate. 2. The process of appointment of a federal judge starts from the occurrence of a judicial vacancy. The Department of Justice with the White House staff recommend judicial nominations to the President. If the President approves, the nomination is signed and sent to the Senate.

3. Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees will be investigated, testified and the nomination voted in the Committee. As the majority party in the Senate controls a majority of the committee seats, the voting results on the Committee are generally representative of the voting preference in the full Senate. 4. Confirmation of judicial appointments requires a majority vote of the Senate. All nominations must be acted on in a session or they die at the end of the session. If a nomination is not acted upon, they must again be made to the Senate by the President. When Senate gives its advice and consent, the President signs the judicial commission which officially appoints the individual.

5. The influence of Senators in the stage of selecting nominees lies in the Senators' ability to recommend potential nominees. Senators will be asked to recommend potential nominees for a district court vacancy in their home state. In the cases of the Supreme Court or circuit courts nominees, the President may need to take Senators' recommendations into account for political reasons. 3.6 Judicial Interpretation of Appointment of Judges in America- Its Turning Point

In the famous case of Marbury V. Madison21The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees filed the suit directly in the Supreme Court under section 13 of the 1789 Judiciary Act, seeking a writ of Mandamus to compel Madison to deliver his commission. Question Raised was- Is Marbury entitled to his appointment? Chief Justice John Marshall concluded thatYes, justice Marshall concluded that Marbury’s appointment was complete upon his authenticated signing by the President. Two recent Supreme Court cases offer a modicum of guidance on the distinction between principal and inferior officers. In Morrison v. Olson22, the Court determined that an independent counsel was an inferior officer because her duties were limited, her performance of them was cabined by the policies of the Department of Justice, her jurisdiction was confined to particular matters, her tenure was restricted to the time it took to complete her assignment, and she held office subject to removal by the Attorney General. In so holding, the Court eschewed a precise formula for determining whether an officer is "inferior," declaring that it had no need to "decide exactly where the line falls between principal officers and inferior officers."

21

5 U.S. 137 (1803); Constitutional Law book by Calvin R. Massey.

22

487 U.S. 654 (1988)for more details http://supreme.justia.com/us/487/654/case.html accessed on September 19 2008

In another case of US Supreme Court Jon E. Edmond, v. United States23 The Court defined the term "inferior officer" as encompassing those "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"24. The Court did not overrule Morrison, however, but cited it as precedent. In Mistretta v. United States25, in this instance, Congress chose to place the appointing power visà-vis interim United States Attorneys partially in the judiciary. If authorizing judges to make such appointments is incongruous with the appointers' judicial duties or unduly interferes with the proper functioning of the Executive Branch, any appointments so made would be null and void. "While our Constitution mandates that 'each of the three general departments of government must remain entirely free from the control or coercive influence, direct or indirect, of either of the others,' the Framers did not require and indeed rejected the notion that the three Branches must be entirely separate and distinct”26. In an another interesting case, United States of America v. Fermin Hilario27, Fermin Hilario moved to dismiss an indictment brought against him, claiming that the protracted tenure of a court-appointed interim United States Attorney contravened applicable federal statutes, violated the Appointments Clause, offended the separation-of-powers principle and, in the end, rendered the indictment a nullity. As a general rule, United States Attorneys are nominated by the President and, if confirmed by the Senate, serve four-year terms. But Congress selected a different method for interim appointees. So when the United States Attorney for the District of Puerto Rico resigned in May of 1993, Attorney General Janet Reno appointed an Assistant United States Attorney (AUSA),
23

520 U.S. 651, 659-60 (1997) for Details http://www.law.cornell.edu/supct/html/96-262.ZO.html accessed on 19 September 2008;
24

520 U.S. at p. 663 488 U.S. 361, 381-82 (1989) Mistretta, 488 U.S. at 380 For more details www.ca1.uscourts.gov/pdf.opinions/00-1406-01A.pdf last accessed on 23.9.2008

25

26

27

Charles Fitzwilliams, to fill the resulting vacancy. Because the President failed to name a replacement within 120 days, Fitzwilliams's appointment lapsed and the position once again became vacant. On September 9, 1993, the judges of the United States District Court for the District of Puerto Rico responded to the exigency and appointed a career Justice Department lawyer, Guillermo Gil, as interim United States Attorney. The question which was raised by such appointment wasa) Whether the appointment offends the separation-of powers principle? The Court concluded “Should the stand-in remain so long in office that he became indistinguishable from the latter, an argument could be made that his continued service required nomination by the President and confirmation by the Senate” and that Gil's appointment and continued service as interim United States Attorney for the District of Puerto Rico comply with the Appointments Clause28, and the doctrine of separated powers. Consequently, the indictment against Hilario was duly authorized. It should not have been dismissed.

