Abstract

Justice can become fearless and free only if institutional immunity and autonomy
are guaranteed.
The importance of judiciary in a democratic setup is unparalleled. The judiciary plays
an important role of interpreting and applying the law and adjudicating upon
controversies. It is the function of the courts to maintain rule of law in the country.
Judiciary is a watching tower above all the other limbs of the state. In a country with a
written constitution, courts have to safeguard the supremacy of the Constitution by
interpreting and applying its provisions.
Having regard to the importance and significance attached to the function performed
by the judiciary, the Constitution has consciously provided for separation of judiciary
from the executive. The separation of powers between these two organs of the
government has to be observed with respect to judicial appointments, transfers, and
retirement. The separation between the two organs of the government is insisted so
that independence of the judiciary can be maintained.
The appointment of judges to the higher judiciary in our country, that is, the Supreme
Court and the High Courts of the states has become a contentious issue, as there is a
constant tug of war between the executive and the judiciary. The issue attracts
attention as the service rendered by Judges demands the highest qualities of learning,
training and character. Judges are expected to present a continuous aspect of dignity
and conduct.
Much of the conflict has stemmed from the need to preserve judicial independence.
The term has meant different things to different people over time to several
members of the Constituent Assembly, it was a principle to allow judges to adjudicate
free from extraneous considerations, to a majority of judges of the Supreme Court
over time, a requirement of the rule of law enshrined in the basic structure of the
Constitution and to several popularly elected governments, a principle which had to
be carefully bypassed, while appointing sympathetic judges to the higher judiciary.
Today, these differences have been put in sharp relief in the context of the operation
of the Supreme Court collegium as the focal body for judicial appointments, with
judicial independence being used both by judges to justify its perpetuation as well as
by the political classes and sections of the civil society activists to explain its

purported failures. This article will shed light on the process of judicial appointments
in India and the various momentous changes the appointment procedure has
undergone since independence, while discussing the implications of the passage of the
99th Constitutional Amendment Act, 2014 and the National Judicial Appointments
Commission Act, 2014.
This paper aims to focus on the constitutional framework for the appointment of
judges in high court and Supreme Court. As it is known that the constitutional model
for appointment consists of a consultative process between the Executive and
Judiciary and after enforcement of the Constitution this practice has been followed
with some controversial episodes for more than four decades. But the scenario has
been changed in 1993 when the Supreme Court in Second Judges Case done away
with the existing consultative process and evolved a new system for appointment of
judges for higher Judiciary, namely "Collegium" system. In this system a panel of
Chief Justice of India along with two senior most Judges of the Supreme Court (in
Third Judges Case this number was increased from two to four senior most judges)
recommends the appointment of a judge. But the recent episodes revealed the
incompetency and irregularity of the collegium system. This paper will discuss the
constitutionality of collegium system by scrutinizing all three Judges Cases and
recent developments, which question the trustworthiness of present appointment
model.
Keywords:- Independence Judiciary, Second Judges Case, Executive, Second Judges
Case 99th Amendment. NJAC

Introduction
The appointment of judges to the Supreme Court of India and the High Courts has
over the years been a subject of intense conflict between the judiciary and the
executive. Much of the conflict has stemmed from the need to preserve judicial
independence, a term often used but little explicated in Indias constitutional
literature. Judicial independence has meant different things to different people over
time to several members of the Constituent Assembly, it was a principle to allow
judges to adjudicate free from extraneous considerations, to a majority of judges of
the Supreme Court over time, a requirement of the rule of law enshrined in the basic
structure of the Constitution and to several popularly elected governments, a principle
which had to be carefully bypassed, while appointing sympathetic judges to the higher
judiciary. Today, these differences have been put in sharp relief in the context of the
continued operation of the Supreme Court collegium as the focal body for judicial
appointments, with judicial independence being used both by judges to justify its
perpetuation as well as by the political classes and sections of the civil society
activists to explain its purported failures.
Neither does this article analyse each of the senses in which judges, politicians and
academics have used the term in the last sixty years nor does it delve into a detailed
legal analysis of the seminal cases relating to judicial appointments decided by the
Supreme Court. Instead, it is concerned with a conceptual enquiry into judicial
independence with a view to outlining its precise relevance to the process of judicial
appointments in India. To this end, this article is divided into three Parts: Part A
provides a brief narrative of judicial appointments in India to set the context for the
article; Part B proposes a conceptual understanding of judicial independence, both on
the basis of a theoretical enquiry as well as by analysing its role in a formal separation
of powers framework analogous to India; Part C uses this understanding to assess
whether the ways in which judicial independence has been used in India, specifically
in justifying the current collegium method of appointment are conceptually wellfounded. Through this three-part analysis, it is hoped that a certain degree of
conceptual clarity regarding the role of judicial independence in the context of judicial

