CHAPTER - VI

SUPREME COURT INTERPRETATION ON

JUDICIAL APPOINTMENTS

Judges have, of course, the power, though, not the right,

to ignore the mandate of a statute and render judgment despite
of it. They have the power, though not the right, to travel
beyond the walls of the interstices, the bounds set to judicial
innovation by precedent and custom. None the less, by abuse of
power, they violate the law.1

BENZMIN N. CARDOZO

In this chapter some of the decisions of the Supreme Court

and views of Supreme Court judges regarding appointment of
Higher Judiciary are briefly highlighted.

6.1. INTRODUCTION

The presidential form of government envisages legislative,

executive and judicial functions as separate from each other.
The organs performing these functions should not be dependent
on or discharge the functions of other organs. The rationale
behind this doctrine of separation of powers is that the merger
of all powers in a single body will result in autocracy and
negation of individual liberty2. In addition to this the principle
of checks and balances operates to ensure that no organ is left
free to arbitrarily exercise the power assigned to it. The
Constitution recognizes equality between the legislature,

1 Benzmin N. Cardozo; The Nature of the Judicial Process, Yale University Press, 1921, pp 129 to
135
2 M.P. Jain, Indian Constitutional Law Volume 1 (5th edn., Nagpur: Wadhwa and Co., 2003) at
217-218

270
executive and the judiciary as well the concept of checks and
balances3.

At the time of formation of the Constitution the

magistracy in most states was under executive control. During
the debates in the Constituent Assembly it was proposed that a
judiciary ‘completely separate’ from and wholly independent of
the executive and legislature be created.4 While accepting the
idea of independence of the judiciary, the Drafting Committee
rejected the proposal of the judiciary being completely separate
and wholly independent. 5 It was envisaged that the judiciary
would act as a watchdog of democracy. 6

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. Not only this, the constitution discloses a distinct
bias in favor of the independence of the judiciary. It is in
furtherance of this objective that several provisions relating to
the appointment and removal of judges, at whatever level may
be, have been enacted.

The Judges preside not only over the cases that arise in
criminal and civil justice systems but their decisions affect the
society in many other areas such as human rights, judicial
review, family law, mental health and immigration7. They are
very often entitled to chair major inquiries whenever an

3 Ibid-2 p. 218
4C.A.D. VolVIIIat218
5 Ibid-4 at 219-220
6 Ibid-4 at 257
7 M.C. Mehta v. Union of India, AIR 1987 Sc 1086, Subhash Sharma v. State of Bihar ASK 1991
Sc 420, State ofPunjab v. Mahendra Singh Chawla AIR 1997 SC 1225

271
impartial and independent investigation is required. The faith of
the. masses in the justice administration system revolves around
the confidence that the common man has developed on the
judges. It shows the phenomenal and unparalleled impact of
judicial actions on the day to day life of the masses. The
beginning and end of judicial reform is the appointment of the
right kind of judges, be it in the Supreme Court, the High Court
or the subordinate judiciary. The appointment of judges is the
prime and foremost link in the chain of judicial reform. As
Justice Bhagwati would say a right appointment “would go a
long way towards securing the right kind of judges who would
invest the judicial process with significance and meaning for the
deprived and exploited sections of humanity.” They are very
often entitled to chair major inquiries whenever an impartial and
independent investigation is required. However it is
astonishingly ironical that the people have developed more faith
in judiciary than the legislature whose members are elected by
them. The theory states that no wing of the State is either
superior or inferior to any another wing. 8 If this principle is to
be ignored then the legislature ought to be at the apex, as it
replicates the general will of the public at large, unlike the
judiciary.

India may be among the few countries in the world where

judges appoint themselves. This practice started after 1993
replacing the system of government picking judges for Higher
Judiciary.

8 S. P. Gupta v. Union of India & Ors. AIR1982SC149 para 26, Bhagwati J while discussing the
concept of judiciary, lays down that, the Judiciary, which is a separate but equal branch of the
State...