Chapter 4 Comparative Analysis of Appointment of Judges in India and US
COMPARISON The appointment of judges in both the countries has been granted as executive power of the President by both the Constitutions. But in India the appointment is made with the ‘consultation with judiciary’, whereas in U.S the appointment is made with ‘parliamentary approval’. Both the nation follows the ‘appointive system’ of judicial appointment where the appointments are made by the executive government. At one time appointment of judges in U.S.A were used to be made by the ‘elective method’ of appointment of judges, but during the latter part of the nineteenth century, the general trend begin to move away from the elective system.
28

28 U.S.C. § 546(d),

Now the Comparative analysis as to the process of appointment of judges between India and U.S.A can be better made by comparing the two methods in which the appointive method of appointment of judges is employed, i.e.the appointive method with ‘parliamentary approval’ and appointive method in ‘consultation with judiciary’. These mechanism were followed in order to reduce the exclusive executive power to appoint judges.Since, the process as to appointment of judges has already been discussed in detail, this chapter would only focus on merits and demerits of the methods of appointment of judges in India and U.S.A. Parliamentary Approval (Method of appointment in U.S.A) Under this mechanism the executive government initially selects the candidates for judicial office, but makes formal appointments only when the selections are approved by parliament. For example, in the United States the President nominates and ‘by and with the Advice and Consent of the Senate’ appoints federal judges. Parliamentary approval provides a check on the power of the executive and there is scope for public scrutiny of the appointment process. Nevertheless, this system has some inherent defects. Firstly, parliament has nothing to do with the initial stages of selecting candidates. Since the initial selection of candidates is a vital issue in appointing judges and it is exclusively vested in the executive, this system may not be effective to control preeminent political or other relevant considerations in selecting candidates for judicial office. Rather it may foster an increasing tendency to introduce political bargaining. Secondly, although the requirement of approval by parliament may impose some restrictions on the discretion of the executive government, it may not be effective to change the basic form of ‘political infighting’. Moreover, it may ‘result in the kind of coalition building behaviour common in other legislative matters’. Thirdly, if the party in power commands a majority in parliament, political ‘patronage may still be a strong factor’ in appointing judges. Therefore, though parliamentary approval has some implications for checking exclusive executive power in appointing judges and making the appointment process open to the public through parliament, it has serious drawbacks. The parliamentary mechanism is transparent and open to public scrutiny, but if there is a majority in Parliament, nothing can be done: even if the public does not approve of the appointment. Consultation with Judiciary and Legal Profession (Method of appointment in India)

On the contrary India follows an appointive method of judicial appointment in consultation with the judiciary. The constituent assembly completely rejected the role of legislatures in the appointment of Judges. But the Indian Constitution is silent on the aspect of the primacy of opinion of Chief Justice of India in the matter of appointment of judges and rather it provides the balanced approach in the matter of appointment of judges giving primacy to neither of the wings nor the executive nor the judiciary. In other words the constituent assembly had intended a totally different model for appointment of Judges i.e. ‘co-operative and consensual’ consultative process for the appointment of judges in India which is not followed in India presently for the reasons unknown and the judicial interpretations had further confused the whole issue. Generally, under this method of appointment executive government appoints the judges in consultation with the senior judiciary and legal profession (i.e executive primacy followed till 1993 Judgment which nullified the role of executive in the appointment process). Senior members of the judiciary and legal profession are consulted, and the consultations may be formal or informal. Judges are in a position to assess the performance of lawyers who are to be appointed to judicial office. Therefore, consultation with members of the higher judiciary is very significant in appointing the best-qualified persons to judicial office. It is an important means to strengthen the independence of the judiciary Consultation with members of the legal profession is also very important. A body representing the legal profession may be able to assess the character and ability of the lawyers to be appointed as judges. It can help to select suitable persons for judicial office. Therefore, the consultation system has significant implications for the quality of the judiciary and public confidence in it. However, it has a serious limitation, because the efficacy of consultations depends mostly on the attitude of the executive government. It could be that after consultation with the judiciary and legal profession the executive government will ignore the opinion given by them. Thus the ultimate weight of the consultation system is dependent on the executive. If the executive is reluctant to give due consideration to the advice of the judiciary and legal profession, this system is useless. In fact, consultation should be an effective consultation and in this regard the Indian system of consultation with the judiciary is worth consideration.

