NATIONAL LAW UNIVERSITY ODISHA

LEGAL HISTORY PROJECT

Submitted to:

Mr. Kapil Sharma

Submitted by:

Shaivi Shah (2018/BBA.LLB/051)

Anshika Agarwal (2018/BBA.LLB/009)

TOPIC – CONFLICT BETWEEN EXECUTIVE AND

JUDICIARY IN PRE AND POST INDEPENDENCE

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 ACKNOWLEDGEMENT

This project has been completed due to the support provided to by our university on all fronts.
We would first like to show gratitude to our subject teachers, Mr. Kapil Sharma and Ms. Divya
Singh Rathore, for giving us guidelines to base our project on throughout. We would like to
thank the university’s administration for providing us with valuable resources such as a great
library and 24 hour internet services. We would also like to acknowledge the help and constant
support provided by our seniors who guided us on the right track. Lastly, we would like to
thank the almighty and our parents without whose blessings this project would have been
incomplete.

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 TABLE OF CONTENTS

TOPIC – CONFLICT BETWEEN EXECUTIVE AND JUDICIARY IN PRE AND POST

INDEPENDENCE.......................................................................................................................1
ACKNOWLEDGEMENT..................................................................................................................2
TABLE OF CONTENTS...........................................................................................................3
STATEMENT OF PURPOSE............................................................................................................4
I. Independence of Judiciary..............................................................................................5
 CONCEPT OF SEPARATION OF POWERS:........................................................5
 IMPORTANCE OF INDEPENDENCE OF JUDICIARY.......................................6
 PROVISIONS TO SAFEGUARD INDEPENDENCE OF JUDICIARY...............6
 S.P. GUPTA VS. UNION OF INDIA : A CASE STUDY........................................7
II. Conflicts between Executive and Judiciary in Pre Independent India.......................9
 LANDMARK CASES SHOWING CONFLICT BETWEEN JUDICIARY AND
EXECUTIVE IN THE PRE-INDEPENDENCE ERA...................................................11
III. CONFLICT BETWEEN EXECUTIVE AND JUDICIARY IN POST
INDEPENDENT INDIA.......................................................................................................14
 14th Law Commission Report....................................................................................14
 National Judicial Appointment Commission Bill, 2014..........................................15
 THE THREE JUDGES CASE AND THE EVOLUTION OF THE
COLLEGIUM SYSTEM..................................................................................................15
 COLLEGIUM SYSTEM...........................................................................................17
CONCLUSION..............................................................................................................................19
BIBLIOGRAPHY.....................................................................................................................20

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 CONFLICT BETWEEN EXECUTIVE AND
JUDICIARY IN PRE AND POST
INDEPENDENT INDIA

STATEMENT OF PURPOSE

The protracted nature of the critical conflict that has existed between the judiciary and the
executive draws out attention to this topic. The concept of Independence of Judiciary of

4
judiciary has also garnered immense importance, as it is believed that an independent judicial
apparatus is the pre-requisite for a mature and well functioning democracy. Due to this
complex nature of the conflict between the organs of the state, separation of powers becomes
all the more important. It helps in defining the jurisdiction for the functioning of each organ
and tries to prevent encroaching of functions and duties. These complications exist even in the
most developed and mature administrative systems even as the newborn democracies grapple
to ensure a well functioning system.

In this project, firstly we have dealt with the need for an independent judiciary and executive.
Then we go on to discuss the need for a proper and justified separation of powers between
these two organs of the government. In that we have dealt with the various cases that have been
the hotspots of the conflict between the judiciary and the executive. Secondly, we have worked
on the historical aspect of this conflict and have contrasted it with the contemporary conflict.
Thirdly, we have tried to present our perspective of the importance of the three Judges, 99 th
amendment of the constitution relating to the National Judicial Appointment Commission Bill
and also the Collegium system. In the penultimate part of the project, we have tried to look at
the ways that this conflict has been tackled by the judiciary and the Executive and the
compromise that have been made between the two in order to sustain the balance of power in
the system.