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 The Supreme Court discovered as early as 1951 in
the Delhi Laws case, 9 discovered the essence of separation of
powers as the core of the Constitution. In 1975 in Indira Nehru
Gandhi v. Raj Narain 10 the Court elevated this feature of
separation of powers to the basic structure of the Constitution.
Even then there is no rigid recognition of the principle of
separation of powers as the parliamentary system is based on
close coordination between the executive and the legislature.
While the Constitution does not contemplate that one organ
should assume the functions of another, there is no separation
between them in its absolute rigidity. n

In a democratic society founded upon the rule of law, the

relationship between the judiciary and executive must be based
on mutual respect and trust and a willingness to accept the
foundations for cooperation and coexistence. This is to say that
courts should respect all acts of the executive within its lawful
province and the executive should respect all decisions of the
courts as to what its lawful province is.12

The procedure for the appointment of Judges to the

Constitutional Courts as per the constitutional text underwent a
change after the three pronouncements of the Supreme Court
which need to be considered for a fuller and more incisive
understanding of the present scenario and its effect on the
selection and appointment judges.

9 Delhi Laws Act (1912), Re, AIR 1951 SC 332

10 (1975 SCC (Supp) 1
n Ram Jawaya V. State ofPunjab AIR 1955 SC 549 c.f. supra note 1 at 218
12 Anthony Bradley, “Separation of Powers in a Constitutional
Democracv”www.ifes.org/rule of law/JI Conferences/Malawi/Pat>er%20-
%20Bradlev.pdf (October 28,2003)

273
 Nowhere is the required intellectual caliber or the
intellectual standing necessary stipulated for making the
recommendation. The debates also do not mention anywhere the
qualities and capabilities required for an advocate to . be
appointed as a judge. A judge either to the High court or the
Supreme Court, undoubtedly a constitutional appointment, has
enormous powers that can be uncritically exercised and the
interpretive authority entrusted to them has destructive
potentialities. 13 E Cahn points out that the best and worst
propositions of social ethics, politics and law will not preserve
us if men who apply them are themselves philistines and
mediocrities, even affable mediocrities. Nothing earthly can
preserve us without sharply improved human qualities of
leadership and citizenship.14

6.1.1. Appointment of Chief Justice of India

Art. 124 is silent on the appointment of Chief Justice of

India. The seat of Chief Justice of India is filled on
conventional practice i.e. the senior most judge of the Apex
court would become Chief Justice of India. But in the year 1973
the Government suddenly departed from this established practice
when Justice A.N. Ray was appointed Chief Justice of India in
preference to his senior colleagues, Justices Shelat, Hedge and
Grover. Again in 1977 Government appointed Beg J. as the
Chief Justice of India, bypassing Khanna J. who was then senior
most judges. But, later on Chandrachud J. who was the senior

13 “Selection and impeachment ofjudges” by K.G. Kannabiran, PUCL bulletin march 2005
14 E. Cahn (1967) ‘Confronting Injustice’ in Lord Lloyd of Hampstead, Introduction to
Jurisprudence, fourth edition, edited by MDA Freeman, Steven and Sons, London, 1979

274
most judges was appointed as Chief Justice of India and the
conventional practice was restored.

The convention of appointing Chief Justices in the High

Courts and after 1950 in the Supreme Court is best considered
with reference to the departure from the- existing policy when on
25th April 1973; Ray J. was appointed Chief Justice of India
superseding Shelat Hegde and Grover JJ. who were senior to
him. This case of superseding the three judges came to be
referred as “The Suppression of Judges”. The Suppression of
Judges gave rise to an acute controversy and became the subject
of a number of publications. 15

While the method of selection appointment by

Government being a mere formality to subordinate judiciary has
not evoked any controversy, the method of appointment to and
more particularly the actual manner in which appointments were
made to the High Courts and the Supreme Court has been a
subject matter of good amount of controversy.

