WHAT STARTED IT ALL: WHO ROBS OFF OR PURLOIN WHOM ---

COLLEGIUM OR NJAC?
Professor Dr. K.L. Bhatia

Presently, Professor, National law University, Jodhpur

DAAD and Max-Planck Fellow and Alumni

B.A. (Hons.); LL.B. (ILS Pune University), LL.M., Ph.D. (Pune University)

(Former Head and Dean Faculty of Law; Founder Director, The Law School, University of Jammu; Director, Amity
Law School; Dean and Professor Emeritus, UPES; UNDP Professor Public Law)

and

Manu Bhatia Sharma

BSL LL.B. (ILS Pune University), LL.M. (GNDU Asr)

ICRC, Henry Dunant and Max-Planck Fellow

Research Scholar

Introduction:

National Judicial Appointment Commission (NJAC) is a welcome gesture to minimizing

political interference in the appointment of judges of higher judiciary and sustaining the
independence as well as integrity of the judicial system in India. Collegiums’ system was a sort
of purloining the Constitutional Institution. NJAC hopefully shall replace the collegiums
juristocracy. Independence of the judicial system is a cornerstone of the basic structure of the
Constitution of India, which enhances the faith of ‘we the people of India’ in the “least
dangerous branch of the government”. Independence of the judicial system imbues the prosperity
and sustenance of democracy in India. Independence of the judicial system flourishes if it is free
from fear or favour or internal and external influences or power and purse or pliability; it
embellishments rule of law which is a central component to reform governance in the interest of
growth, development, sustained economic growth and poverty alleviation. The founding authors
of the Constitution of India believed in the independence of the judicial system and, therefore,
conceived a planned module for the appointment of judges to the higher judiciary that worked as
a healthy practice till 1970s, viz., the opinion of the Chief Justice of India and the Chief Justice
of the appropriate High Court were sought and considered by the President of India as most
relevant in making the appointments of judges of the higher courts.1 The founding authors of the

1
Constitutional safeguards for the independence of the judicial system are prescribed in Articles 124 (2) (4) and
217 (1) and (b): Every Judge of the Supreme Court and High Court shall be appointed by the President after
consultation with CJI and such other Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary. … A Judge of the Supreme Court and of the High Court shall not be removed from
his office except on the ground of proved misbehavior or incapacity by way of a motion of impeachment duly

1
Constitution conceived to balance the power of appointment of judges to the higher judiciary. Dr.
B. R. Ambedkar expressed the views on the balanced-power approach between the executive--
legislature on the one side and the judiciary on the other side in the following words:

The draft article, therefore, steers a middle course. It 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. The provision in the article is that there should be consultation of persons who are ex
hypothesis, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of
provision may be regarded as sufficient for the moment. … With regard to the question of concurrence of
the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on
the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the
Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice
practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice
which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is
also a dangerous proposition.2

In the background of the above balanced-power approach expression, it discerns that

‘consultation’ does not mean and include ‘concurrence’; ‘consultation’ means discussion or talk
or opinion or conference over the viability of a distinct distinguished person of dignity, honesty,
sobriety and intellect fit to be considered to adorning the Supreme Court and/or High Court as a
Judge.

Unhappy practice: Razor sharp conflicts between the political-executive-nexus and the
Judiciary:

However, unhealthy and unhappy practices developed before, during and after national
emergency under the regime of Smt. Indira Gandhi –led congress government in 1970s, the
period that witnessed a razor sharp conflicts between the political-executive-nexus and the
judiciary on the question of supremacy in the matter of appointments of judges to higher
judiciary. Justice A. N. Ray was appointed CJI3 in supersession of Justices J. M. Shelat, K. S.
Hegde and A. N. Grover who had pronounced judgments along with majority opinions of seven
Justices inventing judicial craftsmanship of “basic structure” of the Constitution saving the
country, democracy, rule of law and the Constitution of India that did not find favour with the
Indira Gandhi-led Congress government in power. Likewise, Justice M. H. Beg was appointed

passed by the Parliament. Articles 125 and 221 enjoin that salaries, privileges, etc. shall not be varied to his
disadvantage after his appointment. Articles 121 and 211 state that no discussion shall take place in Parliament
with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
Articles 146(3) and 229(3) enjoin that administrative expenses including all salaries, allowances and pensions shall
be charged upon the Consolidated Fund of India. Article 222 states that the President may, after consultation with
the CJI, transfer a Judge from one High Court to any other High Court. Article 224 authorizes the President to
appoint additional and acting Judges in the High Courts if there appears to be temporary increase in the business
of a High Court or arrears of work in a High Court.
2
Constituent Assembly Debates, Vol. VIII dated 24 May 1949.
3
His tenure was from 26.04.1973 to 28.01.1977.