5
 I. INDEPENDENCE OF JUDICIARY

• CONCEPT OF SEPARATION OF POWERS:

The concept of separation of powers was propounded by the French philosopher

Baron De Montesquieu in his book ‘The Spirit of Laws’(1798) in the 18th. He
described the distribution of powers within the three organs of the government, the
executive, the legislative and the judiciary. This doctrine states that each and every
organ of the government should be separated from the other organs and one organ
should not intervene with the proceedings of the other organs 1. This concept works on
the principle of ‘checks and balances’. This system limits one branch from
overarching the powers of the other branches and therefore keeps a check on all three
organs.2 Wade and Philips describe ‘separation of powers’ (Constitutional Law, 1960)
as follows:

a) Same persons should not be part of more than one of the three organs of the
state.
b) One organ should not intrude and intervene with the working of the other
organs.
c) One organ should not perform the duties of the other organs.3

The doctrine of separation of powers ensures that all the organs function within their
sphere of law4. It checks tyrannical rule and absolute monarchy and safeguards liberty
of the individuals.5 This system also provides stability to the government and enables
harmonious exchange of powers within these organs6.

1
Preeti Sharma, ‘Judiciary in India, No longer Independent: A Critical Analysis’, International Journal of Law and
Legal Jurisprudence Studies: ISSN: 2348-8212 Volume 1 Issue 6 < http://ijlljs.in/wp-
content/uploads/2014/10/Preeti-Sharma_Essay.pdf> accessed 26 September 2018.
2
P. Parameshwar Rao, ‘Separation Of Powers In A Democracy: The Indian Experience’ (May 2005) 37 Peace
Research < https://www.jstor.org/stable/24469690?seq=2#metadata_info_tab_contents> accessed 26 September
2018.
3
Legal Studies CBSE Class 11th, (1st edn, The Secretary, Central Board of Secondary Education 2013).
4
Ibid.
5
Ibid.
6
Ibid.

6
 • IMPORTANCE OF INDEPENDENCE OF JUDICIARY

The independence of the Judiciary has been a topic of great debate and controversy in
our country since the pre independence era and has carried on and continued in the
current political scenario. Independence of judiciary is the most important element of
any democracy. One might say that it is the sine qua non of a democratic country7. A
country cannot consider itself to be a true democracy simply by enacting laws through
bodies consisting of democratically elected representatives of the people. Fair
interpretation of the said laws is what ensures justice. 8 Thus having a provision in
place to do so is of prime importance. With different avenues of the law constantly
being discovered and their increasingly complex laws being drafted, an independent
judiciary is an extremely necessary organ of power in our country. 9 Only an impartial
and independent judiciary can stand as a pillar of strength for the protection of the
rights of the citizens of India and dispense lawful and just verdicts throughout its
courts without reservation or bias.10 Essentially this means that the judiciary will not
be influenced by either the executive or the judiciary thereby ensuring against both,
fear and favour, of the other two organs.11

• PROVISIONS TO SAFEGUARD INDEPENDENCE OF JUDICIARY

Article 50 of the constitution which is a Directive Principle of the State Policy provides
for the separation of judciary from the executive and ensures its independence. It clearly
states that “The state shall take steps to separate the judiciary from the executive in
public services of the state.” The constitution framers wanted to ensure the rule of law
and bring about improvements as expeditiously as possible. The intenton behind the
same was to ensure that the judiciary doesn’t decide any case under influence of the
executive.12

7
Vishnu Prasad, ‘Independence of Judiciary in India’ (1964) 25 The Indian Journal of Political Science
<www.jstor.org/stable/41854044> accessed 26 September 2018.
8
Ibid.
9
Ibid.
10
Santosh Kumar Pandey, ’ Independence of judiciary in India’ (2018) 4 International Journal of Law
<www.lawjournals.org/download/286/4-2-62-783.pdf >accessed 26 September 2018.
11
YourArticleLibrary, ‘Independence of Judiciary in India’ <http://www.yourarticlelibrary.com/india-
2/independence-of-judiciary-in-india/49299> accessed 26 September 2018.
12
Nidhi Singh & Anurag Vijay, ‘Separation of Powers: Constitutional Plan and Practice’ (2013) 3 (11)
International Journal of Scientific and Research Publications < http://www.ijsrp.org/research-paper-1113/ijsrp-
p2337.pdf> accessed 26 September 2018.