Chapter 6 Conclusion and Suggestions
From the above discussions it can be concluded that in the three judges cases, I, II & III – S.P.Gupta Vs UOI reported inAIR1982 Supreme Court149, Supreme Court Advocates on Record Association Vs UOI reported in 1993(4) SCC 441 and Special Reference 1 of 1998 reported in 1998(7) SCC 739, the Supreme Court has virtually re-written Articles 124(2) and Articles 217 which pertain to appointment of Supreme Court Judges respectively. The word “collegium” is no where present in the constitution. It was first used by Bhagwati J. in the majority judgement of S.P. Gupta vs. UOI (4:3).Again in the Presidential reference the expression “collegium” and

“collegium of judges” has been freely used. It is submitted that any addition of words in the constitution would not be permissible under the interpretive jurisdiction of the Supreme Court. The Supreme Court has to interpret the constitution as it is. Secondly, the advisory opinion in the guise of clarifying doubts raised regarding the norms laid down in the Judges II case has virtually reviewed its earlier decision. It is respectfully submitted that the opinion expressed in an advisory opinion is contrary to the plain language of article 124(2). What the article says is that the President shall consult the Chief Justice of India and such of the judges of the Supreme Court or the high court as he deems necessary. The article does not place any ceiling or limitation on the number of judges other than the Chief Justice of India to be consulted. The President should always act on the aid and advice of the Council of Ministers (Article 74). However, contrary to what was said in the Constitution, both the Judges II and Judges III cases have laid down that consultation with the Chief Justice of India means a collegium consisting of the Chief Justice of India and two or four judges as the case may be. Further, in both the cases it was stated that it is the Chief Justice of India who should consult with collegium of judges, whereas Constitution says that the President should consult the Chief Justice of India and such judges as he deems necessary.

Thirdly, the three judges cases, i.e. the two judgments of the Supreme Court and one opinion on a Special Reference have all dealt with the scope of “consultation” and it was in the Second Judges Case that the Supreme Court evolved the concept of ‘primacy’ for the opinion of the Chief Justice of India, which itself was to be based on a consultative process amongst the senior colleagues of the Chief Justice of India. At the hearing of the Special Reference for the opinion of the Court about the extent of the ‘consultative’ process, it was conceded on behalf of the Executive (and recorded in the Court’s opinion) that the Government was not seeking a review or reconsideration of the judgment in the Second Judges case and that it would accept as binding (although an opinion and not a decision) the answers of the Court to the questions incorporated in the Special Reference.

Fourthly, the Supreme Court’s opinion in the Special Reference not only strongly reinforced the concept of “primacy” of the Chief Justice of India’s opinion but also increased the number of judges the Chief Justice of India must consult before providing his opinion and laid down a detailed set of guidelines on the procedure to be followed in arriving at the Chief Justice of India’s opinion to which “primacy” was attached. The procedure in effect transferred the “primacy” from the Chief Justice of India to the group of Judges to be consulted. Fifthly, the collegium is now to consist of the Chief Justice of India and four (instead of two)senior-most judges of the court in the appointment of a high court judge, the Supreme Court judge acquainted with that particular high court should also be consulted raising the number to six. The increased size of the group that has to be a part of the consultation process with several interests being involved has made the consultation process cumbersome and delays in filling up of vacancies is bound to arise. The Presidential Reference also provides that every communication with the consultee has to be in writing and the views should be communicated to the Government. There is no indication as to what happens if there is no consensus among the consultees or if the majority dis-agrees with the Chief Justice of India. S.P. Gupta has laid down that the entire correspondence and communication between various authorities are open to public scrutiny (since the entire record was summoned, perused and made public in that case).