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CJI4 in supersession of Justice H. R. Khanna who had joined the majority Justices in
Kesavananda Bharati v. State of Kerala5 and handed down dissenting opinion in ADM Jabalpur
v. Shivkant Shukla6, which were conceded as antagonistic to the government in power. These
incidents were the beginning to undermine the independence of the judicial system, because
“politicians’ usual plan is to invade the constitution stealthily, and then wait to see what happens.
Their one and only object, now and always, is to get more power in to their hands that it may be
used freely for their advantage, and to the damage of everyone else. Beware of all politicians at
all times, but beware of them most sharply when they talk of reforming and improving the
constitution.”7

Wrestling for power between the judiciary and the executive-political-nexus:

The irritation in the ‘balanced- power’ approach Constitutional policy started immediately at the
inception of the Constitution. The conflict commenced over a series of cases. The Supreme Court
struck down the Madras government reservation order as ‘communal order’ because it was
arbitrary, discriminatory and against the concept of egalitarian society which was to have had
casteless and classless society in India.8 The first constitutional amendment 1951 was passed to
undermine the Supreme Court judgment by inserting clause (4) in Article 15. Besides, the same
amendment inserted Article 31(4) to protect Zamindari abolition legislations from being called in
question by any court on the ground it contravened Article 31 (3). The first constitutional
amendment 1951 also inserted Articles 31A and 31B in the fundamental rights Part III to protect
the Legislations and Regulations specified in the IX Schedule. The first constitutional
amendment also inserted the IX Schedule in the Constitution saving all the Acts in the Schedule
from judicial scrutiny. In Shankari Prasad Singh Deo v. Union of India9 the constitutionality of
first amendment was challenged but the amendment was upheld. However, in State of West
Bengal v. Mrs. Bela Banerjee10 and Dwarkadas Shrinivas v. Sholapur Spinning and Weaving
Co.11 the Supreme Court held that where the government had taken land (private property) for
rehabilitation of refugees or where the government had taken over the mill (sick industry)
without ‘just equivalent value’, i.e., according to market price, compensation violated the
fundamental rights of the owners/proprietors. The fourth constitutional amendment 1954
amended Article 31(2) by adding that no such laws shall be called in question in any court on the
ground that the compensation provided by that law is not adequate, and the amendment was

4
His tenure was from 29.01.1977 to 21.02.1978.
5
(1973) 4 SCC 225. The judgment was delivered on 24 April 1973 and Justice A. N. Ray was appointed CJI on 25
April 1973.
6
AIR 1976 SC
7
H. L. Mencken, The Constitution, Baltimore, 19 August 1935 as quoted in Santosh Paul, Choosing Hammurabi
Debates on Judicial Appointments, 2013, xv.
8
See State of Madras v. Champakam Dorairajan, AIR 1951 SC ; see also Ashok Kumar Thakur v. Union of India,
(2008) 6 SCC 1, para 666, which explains the concept of egalitarian society in the same vein.
9
1952 SCR 89.
10
1954 SCR 558.
11
AIR 1954 SC 1999.

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passed to curtail the impetus of the Supreme Court’s above mentioned judgments. Then came the
seventeenth constitutional amendment 1964 which added 44 Legislations in the IX Schedule
making them immune from judicial scrutiny for violation of the fundamental rights. This
amendment clarified ‘estate’ to mean ryotwari settlements and lands held for agricultural
purposes. The same amendment also provided for ‘full compensation’ for lands held within the
ceiling limit and for lands under personal cultivation. The constitutionality of this amendment
was challenged in Sajjan Singh v. State of Rajasthan12 , but it was held to be valid. It could
discern that the stumbling blocks for land reforms stood removed in making the Legislature the
formal arbiter or umpire of quantum of compensation in place of the court. However, the
dissenting opinion of Justices Mudholkar and Hidayatullaha that there were certain fundamental
principles of the constitution which could not be amended became the source-force for its re-
challenge in I. C. Golak Nath v. State of Punjab 13, which by hair thin majority 6:5 overruled
prospectively Shankari Prasad Singh and Sajjan Singh on the touchstone that fundamental rights
occupy a transcendental position in the Constitution and, hence, are beyond the amending reach
of the Parliament under Article 368. It unequivocally discerns that this case saved the
fundamental rights from the amending power of the Parliament. The decision indeed stirred the
government in power.

The majority 10:1 decision in R. C. Copper v. Union of India14 struck down the Bank
Nationalization Act as being violative of right to equality (Article 14) right to acquire, hold and
dispose of property (Article 19(1) (f)) and right to just equivalent compensation for the takeover
of the property (Article 31). The Supreme Court asserted that the compensation provided for the
takeover of the Banks was illusory of Article 31. The Supreme Court also held that the principles
of compensation laid down in the Act by the Legislature for appropriation of property could be
subjected to judicial inquiry. Justice A. N. Ray, the lone dissenter, however, opined that the
principles of compensation prescribed by the Legislature could not be subjected to judicial
examination or inspection, because, it seems, he believed in principle of Legislature arbitral or
umpire approach.

The majority verdict of the Supreme Court in Madhavrao Scindia v. Union of India (Privy
Purses case)15 struck down the government order seeking to withdraw the recognition of Privy
Purses granted to the rulers of erstwhile princely States.