7
 Article 121 of the Indian Constitution prohibits the members of both the houses from
discussing the conduct of the judges in the house except for the motion of the removal
of a judge.

Similarly, Article 211 of the Indian Constitution restricts the conduct of the judges in a
legislature in course of discharge of his duties. This article therefore provides immunity
to the judges in exercise of their duties. A fearless executive and judiciary is considered
to be the basic structure of the constitution and the state strives to achieve the same.

• S.P. GUPTA VS. UNION OF INDIA : A CASE STUDY13

The above mentioned case involved a number of petitions being filed and various
constitutionally important questions being asked regarding the appointment and transfer
14
of judges and the independence of the judiciary. The validity of the orders of the
Central Government concerning non appointment of two judges was one of the
prominent issues raised.15 For the resolution of this issue, the petitioners sought the
disclosure of the dialogue between the law minister, the Chief Justice of Delhi and the
Chief Justice of India.16The state however, maintained that the correspondence was
private and could not be disclosed under article 74(2) of the Indian constitution, which
provides that the suggestions given by the Council of Ministers to the President is
confidential and is not required to be looked into by any court and section 123 of the
The Indian Evidence Act, which says that evidence obtained from official records of the
affairs of the state which are unpublished can only be derived by the permission of the
17
head of the concerned department. Section 162 of the Evidence Act provides that a
witness, if required to produce a document before the judge and the court, should do as
he/she is directed and any objection to this is at the discretion of the court.18

Justice Bhagwati, the judge deciding the case, ruled against the government. The
concept of an open government stems directly from the right to know which is directly
drawn from the freedom of speech and expression which is guaranteed in the

13
S.P. Gupta V. Union of India AIR [1982] SC 149.
14
Global Freedom of Expression Columbia University, ‘S.P. Gupta v. Union of India’
https://globalfreedomofexpression.columbia.edu/cases/s-p-gupta-v-union-of-india/ accessed 26 September 2018
15
Ibid.
16
Ibid.
17
Ibid.
18
Ibid.

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 fundamental rights (Article 19(1)).19Thus disclosing information regarding the
functioning of the government should be the rule and secrecy should be the exception. 20
Regarding the dispute involving Article 74(2) of the constitution, the court agreed to
maintain the confidentiality of the advice tendered by the Council of Minister to the
President but maintained that the conversation between the law minister, the Chief
Justice of Delhi and the Chief Justice of India would not be exempted from being
subject to scrutiny simply because it was referred to in the advice.21

19
Law Teacher, ‘Judiciary of Hope and Aspirations’ https://www.lawteacher.net/free-law-essays/judicial-
law/judiciary-of-hope-and-aspirations.php accessed 26 September 2018
20
Right2Info, ‘S.P. Gupta v. President of India’ https://www.right2info.org/cases/r2i-s.p.-gupta-v.-president-of-
india accessed 26 September 2018.
21
Live Law, ‘Judges Appointment: Executive Primacy to Judicial Primacy and Road Ahead’
<https://www.livelaw.in/judges-appointment-executive-primacy-to-judicial-primacy-and-road-ahead/ > accessed
on 26 September 2018.

9
II. CONFLICTS BETWEEN EXECUTIVE AND JUDICIARY IN PRE
INDEPENDENT INDIA

The colonial rule by the British in India is an extremely distinctive period in world history.
What started out as a commercial endeavour known as the East India Company to boost the
economy of the British crown, ended up being a 200 year long oppressive rule over India. The
Charter of 1600, by which the EIC was set up, provided legislative powers to the Company to
maintain law and order in their settlements in India. 22 At the onset of the British rule, in the
Surat, Bombay, Madras and Calcutta settlements, the judicial duties were performed by the
governor and his council in the respective presidencies. 23In order to deal with petty offenses
which were civil and criminal in nature, subordinate courts were established in the presidency
towns. 24Initially, the judicial powers were vested solely in the hands of the executive however,
soon a specialist in the law was appointed to the courts and thus began the conflicts between
the executive and the judiciary.25