At the end it is stated that the point of conflict as to the process of appointment of Judges is the question of primacy of the opinion between the executive and judiciary during the process of consultation. It is well known that the constituent makers excluded the word “concurrence” and instead used “consultation”. Their aim was clearly to maintain the balance between the two wings and it was intended that both the wings need to play a co-operative role in the selection and appointment of judges. The present controversy as to the process of appointment of judges in India is the outcome of wrong interpretations made in Judges Case-I, II and III. The interpretations as to Article 124 and 217 went beyond what the constitution has actually provided, it infact amounted to re-writing of those provisions. The pretext for such an interpretation given by the judiciary is that any interpretation ensures or supplement to the basic feature of judicial independence is justified. But in my opinion Independence of judiciary must

be ensured within the four corners of the constitution and cannot go beyond the constitution. Further, the concept of ‘independence of judiciary’ must not be applicable to the matters of the appointment of judges, it is applicable only when judges are exercising there judicial function, i.e. after their appointments. It is pertinent to mention herein that the concept of ‘independence of judiciary’ is borrowed from the U.S Constitution, but during the process of appointment of judges in U.S it is seen that judiciary is completely excluded from the process of appointment and the concept of independence of judiciary has never been associated with the process of appointment of judges. The Second and Third Judges’ cases are a naked usurpation of the legislative function under the thin guise of interpretation. Such an interpretation endangers public confidence in the political impartiality of the judiciary which is essential to the continuance of the rule of law. The delicate balance of ‘judicial independence’ and ‘judicial accountability’ as formulated by the constituent makers under Article 124 and 217 of the Indian Constitution has been disturbed by the judicial interpretation and subject to judicial review. It is highly unfortunate that, the Supreme Court instead of bringing more transparency and clarity in the process of appointment of judges by being within the constitutional framework has surpassed the written text of the constitution. The Constituent assembly clearly rejected the term ‘concurrence’ and instead used ‘consultation’ thereby giving primacy neither to the executive nor the judiciary and intended for consensual decision amongst the executive and the judiciary for the appointment of judges. The judges hopelessly misconceived the very nature of judicial function. It is also unfortunate that such a violation is still continuing and is been facilitated by a fractured polity, a divided bar, and weak legal academia. Concluding, a National Judicial Commission should be set up, by constitutional amendment, to wipe out these rulings. The Court’s basic approach must be corrected. The warning ‘be you ever so high, the law is above you’ applies to judges as well as to politicians in power. As Aristotle said, for a judge to seek to be wiser than the law is to the very thing which is, by wise laws, forbidden.

.

BIBLIOGRAPHY BOOKS • H.M.Seervai, “Constitutional Law of India”, Fourth ed. vol.iii, chapter xxv, p.2613, Universal Law Publishing Co.Pvt.Ltd.
• •

A.G.Noorani, “Constitutional Questions and Citizen’s Rights”, 2006, Oxford Publication. Benzamin.N.Cardozo, “The Nature of Judicial Process”, Yale University Press., 1921, pp129 and 135.

Dr. Ranbir Singh & Dr. A Laxshminath, “Constitutional Law”, LexisNexis Butterworths Student Series.

“The History, Philosophy and Structure of the American Constitution”, second edition, LexisNexis Publications.

Arvind .P.Dattar, “Commentary on the Constitution of India, 2nd Edition, 2007, vol-I, Wadhwa and Nagpur Publication.

• • • •

M.V.Pylee, “Constitutions of the World, 3rd Edition, vol-I, Universal Law Publications. V. Bhagwan, ‘World Constitution’ 6th revised edition, Sterling Publishers Private Ltd. B.Shiva Rao, “The Framing of the Indian Constitution”, edited by Dr.Subhash.C.Kashyap. Norman Redlich,John Atlanasio, and Joel.K.Goldstein, “Constitutional Law”, Second Edition,LexisNexis Publication.

Craig R.Ducet, Constitutional Interpretation, Eight Edition, Thomson and West Publications.

ARTICLES

Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10. Judicial Oversight or Overreach: The Role of the Judiciary in Modern India. The Process of Appointment of Appointment of Judges in some foreign Countries: The United States by Mr. Cheung Wai lam. Federal Judicial Appointments- Gavel to Gavel. The Appointing Power of the Executive by Alexander Hamilton Federalist No. 76. The Appointing Power Continued and Other Powers of the Executive Considered Federalist No. 77. The Judiciary Department by Alexander Hamilton Federalist No. 78. LAW COMMISSION AND COMMITTEE REPORTS
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• • •

14th Report of the Law Commission of India,1958 79th Report of the Law Commission of India,1979 80th Report of the Law Commission of India,1977

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121st Report of the Law Commission of India,1987 214th Report of the Law Commission of India,2008

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