These cases were setback to Mrs Indira Gandhi led congress government. Victory over Pakistan
in 1971 war was a boost to Mrs Indira Gandhi. Eventually, she dissolved the Lok Sabha seeking
afresh mandate from the electorate to reform the Constitution by democratic means to
implementing her ostensible ‘socialistic’ programs. Invisibly, she had jealous eyes on the
judiciary, which, according to her and her party, was not pliable to her designs. She and her party

12
AIR 1965 SC 845.
13
(1967) 2 SCR 762.
14
(1970) 3 SCR 530.
15
(1971) 3 SCC 9.

4
won the elections with absolute, i.e. ¾, majority, namely, 350 seats out of 518 seats in the Lok
Sabha. After wining with thumping majority in the elections, Mrs Indira Gandhi had
aggressively push the Parliament to pass four Constitutional amendments, namely, 24 th
Constitutional amendment, 1971 made two amendments in Articles 13 and 368 empowering the
Parliament to amend any provision of the Constitution and immunizing the Constitutional
amendments (Articles 13 and 368) from judicial review which took away or infringed the
fundamental rights; 25th Constitutional amendment, 1971 replaced the word ‘compensation’ by
the word ‘amount’ in Article 31 (2) which diluted the judicial rigours of ‘just equivalent market
value compensation’, and Article 31C was inserted which immunized any law from judicial
review that abridged the fundamental rights in Articles 14, 19 and 31 by giving effect to the
Directive Principles of State Policy enjoined in Articles 39(b) or 39(c); 26 th amendment, 1971
abolished privy purses; 29th amendment, 1972 inserted the two land reform amendments made in
1969 and 1971 to the Kerala Land Reforms Act, 1963, in the IX Schedule to the Constitution
protecting them from any judicial scrutiny of their violating fundamental rights, to reverse the
decisions of the Supreme Court in I. C. Golak Nath, R. C. Cooper (Bank Nationalisation) and
Privy Purse.

The constitutional validity of the above mentioned amendments were challenged in the Supreme
Court in Kesavananda Bharati v. State of Kerala16that was placed before thirteen judges who
heard the case for 68 days presented for the petitioners by a ‘court room genius Mr N. A.
Palkhivala’17 along with a team of competent lawyers Mr Soli Sorabjee, Mr Anil Divan, Mr D.
M. Popat. Mr M. L. Bhakta, Mr Ravinder Narain and Mr J. B. Dadachanji, worked as an
excellent team in presenting the constitutional niceties and interscities of the case. Mr H. M.
Seervai, Mr T. R. Andhyarujina, Mr Niren De (Attorney-General), Mr Lal Narain Sinha
(Solicitor-General), Mr Byra Reddy and Dr L. M. Singhvi appeared for the respondents. By hair
thin majority 7:6 (Justice H. R. Khanna’s last part of his opinion tilted the show) the Supreme
Court overruled Golak Nath case and held that though Parliament has unlimited power under
Article 368 to amend any provision in the textual Constitution, but it does not enjoy infinite
power to amend or abrogate or destroy the ‘basic structure’ or ‘basic framework’ of the
Constitution by the exercise of the power of amendment. The evolution of the principle of basic
structure is magnum opus of great scholarship as well as intellectual activism that had gone into
the preparation of this historic case by the distinguished lawyers on the floor and on the Bench.
Though the petition did not yield any direct relief to His Holiness Kesavananda Bharati who lent
his name as the petitioner, but he have had the consolation of being responsible for the ‘basic
structure’ or ‘basic framework’ or ‘basic identification’ doctrine thus saving the country India
that is Bharat from autocratic democracy; savior of Indian democracy, the rule of life, the rule of
life to serve the rule of human dignity, federal character of the Constitution that works on the
touchstone of federal comity ‘mutual reciprocal friendly principles of interdependence on each
other and not independent from each other, supremacy of the Constitution, Sovereignty, unity,
16
(1973) 4 SCC 225.
17
Soli Sorabjee and Arvind Datar, Nani Palkjivala The Court Room Genius, 2012.

5
integrity, democratic, republican, secular character of Indian polity, welfare State and egalitarian
society, essential features of the individual freedoms secured and assured to the citizens of India,
social, economic political and distributive justice, and above all judicial review.18