The first such incident was observed at the early settlement of Bombay. Under the Charter of
1684, an Admirality Court was set up in Bombay.26 A person ‘learned in civil law’ was sent by
the company to India to act as the Judge-Advocate in the courts. This person was Dr. St. John.27
He was given the authority to act as the Chief Justice of the court of judicature in Bombay. He
28
further took on the responsibility of administering civil and criminal justice as well. He was
the propounder and a great believer in the fact that the judiciary should be independent and
impartial. This was perceived by the governor, John Child, to be an act of defiance of his
authority, thus giving rise to disputes and a rocky relationship between the chief justice and the
governor.29 In 1685, John Child was allowed to demote the sitting Chief Justice and take away
his powers. Vaux, a member of the Bombay Council, was appointed as the Chief Justice in his

22
 J.K. Mittal, Indian Legal and  Constitutional History, Allahabad Law Agency, 2003, p.3.
23
Legal Heritage, ‘Brief Narration of Separation of Power in Colonial India and the conflict between Executive
and Judiciary – Dr. Richa Sharma’< https://legalheritage.wordpress.com/2014/03/10/brief-narration-of-separation-
of-power-in-colonial-india-and-the-conflict-between-executive-and-judiciary-dr-richa-sharma/> accessed 27
September 2018.
24
Ibid.
25
Ibid.
26
Ibid at p.19.
27
M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.25.
28
Dr. N.V. Paranjape, Indian Legal and Constitutional History,Central Law Agency, Allahbad, 2006, p. 20.
29
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.

10
stead. This furthered and the already existing rocky relations between the Governor and the
Chief Justice.30

The condition at the Calcutta presidency was no better than that of Bombay. The Collector had
autonomy and there was no concept of separation of the judiciary and executive 31. The power
to adjudicate on civil, criminal as well as revenue matters was vested in him. He was also
authorized to handle petty civil and criminal matters concerning Europeans living in India. The
appellate powers lay with the Governor and Council. They had the authority to judicate on
extremely serious criminal offences. Thus essentially all judicial powers were in the hands of
the executive, namely the collector and the Governor and Council. 32 The modes of punishment
were extremely severe and included whipping, fines, working in chains on the roads,
imprisonment and banishment from the settlement to name a few.33

An account taken during this period of the working of the Mayor’s court at Madras showed that
the equation between the Mayor’s Court and the Governor in council was less than pleasant 34.
There were constant disputes between the two. The two claimed that they were independent of
each other and kept trying to establish their superiority. Whenever the Governor-in council
made any decisions, the Mayor’s court didn’t abide by them and vice-versa. 35

The constant conflicts and disputes between the executive and the judiciary gave rise to a lot of
discrepancies of the working of the government and hampered all forms of smooth and
effective administration. Thus the British King was thus requested by the company to issue a
fresh charter the resolve the existing problem. However, the new charter issued, the charter of
1753, provided for the judiciary as being treated as simply a branch of the executive. Junior
servants from the company were selected to be the presiding officers of the Mayor’s Courts
and thus the judges were once again biased, inexperienced and failed miserably at meting
justice with integrity and fairness.36

During Lord Warren Hasting’s governorship, the second attempt at separating the executive
from the judiciary was made. While the Adalat system was being reorganised, he tried to
30
Ibid.
31
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.
32
Ibid.
33
M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.32.
34
Legal Heritage, ‘Brief Narration of Separation of Power in Colonial India and the conflict between Executive
and Judiciary – Dr. Richa Sharma’ < https://legalheritage.wordpress.com/2014/03/10/brief-narration-of-
separation-of-power-in-colonial-india-and-the-conflict-between-executive-and-judiciary-dr-richa-sharma/>
accessed 27 September 2018.
35
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.
36
Ibid at p.67.