appointments will emerge, thereby providing both an argument as well as a theoretical

foundation for reform of the current appointments process. The narrative of judicial
appointments in India is rich and varied in characters and issues. Judges of diverse
ideologies and upbringing, Law Ministers with varying degrees of inclination to
interfere in the judicial process, Prime Ministers both non-interventionist as well as
authoritative, controversies that have riven the nation, judicial decisions that have
united it and continuing attempts at finding the ideal and hitherto elusive system of
appointment which will secure the independence and high quality of the judiciary are
some of its constituent features. To provide a coherent account of this narrative,
discern the key issues that have arisen and set the context for the article, this part will
briefly discuss three crucial phases relating to judicial appointments: Preconstitutional discussions (1946-1950), the phase of executive-led appointments
(1950-1993) and the current collegium mode of appointment of judges (1993present).

Historical Backdrop
Government of India Act
If we trace the history of appointment process before independence we can see that
the procedure for appointment of judges under the Government of India Act, 1919 and
Government of India Act, 1935 was in the absolute discretion of the Crown and their
tenure was governed by pleasure doctrine.1

Constituent Assembly
The Constituent Assembly held vigorous debates as regards the issue of judicial
appointments. Judicial independence was seen as a necessary requirement for the
judiciary to adjudicate impartially, insulated from political interferences.
According to Dr. Ambedkar, there were two alternative modes of appointing Judges
which were before the Drafting Committee. The first was the appointment of Judges
in the United Kingdom where the executive had an absolute power to appoint all the
Judges of the High Court of Justice, and Lords of Appeal in Ordinary in the House of
Lords. In the United States, the President had power to appoint Federal Judges with
the advice and consent of the Senate. This method curtailed the absolute power of the
President as the Chief Executive to appoint Judges, by giving the Senate a veto.
Between the absolute power of the executive in the United Kingdom, and the
Presidents power in the United States, hedged in by the veto of a legislative body, the
Drafting Committee steered a middle course.
Further, Dr. Ambedkar stated that the proposed appointment does not make the
President the supreme and the absolute authority in the matter of making
appointments. It does not also import the influence of the Legislature.4

1 Section 101 and 102 of Government of India Act, 1919 and Section 200 and 220 of the Government
of India Act, 1935 provided for the procedure of appointment of judges of higher judiciary before the
present Constitutional provisions in this regard. The doctrine of pleasure owes its origin to common
law. The rule in England was that a civil servant can hold his office during the pleasure of the crown
and the service will be terminated any time the crown wishes the same. Though this Common Law
doctrine is adopted by our Constitution in article 310 but with some restrictions and it is not applicable
to the tenure of high court and Supreme Court judges.

In this way mode of appointment proposed by the members of the Constituent

Assembly for appointment of judges were not accepted intact and a unique form of
appointment system was adopted by the Constituent Assembly.

Appointment Under Indian Constitution

Article 124(2) and 217(1) provide procedure for appointment of judges in higher
judiciary. Article 124(2) reads inter alia thus:
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 consulted4. (emphasis added)
Article 217(1) provides 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 years5. (emphasis added)
Article 124(2) talks about two type of consultation. One being discretionary on the
part of the President and the other being mandatory under the proviso62. Under Article
217(1) the process of consultation by the President is mandatory and this clause does
not speak of any discretionary consultation7.