Herein, was the beginning of struggle for supremacy between Executive-Legislature nexus on
the one side and the Supreme Court for constitutional supremacy on the other side, and,
consequentially, happening of the supersession of three senior judges who were the votaries
along with the majority of seven of ‘basic structure’ doctrine and also the signatories to the
summary of the verdict. The principle of seniority in the appointment of Chief Justice of India
was given a go bye and Justice A. N. Ray who was fourth in the seniority and non-signatory and
non-votary of ‘basic structure’ principle to the summary of the verdict signed by nine Justices
was appointed the Chief Justice of India in supersession of three Justices Shelat, Hedge and
Grover because these superseded Justices were votary of ‘basic structure’ doctrine as well as
signatory to the summary of the verdict signed by nine Justices. The Judgment in the said case
was delivered on 24 April 1973; Chief Juctice Sikri retired on 25 April 1973; Justice A.N. Ray
was appointed CJI on 25 April 1973 who assumed office of CJI on 26 April 1973. The three
Justices who were superseded resigned in protest of their supersession. Should there be a
question of judicial morality (institutional morality) that the entire justices should have resigned
which could have saved the supremacy of the Constitution and independence of the judicial
system from being eroded. Had it been so this could have saved the constitutional practice and
independence of the judicial system from subsequent happening of supersession of Justice H. R.
Khanna and appointment of Justice M. H. Beg as CJI. Justice Khanna paid the price of joining
with the majority as a votary of basic structure principle and signatory to the summary of the
verdict along with nine justices in the Kesavananda case, and, secondly, his dissenting judicial
opinion in ADM Jabalpur (Habeas Corpus) case; Justice Beg got the prize being non-votary of
‘basic structure’ principle as well as non-signatory to the verdict of the summary of the verdict in
Kesavananda Bharati case. Justice Khanna resigned in protest. The question of judicial morality
(institutional morality) again becomes imperative as the judiciary lost the second opportunity to
resign thus saving the constitutional supremacy.

Constitutional mandate -- ‘Consultaion’: Bitter experiences:

The proclamation of national emergency under Article 352 of 21 months from 25 June 1975 to
21 March 1977 had cast chilling effects on independence of judicial system and independent
judges. Unhappy incidents had developed under the refuge of emergency. The power to transfer
High Court judges was used as a weapon against those who did not fall in line with the policies
of Mrs Indira Gandhi government and as many as fifty six judges were transferred from their
home State High Court to other High Courts not as a matter of constitutional exigency but as a

18
For identification of basic structure see the judicial opinions of majority justices in Kesavananda Bharati case; see
Id. pp.130-142; T. R. Andhyarujina, The Kesavananda Bharati Case --- The Untold Story of Struggle for Supremacy
by Supreme Court and Parliament, 2011; Zia Mody, 10 Judgements that Changed India, 2013; Santosh Paul,
Choosing Hammurabi Debates on Judicial Appointments, 2013.

6
matter of punishment. Justice Sankalchand Sheth, a judge in the Gujarat High Court, was
transferred from Gujarat High Court to the Andhra Pradesh High Court. 19 He challenged the
constitutional validity of Presidential notification in a writ petition before the Gujarat High Court
and the Gujarat High Court allowed the writ petition on the ground that the President had not
effectively ‘consulted’ the Chief Justice of India in making the transfer, which is an imperative
constitutional requirement. The Union of India filed an appeal before the Supreme Court and the
Supreme Court disposed it off on the assurance of the government that it would transfer back
Justice Sankalchand Sheth back to Gujarat High Court. It may be inferred that the Supreme
Court might have shown its mettle thus making the government to realize its mistake and
agreeing to transfer back the judge to his home High Court; it might also be discerned that prior
consent of the judge(s) ought to have been taken; it might also be construed that independence of
the judicial system and independent judges who are not pliable should not be punished by the
armour of transfer provision, which, otherwise, have had to be used in exigencies. It
unequivocally seems that the Indira-led congress government did not eschew or give up it’s
before and during emergency stand of uncompromising with the independent decisional making
power of the courts inasmuch as the government had meddled with the independence of the
judicial system and independent judges thus eroding the constitutional-institutional-practice so
well knit edifice in the making of appointment of judges to the higher judiciary.

Another incident of uncompromising attitude of the Indira-led government during the emergency
was 42nd amendment 1976 to the textual Constitution that reversed the ratio of Kesavananda
Bharati case and the fetter on the Parliament that it could not amend the ‘basic structure’ of the
Constitution was removed.

After the emergency, the Janata Party government passed 44th amendment 1978 which had
commendably undone 42nd amendment and restored the status quo ratio of Kesavananda Bharati
case. Unfortunately, the Janata Party led government had fallen because of their internal
mismanagement as well as bickering, and making a safe passage for second phase of Indira-led
congress government, which had again initiated the antagonistic as well as uncompromising
attitude with the independent decisional making power of the higher courts. The phase started
with the issue of a circular by the Law Minister Mr P Shivshankar dated 18 March 1981to the
Governor of Punjab and all State Chief Ministers to obtain the consent of additional judges of the
relevant State High Court to be appointed as permanent judges in any other High Court in India,
and to obtain the consent of people who would be offered judgeship in future to be appointed
initially in a High Court other than their home State High Court. The circular letter seemed to be
of political gimmick with an attempt to further enfeeble independence of the judicial system. 20 A
number of Public Interest Litigations (PILs) were filed questioning the constitutional validity of
Law Minister’s circular letter, constitutionality of appointing additional judges when there were
clear vacancies of permanent judges, constitutionality of transferring certain judges from one

19
Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328.
20
See N. A. Palkhivala, We, The People, 2007 Ed., p. 226.