11
separate revenue administration from the judiciary. The revenue councils continued at the six
provincial councils- Calcutta, Murshidabad, Burdwan, Dacca, Dinajpur and Patna. They
continued to collect revenue as before however their judicial power to hold civil courts was
taken away from them.37

The separation of powers was first officially recognised by the company during the framing of
the first civil code by Warren Hasting and Sir Elijah Impey, the first Chief Justice of the
Supreme Court at Calcutta. The result was the independence of the judiciary at the Adalat
level. Specific provisions which provided that even Zamindars, Talukdars and farmers
involved in the process of collecting revenue were under the jurisdiction of the civil courts.38

The strained relationship and the struggle for power between the executive and judiciary
however, seems to have continued either in the form of conflicts between supreme court and
the supreme councils or between the judges of the Sadar Adalat and governor general’s
council. The introduction of the rule of law along with the concept of an independent judiciary
was often tried by many governor generals of India during their tenure however none of their
efforts can be deemed to have been successful. The efforts made by them were rather half
hearted due to the fact that their sole aim was to collect wealth in India and implementing such
ideal policies would severely hamper their attempts to do so. However, we do see that these
reforms set the tone for dialogue to be carried out regarding the necessity of an independent
judiciary and implementation of rule of law.

• LANDMARK CASES SHOWING CONFLICT BETWEEN JUDICIARY AND EXECUTIVE IN

THE PRE-INDEPENDENCE ERA

1. RAMA KAMTI CASE

The Rama Kamti case was a landmark case in showing the problems which arose
due to the lack of an independent judiciary for a variety of reasons. It highlighted
the extent of corruption in the existing means of dispensing justice and was an eye
opener for the people of India.
Rama Kamti was a rich and influential merchant living in Bombay. He also
happened to be a supporter of the company. Angria was a pirate chief who was
harrowing the company and causing it great losses. Kamti was arrested on the
accusation that he was in contact with Angria. The trial was held before Governor

37
Ibid at p.82.
38
Ibid at p. 86.

12
 Boone and his council.39 There was no concrete evidence to base Kamti’s conviction
upon, simply the account of a witness was taken into consideration. The witness
claimed to have been informed by a dancing girl of the fact that Angria, the pirate
chief, had received a letter from Kamti. A servant of Kamti was held and tortured to
coerce admissible evidence out of him. His thumb was cut off and finally he gave a
statement against Rama Kamti. Parker, the judge of the court of judicature, objected
to the use of such torturous means to extract evidence and was dismissed by the
executive shortly afterward. 40Some of the letters that were supposedly written by
Kamti to Angria appeared to have been manipulated by forgery. However, Kamti
was found to be guilty and his punishment was to be imprisoned for an indefinite
period of time along with having all his property and wealth seized. Rama Kamti
passed away while he was in prison 41. After his death it was found out that this was
all an elaborate ploy constructed by the governor to seize and take for himself the
property belonging to Rama Kamti and also to fulfil the governor’s personal
antagonism against him.42
Thus we see the extent of the influence of the executive. The governor got away
with arresting an innocent man on the basis of only hearsay evidence, using
torturous methods to extract evidence and manipulating planting evidence through
forgery.

2. COSSIJURAH CASE
The disturbed relationship between the Supreme Court and the Supreme Council
reached its absolute peak during the Cossijurah Case. The Supreme Court ordered
the sheriff to carry out its orders while on the other end, the Supreme Council
ordered the sheriff to carry its own orders which were in contradiction to those of
the Supreme Court.43 The Supreme court also considered within its jurisdiction the

39
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006,
p.61.
40
Legal Heritage, ‘Brief Narration of Separation of Power in Colonial India and the conflict between Executive
and Judiciary – Dr. Richa Sharma’.
41
Reality Views, ‘Indian Legal History – Administration Of Bombay 1684 To 1726 - Part 5’
<https://www.realityviews.in/2010/03/indian-legal-history-administration-of.html > accessed 28 September 2018.
42
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006,
p.61.
43
Slide Share, ‘ Cossijurah Case’ < https://www.slideshare.net/reshmasuresh1884/cossijurah-case > accessed 28
September 2018.