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High Court to another. The eight writ petitions were clubbed together in S. P. Gupta v. President
of India (First Judges Case)21 , a pro bono public filed by a senior advocate of Allahabad High
Court. The decision was handed down by seven judges. In this pro bono public actio popularis
locus standi was relaxed inasmuch as a shift from personal cause litigation to public cause
litigation in the forms of ‘representative standing’ and ‘citizen standing’ where a public spirited
citizen(s) can file a writ petition(s) for the enforcement of public duties to protect the poor, the
downtrodden, and the socially or economically disadvantaged or lowly and the lost who are
unable to effectively protect their rights; the ‘cause of justice can never be allowed to be
thwarted by any procedural technicalities’, and, therefore, the doors of courts are ajar for such
persons.22 It discerns that these principles have become the bedrock of PIL (Public Interest or
Public Cause Litigation) or SAL (Social Action or Social Cause Litigation), and certainly not for
‘P.I.L. is a pill for every ill’. This was shift from archaic doctrine of standing. The Supreme
Court ordered that the correspondence between the Union Law Minister, the CJI and the Chief
Justice of Delhi High Court be produced urging that ‘right to know’ is an essential pillar of
transparency and openness of democracy. It unequivocally discerns that the ‘right to know’ is the
genesis of the right to information movement in India, which was a progressive shift in the
archaic or traditional principle of ‘protection of privileged communication’. The majority judicial
opinion on the questions of constitutionality of transfer of judges was that judges could not be
transferred from one State High Court to another as punishment; the consent of a High Court
judge was not an essential precondition for his transfer; an additional judge should usually be
made permanent after the expiry of his interim term; confirmation as a permanent judge was not
a right in itself. On the question of primacy in matters of appointment of judges of higher courts,
the majority of judges opined that in appointments of judges to the higher courts the primacy lay
with the Executive-Legislature because the executive was responsible to the legislature and
through the legislature accountable to the people of India and as such ‘secrecy in the selection
and appointment process’ shall be transparent. Besides, ‘consultation’ could not be construed as
‘concurrence’, because in the constitution practice there seemed no place of ‘veto’ to be
exercised by the CJI. Justice P. N. Bhagwati for the majority opined:

The opinion of each of the three constitutional functionaries is entitled to equal weight and it cannot be said
that the opinion of Chief Justice of India must have primacy over the opinion of the other two constitutional
functionaries. If primacy were to be given to the opinion of chief Justice of India, it would, in effect and
substance amount to ‘concurrence’, because giving primacy would mean that his opinion must prevail over
that of the Chief Justice of the High Court and the Governor of the State, which means that the Central
Government must accept his opinion. But it is only ‘consultation’ and not ‘concurrence’ of Chief Justice of
India that is provided in clause (1) of Article 217. So also where a judge of the Supreme Court is to be
appointed, the Chief Justice of India is required to be consulted, but again it is not ‘concurrence’ but only
‘consultation’ and the Central Government is not bound to act in accordance with the opinion of Chief
Justice of India. The ultimate power of appointment rests with the Central Government and that is in accord
with the constitutional practice prevailing in all democratic countries. Thus the appointment of a judge
belonging to the higher echelons of Judicial Service is wholly in the hands of the Executive. This is, of

21
AIR 1981 SC 149.
22
Id. at para 17 Justice P. N. Bhagwati’s judgment.

8
 course, not an ideal system of appointment of judges, but the reason why the power of the appointment of
the judges is left to the Executive is that Executive is responsible to the Legislature and through the
Legislature it is accountable to the people who are consumers of justice. The power of appointment of
judges is not entrusted to the Chief Justice of India or the chief Justice of the High Court because they do
not have any accountability to the people and if any wrong or improper appointments made, they are not
liable to account to anyone for such appointment.

On the question of constitutionality and legality of Law Minister’s circular letter, the Supreme
Court, however, refused to strike it down stating that it did not carry any constitutional and legal
sanction. It is, however, submitted that the Supreme could have expressed its judicial policy in
this perspective with great vacuum.

It discerns that the Apex Court was not in favour of purloining or robbing off the constitutional
institution and constitutional practice in appointment of judges of the higher courts; both the
Executive-Legislature and Judiciary were to function in their own domain assigned to them
under the constitution, but, of course, with mutual respect to each other in following the practice
of mutual reciprocity. However, the neat scanning of the case also demonstrates that it was a
judgment of ‘win win for all’ i.e. ‘everybody wins’. But, be that as it may, it was, in reality, a
decision in favour of the opposing party, namely, the ‘executive-political duo win’. 23 This
decision made the government the final umpire or arbiter or gave the steer in the hands of the
government; it did disturb the ‘balanced power’ approach between the executive-legislature-
political and the judiciary; it was perceived to be a ‘secret loyal’ or ‘pliable’ process that
undermined the independence of the judicial system and itself compromised its judicial power of
sustaining independence, the judicial independence it had shown in evolving the path of basic
structure, public interest litigation, judicial review.24