13
 entire population of native Indians which was opposed to by the council. Thus these
differences made the case and its final conclusion one of extreme significance.44
Cossinaut Babu had loaned a large sum of money to Raja Sundernarain, zamindar
of Cossijurah (Kasijora). Raja Sundernarain was unable to pay and thus was under
heavy debt Cossinaut Babu. Thus a civil case against the Raja of Cossijurah was
filed in the Supreme Court at Calcutta. A writ of Capias for the Raja’s arrest was
issued by the Supreme Court. 45The raja, afraid of the consequences did not abide by
the orders of the court and did not respond to the writ. The council then issued a
notification stating that landowners were not required to pay attention to the
procedures of the supreme court unless they were employees of the company or
they had accepted the jurisdiction of the SC by their own accord. 46The Raja was
specially informed and thus when the sheriff of the supreme court came to arrest the
Raja, the people of Cossijurah drove him away.47 The SC then issued another writ of
sequestration to seize the Raja’s property and compel him to appear before the
court. In the meantime, the council asked the commander of the armed forces to
deploy a force and arrest the sheriff of the Supreme Court. 48
The Conflict thus continued with a lot of back and forth which eventually
completely ruined the equation between the executive and the judiciary. As a result,
a parliamentary committee was set up and asked to prepare a report. The report
detailed the ongoing conflict and its conclusion lay in the passing of the Act of
Settlement in 1781.49

44
Legal Bytes, ‘ Working of the Court ‘ < https://www.slideshare.net/reshmasuresh1884/cossijurah-case >
accessed 28 September 2018.
45
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.
46
Ibid.
47
Ibid.
48
Ibid.
49
Go For the Law, ‘ History of Courts, Legislatures and Legal Profession in India’
<http://www.goforthelaw.com/index.php/qps/view_answer/2091.html> accessed 28 September 2018.

14
III. CONFLICT BETWEEN EXECUTIVE AND JUDICIARY IN
POST INDEPENDENT INDIA

The tensions between the executive and the judiciary continue to exist even after 70 years of
independence. The executive has time and again tried to clip off the wings of judiciary and
grappled the independence of judiciary. The most disputed being the apointment and the
removal of judges. The trust deficit in the three organs can put the functioning of the state in a
stark danger. Many recent events like the appointment of justice KM Joseph, the judges press
conference, impeachment proceedings against the Chief Justice Deepak Mishra have
highlighted this tussle.

• 14TH LAW COMMISSION REPORT

The concept of independence of Judiciary over the appoinment of judges was first
discussed in the 14th law commission report under M.C. Setalvad in 1958. This report
was on the reform of judicial administration. It suggested that the pensions of the judges
and their leave conditions be improvised. Also, to ensure that the judiciary is
independent, it recommended that the judges shouldn’t be allowed to hold any office
under the state or the union after retirement. It also prohibited the Supreme Court
Judges from starting chamber practices after their retirement. 50 The commission noted
the public discontent in the appointment of judges then. The appointment was made
according to the provisions of Article 217 of the Constitution. 51 It recommended that the
procedure should be suitably amended and the recoomendation for the appointmement
should me made by the Chief Justice of a State. 52 The commission recommends that the
best talents among the judges of the High Court should be invited for the judgeship of
the Supreme Court in order to ensure the efficiency, sanctity and the impartiality of the
Judiciary.53

50
14th Law Commission Report, ‘The Report of Law Commission on the Reform of Judicial Administration’
[1958].
51
Ibid.
52
Ibid.
53
Ibid.

15
 • NATIONAL JUDICIAL APPOINTMENT COMMISSION BILL, 2014

The National Judicial Appointment Commission Bill was passed by the parliament in
2014 by the 99th amendment of the constitution. Also, the NJAC Act, 2014 was ratified.
It was implemented in 2015. It recommended that the collegiums be scrapped and the
executive to be given a role in appointment procedure. It consisted of six people, the
Chief Justice of India, two senior most judges of the supreme court and two eminent
persons who were to be nominated on the recommendation of a committee which
consisted of the chief justice, the Prime minister and the Leader of the Opposition in
Lok Sabha54. It therefore, gave primacy to the exceutive organ of the government in the
appointment procedure and had the potential to harm the independence of the judiciary.
The Supreme Court struck down the NJAC act by a majority of 4:1 with justice
Chelameshwar giving th dissenting opinion 55. The bench found the said act in violaton
of the Basic structure of the constitution. It observed that article 124A or the 99 th
amendment should be declared unconstituional as it fails to give adequate
representation to the judicial component and is therefore insuficient in upholding the
primacy and independency of the judiciary in the matter of selection and appointment
of judges. 56The said provision was also found to be impigning upon the principle of
‘separation of powers’ and ‘independence of judiciary’ and hence, ultra vires with the
basic structure of the constitution.57