The First Judges case was perceived to have had vacillated between extremes for a decade. The
public opinion was being generated for some form of impartial and independent institution in the
appointments of judges to the higher courts --- a collegial type broad based body institution
consisting of members of higher judiciary, executive, legislature, public or social society and
academia.25 Amongst these extremes, the question regarding appointments and transfers of
judges to the higher courts was deemed having merits and, therefore, was referred to a larger

23
See the comments by Upendra Baxi, Courage, Craft and Contention: The Supreme Court in the Eighties, 1985, p.
38.
24
See in particular Zia Mody, 10 Judgements That Changed India, 2013, pp.161-185; Manoj Mate, Two Paths to
Judicial Power: The basic Structure Doctrine and Public Interest Litigation in comparative Perspectives, San Diego
International Law Journal, 12 (2010), p. 175; Santosh Paul, Choosing Hammurabi Bebates On Judicial
Appointments, 2013.
25
The Law Commission of India 121st Report, 1987 (languishing in the archives) suggesting the setting up of a
National judicial Commission consisting of CJI, 3 Senior Judges of the Supreme Court, retiring CJI, 3 Chief Justices of
High Court according to their seniority, Minister of Law and Justice, the Attorney General of India and an
outstanding law academic; 1990 constitutional amendment Bill, never allowed to become legislation, proposing
article 307A introducing National Judicial Commission; K. L. Bhatia, Judicial Independence and Judicial
Appointment: Independence from External and Internal Control, AIR 2000 (Journal) 33; K.L. Bhatia, Constitution
Review or Restructure, AIR 2001 (Journal), 33.

9
Bench of nine Judges for reconsideration in Supreme Court Advocates-on -Record Association v.
Union of India26(Second Judges case) so that the higher courts would be free from suspicion of
executive-legislature control. The Supreme Court has had the occasion to re-examine the issues
like (1) the primacy of the opinion of the Chief Justice of India in the matter of appointments of
Judges to the Supreme Court and the State High Courts and in the matters of transfers of High
Court Judges including Chief Justices of the High Courts; (2) justiciability of these matters,
including the fixation of the Judge-strength in the High Courts; and (3) the correctness of the
majority view in S. P. Gupta case (First Judges case). The Supreme Court in majority a proprio
vigore opined that the Chief justice of India has primacy in the matter of appointments of justices
to the Supreme Court and High Courts including the transfers of High Court(s) judges. 27 From it,
it discerns that there has been shift in the judicial trend in the process of making appointments to
the higher courts from ‘political influence’ or ‘government supreme authority’ to ‘judges’
supreme authority’ or ‘judicial primacy in the opinion of the Chief Justice of India’ in judicial
approach or mind or attitude to the primacy question of judicial independence and judicial
appointments.28 While overruling the First Judges case, the majority justices decisively
decentralized the power conferred upon the CJI and the Chief Justice of the relevant High Court
by granting this power to the plurality of judges by creating the collegiums system thus
preserving its authority to dictate, because the plurality of judges in the formation of the opinion
of the Chief Justice of India was (an) in-built check against the likelihood of arbitrariness or bias
as well as any erosion of the independence of the judiciary 29 --- a shift from the earlier judicial
approach, in the words of Mathew Arnold: “A beautiful and ineffective angel, beating in the void
his luminous wings in vain”.30 And, this judicial approach has been criticized with emphasis on
“sacred ritual with new priests”.31 In Second Judges case the term ‘consultation’ was ticklishly
made ‘concurrence’ by the judicial craftsmanship which was virtually ‘rewriting the
constitutional provision’32 and excessively assuming the remedial measures to rectify the “self
inflicted wounds caused by the supreme Court’s judgment in the First Judges case”.33 Fali S.
Nariman expressed his opinion that the Second Judges was a case he won which he would
“prefer to have lost”.34 Justice J. S. Verma, an author of the majority judgment in Second Judges
case, lamented that “the judgment was very much misunderstood and misused. Therefore, some
kind of rethink was required. The judgment said the appointment process of High Court and
Supreme Court judges was basically a joint or participatory exercise between the executive and
the judiciary, both taking part in it”.35 Justice P. N. Bhagwati was equally sore about the process

26
AIR 1994 SC 268; see also Subhash Sharma v. Union of India, AIR 1991 SC 631.
27
Id. at pp. 430-431.
28
See K.L. Bhatia, op. cit. 25 at 40.
29
Supra 26 op. cit., at pp. 430-431.
30
Mathew Arnold, Essays in Criticism, quoted in Collins Gem Dictionary, 1979, p. 28.
31
Zia Mody, op. cit. at p. 176.
32
D. D. Basu, Shorter Constitution of India, 2001 ed., p. 777.
33
Arvind P. Dattar, Commentary on the Constitution of India, first ed., p. 1153.
34
Fali S. Nariman, Before Memory Fades, p. 387.
35
Frontline, Vol. 25, issue 20, 27 Sep. 2008 --- 10 Oct. 2008 as quoted in Zia Mody, op. cit. at p. 177.

10
of appointment of judges to higher courts and as such he expressed his concerted opinion in these
words: “The process of judicial appointments and transfers is shrouded in mystery. The public
does not know how judges are selected and appointed or transferred and what principles and
norms govern this process. The exercise of the power of appointment and transfer remains a
sacred ritual whose mystery is confined only to a handful of high priests. … The process may on
occasions result in the making of wrong appointments and transfers and may also at times,
though fortunately very rare, lend itself to nepotism, political as well as personal and even trade
off.”36

Be that as it may, the process is inasmuch as mysterious as sacred ritual in pre-1981 and post-
1981. In the backdrop of the criticism, a Presidential Reference 37 (Third Judges case) was made
to the Supreme Court and the Supreme Court was to give its judicial opinion in regard to three
broad aspects of the questions raised in the President Reference of 23 July 1988, namely, (1)
consultation between the Chief Justice of India and his brethren Judges in the matter of
appointments of Supreme Court and High Court Judges and transfers of the latter, (2) judicial
review of transfers of Judges of High Courts, and (3) the relevance of seniority in making the
appointments to the Supreme Court. The Supreme Court’s nine Judge Bench penned down its
advisory opinion on the Judicial Supremacy as follows:

1. “Thje expression consultation with the chief Justice of India requires consultation with a
plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole
individual opinion of the chief Justice of India does not constitute consultation within the
meaning of the constitutional provisions.
2. The transfer of puisne Judges is judicially reviewable only to the extent that the
recommendation that has been made by the consultation with the four senior most puisne
Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court
from which the transfer is to be effected and of the Chief Justice of the High Court to
which the transfer is to be effected have not been obtained.
3. 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. Insofar as
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.
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court, in respect of materials and
information conveyed by the Government of India for non-appointment of a Judge
recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his colleagues … does
not refer only to those Judges who have the High Court as a parent High Court. It does

36
First Judges Case, op. cit., at para 84.
37
AIR 1999 SC 1.

11
 not exclude Judges who have occupied the office of a Judge or Chief Justice of that High
Court on transfer.
6. “Strong cogent reasons” do not have to be recorded, but what has to be recorded is the
positive reason for the recommendation.
7. The views of 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 to the extent set
out in the body of his opinion.
8. The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultative process.
9. Recommendations made by the Chief Justice of India without complying with the norms
and requirements of the consultative process are not binding upon the government of
India.38

A critical examination of the advisory opinion undoubtedly unfolds that participatory

consultation process amongst the Justices of the superior court has been strengthened. Justices
too are men and men seldom act like angels. The Superior Court is the “umpire in the federal
system”39, and it is quintessential inquisitive searching for an answer: Whether the “umpire” has
really worked as an ‘umpire” that posts of Justices are not allowed to become politicized? A
united Bar, a well equipped Bench, three wings of the government under a constitutional
democracy, civil society and law academia have to work with mutual respect participatory
approach for achieving just ends by just means to upholding the constitutional culture and
constitutional morality to face the challenges of politicking the institution. In our opinion, it is
desirable to have a broad based constitutional institution in the form of National Judicial
appointment Commission in the matters of appointment, transfers of justices of the higher courts
plus other activities of the judiciary such as funds, court management, staff, equipments,
expansion of the strength of the higher judiciary. Whether the ensuing NJAC legislation shall
meet these aspirations?

National Judicial Appointment Commission: A New Avtar:

Whether the NJAC shall wriggle out the conviviality as well as proximities of playing with the
Constitution as a play thing and be a step forwards saying go bye to antagonistic approach?
Whether the 99th Constitution Amendment, 2014 and the National Judicial Appointment Act,
2014 are free from flaws? Article 124 (2) after the 99 th Constitutional Amendment shall read as:
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal on the recommendation of the National Judicial Appointment Commission referred
to in Article 124A and shall hold office until he attains the age of sixty five years”. 40 Article 217

38
Id. at p. 22.
39
Burton, Unsung Services of the Supreme Court, (1955) 24 Ford L. Rev. 169 at p. 170.
40
Similar amendments in Articles 127 and 128, viz., in place of Chief Justice of India with the previous consent of
the President the words “the National Judicial Appointments Commission” have been substituted. Similarly,
Articles 222, 224 224A have been amended accordingly.