• THE THREE JUDGES CASE AND THE EVOLUTION OF THE COLLEGIUM SYSTEM

3. FIRST JUDGES CASE:

S P Gupta Vs. Union of India, 198258- It was in this case that the Supreme Court of
India held that the idea of supremacy of the Chief Justice of India was nowhere to
be found in the Constitution of India. This case, instead gave the upper hand to the
Executive and held that the recommendations of the CJI to the president can be
refused. Thus, the final authority in the appointment of the judges of High courts
and Supreme Court rested with the Central Government and this practice was in
54
Gautam Bhatia, ‘Debating the NJAC: Article 124C, Excessive Delegation and the Separation of Powers: A
Response – II (Guest Post)’ (Legally India, 25 July 2015) < https://www.legallyindia.com/views/entry/debating-
the-njac-article-124c-excessive-delegation-and-the-separation-of-powers-a-response-ii-guest-post> accessed 27
september 2018.
55
Live Law News Network, ‘#NJAC unconstitutional’ (Live law, 16 October 2015) <
https://www.livelaw.in/njac-unconstitutional-constitution-bench-41-2/> accessed 27 September 2018.
56
Supreme Court Advocates on Record V. Union of India [2015] SCC 5.
57
Ibid.
58
First judges case (n 13).

16
 accordance with other mature democracies59. It is not optional, said the court, for
the Government to consult the CJI as the Government must consult but thereafter,
the power to make appointments would lie with the Central Government. In this
manner, this case laid down the Primacy of the Executive in appointing and
transferring of judges. This tilted scale of Balance of Powers lasted for a good 12
years before it was ultimately modified in the Second Judges case.

4. SECOND JUDGES CASE:

Supreme Court Advocates on Record Association Vs. Union of India, 199360- A
little over a decade after the First Judges Case, a nine-judge Constitution bench, by
a majority of 7:2, overruled the principle laid down in the first case. It was now
ruled that the CJI should ideally propose and appoint judges however, such
proposal and appointment must not be undertaken by the CJI alone but by a
collegium consisting of the CJI along with two other senior most judges of the
Supreme Court. The collegium was subsequently required to send its proposal to
the President for consent61. In case of a dispute between the CJI and the President
with respect to the appointment of judges, the opinion of the CJI would prevail 62.
This ultimately meant that the Second Judges Case upheld the primacy of the Chief
Justice of India instead of fulfilling its original purpose of restoring the balance of
powers between the Judiciary and the Executive. This process gave way to
increased arbitrariness and non-transparency in the system.63

5. THIRD JUDGES CASE:

In an interesting turn of events, once, the proposal given by the SC was not
accepted by the Executive. Even as the Executive questioned the recommendations
of the CJI in the matter of appointing 5 judges, the then President K R Narayan, in
1998, issued what is called a ‘Presidential Reference’ 64. The Executive, through the
office of the President, sought the advisory opinion of the Supreme Court on the
matter. A unanimous opinion of a nine-judge bench was delivered wherein the
collegium system was further evolved65. The collegium was now to comprise of the
59
Utkarsh Anand, ‘How judges appoint judges, the debate around it’ Indian Express (New Delhi, 15 November
2016) < https://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-
and-transferred-the-debate-around-it-4375719/> accessed 27 September 2018.
60
See n 7.
61
See n 10.
62
Ibid.
63
Ibid
64
Santosh Paul, ‘ Choosing Hammurabi- Debates on Judicial Appointments’ (2013 Edn, Lexis Nexis 2013).
65
Ibid.

17
 CJI and four of the senior most judges of the SC, as against the requirement of two,
previously. Furthermore, it was held that if two judges gave differing opinions, the
CJI was not to send the recommendation to the Executive for its assent. The court
also laid new and detailed guidelines for the appointment and transfer of judges by
the collegium.For the appointment of an advocate as a judge of the High Court, the
Chief Justice of the High Court, along with other senior judges, is required to send
their proposal to the collegium in the SC for their consent who thereupon, finally
send it to the President for assent.Where appointment of Supreme Court judges are
in question, The SC collegium shortlists persons of merit and sends their proposal
to the office of the President for approval. 66The Chief Justice of India,
conventionally is appointed only on the basis of seniority. 67

• COLLEGIUM SYSTEM

The collegium system is not officially part of the Indian constitution or an act of
the parliament but it is followed to make decisions for the appointment of the
judges68. In the current practice, the appointment is made by a collegium of Chief
Justice of India and the four Senior most judges of the Supreme Court 69. This
system was evolved by interpreting the three judges case. Currently the collegium
is headed by Chief Justice Deepak Mishra, and four other senior most Supreme
Court Judges. The collegium was established when in 1998, Supreme Court laid
down 9 guidelines for the Coram for the appointmennt of the judges under the
present Collegium by broadening the meaning of the term ‘consultation’ 70. It stated
that four senior most judges should be consulted for the appointment instead of
two. In case of appointment of a High Court judge, the High Court judges should
also be consulted. In case of adverse opinion by two judges,, the recommendation
for theappointment should not be sent to the government.71

The appointment of Chief Justice KM Joseph of Kerela High Court as a Supreme

Court Judge last year was a point where the tussle between the executive and the
66
Anuradha Mukherjee, ‘Should the Judges cases be revisisted?’ (Cyril Amarchand Mangaldas Blog, 27 Febrary
2018) < https://corporate.cyrilamarchandblogs.com/2018/02/judges-cases-revisited/> accessed 28 September
2018.
67
Ibid.
68
Editorial, ‘Collegium System for Appointment of Judges’ The People’s Chronicle (Imphal, 09 February 2017)
4.
69
Ibid.
70
Ibid.
71
Ibid.

18
 72
judiciary could be evidently seen. It left both the judiciary and the executive in
loggerheads. The government returned the Collegium’s recommendation to appoint
Justice KM Joseph as a Supreme Court Judge on the grounds that the said
appointment was not in par with the top parameters of the Supreme Court and also that
the Kerela High Court had adequate representation in the top Court. 73It was alleged
by the opposition that the government returned the recommendation of KM Joseph
because he had imposed the President’s Rule in Uttarakhand. 74 It was held that the
government wanted to appoint judges only of its choice and therefore, it imposed a
great threat to the democracy and the independence if judiciary. This shows how time
and again the appointment procedure has brought conflicts and tussles between these
organs in the post independent India.

72
BS Web Team, ‘SC Collegium again backs Justice Joseph's appointment as SC judge; updates’ (Business
Standard, 11 May 2018) < /www.business-standard.com/article/current-affairs/justice-joseph> accessed 28
September 2018.
73
Ibid.
74
Ibid.

19
 CONCLUSION

The Indian Judiciary has proved itself to be one of the most effective and powerful judiciaries
internationally. An instance to give merit to this claim is the Judgement of the 4th judges case
which gave the upper hand to the judiciary when it came to the appointment of judges. It is true
that the judiciary, being the sole interpreter of the constitution and the determinant of the basic
structure, has a lot of influence which slowly gives rise to the question of the growing power
of judicial review. However, this should not be an argument to make the judiciary bow down to
the whims and fancies of the executive and the parliament. 75All three organs of the country, the
executive, the judiciary and the legislature, should try and take the true spirit of the constitution
in their stride and realise that absolute concentration of power with any of them could poison
76
the very democratic foundation that this country is based upon. Peaceful coordination
between these three is the need of the hour if we want to live in an India that can truly consider
itself to be an ideal democracy. Thus if the three organs kept this goal in mind and decided to
give up their thirst for power and absolutism, we can move forward toward the greater good.
This greater good entails nothing but the all-round development of our nation with social,
economic and political justice rendered to all.77

75
Dr. Anurag Deep and Shambhavi Mishra, ‘Judicial Appointments in India and the NJAC Judgement : Formal
Victory or Real Defeat?’ (2018) 3 Jamia Law Journal
<http://docs.manupatra.in/newsline/articles/Upload/88BE1E36-4D87-4B24-9C29-D565D0D368A0.%20Judicial
%20Appointment%20in%20India%20_Civil.pdf> accessed 28 September 2018.
76
Ibid.
77
Ibid.

20
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21
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22
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23