12
(1) after 99th Constitutional Amendment shall read as: “Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal on the recommendation of the
National Judicial Appointment Commission referred to in Article 124A, 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”. Article 124A inserted by 99 th Constitutional Amendment
lays down the constitution of the National Judicial Appointment Commission consisting of (a)
the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of the Supreme
Court next to the Chief Justice of India, Members, ex officio; (c) the Union Minister of Law and
Justice, Member, ex officio; (d) two eminent persons to be nominated by the committee
consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in
the House of the People or where there is no such Leader of Opposition, then, the Leader of the
single largest Opposition Party in the House of the People, Members, and one of the eminent
person shall be nominated from amongst the persons belonging to the Scheduled Castes, the
Scheduled Tribes, Other Backward Classes, minorities or Women for a period of three years.
Clause (2) of Article 124A states: No act or proceedings of the National Judicial Appointments
Commission shall be questioned or be invalidated merely on the ground of existence of any
vacancy or defect in the constitution of the Commission. Article 124B inserted by 99 th
Constitutional amendment enjoins the functions of NJAC, namely, “It shall be the duty of the
National Judicial Appointments Commission to (a) recommend persons for appointments as
Chief Justice of India, Judges of the Supreme Court, Chief Justice of High Courts and other
Judges of High Courts; (b) recommend transfer of Chief Justices and other Judges of High
Courts from one High Court to any other High Court; (c) ensure that the person recommended is
of ability and integrity.

Though the Constitutional amendments per se seek to broad base the method of appointments of
Judges in the Supreme Court and High Courts, and enable the participation of judiciary,
executive and eminent persons and ensure greater transparency, accountability and objectivity in
the appointment of the Judges in the Supreme Court and High Courts, but these amendments
suffer from the vice of objectivity. First of all, the National Judicial Appointments Commission
Act, 2014 should have been the integral part of the Constitution of India as a constitutional
institution. As an independent law, there shall be maximal chances of politicizing it with political
interference and more the chances of pliability and minimal chances of fair and fearless selection
of right persons to adorn the Bench.

It is a welcome gesture to shifting the limited consultation process from CJI, etc. to NJAC. But,
nevertheless, it, too, suffers from narrowness approach. The proposed composition of six
members NJAC is a narrow based/miniscopic body with even number of members. There seem
more chances of exercise of veto and that shall not yield aspired results. Since the NJAC shall act
as search committee, selection committee, recommendatory body for the appointments of the
judges in the higher judiciary, therefore, it is desirable that NJAC should be a broad based body
with odd numbers so that the aspired results are achieved with majority decision. In our opinion,

13
there should be representation from the Bar, State Legislatures, Both the Houses of Parliament,
civil society, eminent jurists, and women so that there is healthy participatory opinion building
regarding the persons to be selected and recommended for appointments to the higher judiciary
to adorning the Supreme Court and High Courts. The broader based NJAC shall also strengthen
the fabric of federalism which has to be on the genesis of mutual reciprocal friendly and not
antagonizing each other. The constitutional amendments stultify the process of judicial review,
and assuaging or muffling judicial review is unequivocally against the principle basic structure.

Submissions:

The National Judicial Appointment Commission (NJAC) vide 99 th Constitutional Amendment,

2014 and The National Judicial Appointments Commission Act, 2014 is a step forwards to
minimize political interference and sustain the independence and integrity of the judiciary in
matters relating to the appointment of judges to the higher courts. The NJAC shall replace
collegium juristocracy having Hamilton’s insights that a “power over a man’s subsistence
amounts to a power over his will”. Being a votary for NJAC, we feel that NJAC should not be
narrow based with miniscopic even number institution, but it ought to be a broad based NJAC
consisting of equitable odd number of members from higher judiciary, Bar, Executive,
Legislature and civil society (eminent persons/jurists/academics of highest integrity), which
alone shall sustain the institution on the touchstone of “participatory consultative process”. The
broad based NJAC is imperative to bring about a healthy change in the outlook of higher
judiciary and come out of the cobweb of parochial regional or narrow outlook. A broad based
NJAC is vital in a federal set-up, because for the harmonious functioning of the Constitution the
three wings of the State must appreciate each other’s role and develop mutual trust as well as
mutual respect that alone can be helpful to sustain and maintain the dignity of the judicial
institution to promoting judicial independence. The NJAC institution may seldom act like angels,
but, nevertheless, shall be an “umpire in the federal system”. 41 In our view, the NJAC may give
an appearance of fairness to the process of search for judicial selection that may eliminate the
secrecy on secrecy. There seems nothing to be holy about the formality or informality of the
system, the only crucial factor in federalism is strong judiciary and judicial independence is
assurance of a merit selection and a high standard of judicial appointment where none shall have
the occasion to wrestle to complain that “there are few judges whom any sane man would like to
go before and there are fewer in whose tribunal it is not almost a misfortune to appear” 42, rather
every Indian should feel pride in saying: “Higher courts are superior because they are right; and
not right because they are superior”.

41
Burton, Unsung Services of the Supreme Court, 1955, 24 Ford L. Rev. 169 at p. 170.
42
Quoted in Gardiner, The machinery of Law: Reform in England, 69 Law Q. R. 46 at 49 (1963); Shimon Shetreet,
Judges on Trial A Study of the Appointment and Accountability of the English Judiciary, 1976, p. 383 at p. 390; Lord
Widgery, Judging the Judges, as quoted in Shimon Shetreet, op. cit. at p. 415.

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