15 Kuldeep Nayr , Supression of Judges, Indian Bank Co., New Delhi, pp 156. Contents” preface :
The 13* Chief Justice (kuldeep Nayar); the Explanations (J.M Shelat); A Dangerous Doctrine (K.S
Hegde); Questions That Must be Answered (A.N. Grover); Appointment of Chief Justice
(Jayaprakash Narayan); Chief Justice of India: Criteria of Choice (S.Mohan Kumaramangalam);
Govemments’s case (H.R. Gokhale); Choosing the Judges (M.C. Chagla); A Judiciary made to
Measure (N.A. Palkhivala) [ Contents: Part 1: An Earnest Appeal (jayaprakash Narayan); part ii:
Undermining of Judicial Independence (M.C. SETLVAD); Unjustified Departure from settled
Convention (M.H dayatulla); Improper exercise of Executive Power (J.C Shah); Back From
Freedom to Tyranny (C.K. Daphtary); Subversion of the Constitution from within (H.V.R. Iengar);
part III The Supression of Judges - The Price of Executive Interference (K. Subba Rao) ; The
saddest day in the history of our Institutions (Joint statement by judges and lawyers, Mr. M.C.
Setlvad the Former Attorney General of India, Mr. M.C. Chagla, a former Chief Justice of Bombay,
Mr. J.C. Shah the Former Chief Justice of India, Mr. K.T. Desai, the Former Chief Justice of
Gujarat, Mr. V.M. Tarkunde , a Former Judge of Bombay High Court and senior Advocate, and
Mr. N.A. Palkhivala a leading senior Advocate,; The Bar Protest (A.G.Noorani); A Judiciary Made
to Measure(N.A. Palkhivala); Consequences of Supression; (an interview with former Chief Justice
S.M. Sikri)’ The Judgement (H.P. Rania); crisis in the Judiciary by Justice Hegde;
Kumaramangalam, Judcial Appointments (Oxford and I.B.H. Publishing Co. pp 95. The book was
prepared before his death in an air crash in May 1973). H.M. Seervai views on the controversy in
A Note on the Supression of Judges in Vol II (2nd ed.) (1976) of this book at pp. 1415-20.

275
 6.2. OBSERVATIONS OF SUPREME COURT IN SAMSHER
SINGH’S CASE

In Shamsher Singh vs. State of Punjab16 the appellant

Shamsher Singh was a Subordinate Judge on probation. His
services were terminated by the Government of Punjab in the
name of Governor of Punjab by an order which did not give any
reasons for the termination. Likewise, the services of Ishwar
Chand Agarwal were also terminated by the Government of
Punjab in the name of Governor on the recommendation of the
High Court. The appellants contended that the Governor as the
constitutional or the formal head of the State can exercise
powers and functions of appointment and removal of members of
the subordinate judicial service only personally. The appellants
placed reliance on the decision of this Court in Sardari Lai's
case 17 where it is held that the satisfaction for making an order
under Art.311 is the personal satisfaction of the President or the
Governor.

The State, on the other hand, contended that the Governor

exercises powers of appointment and removal conferred on him
by or under the Constitution like executive powers of the State
Government only on the aid and advice of his council of
Ministers and not personally. The Governor is by and under the
Constitution required to act in his discretion in several matters.
Articles where the expression "acts in his discretion" is used in
relation to the powers and functions of the Governor are those
which speak of special responsibilities of the Governor. Our
constitution embodies generally the parliamentary or cabinet

16 Shamsher Singh & Anr vs State Of Punjab on 23 August, 1974 AIR 2192, 1975 SCR (1)814
17 AIR 1971 SC 1547

276
system of Government of the British model. Under this system
the President is the constitutional or formal head of the Union
and exercises his powers and functions conferred on him by or
under the Constitution on the aid and advice of his council of
Ministers.

Under the cabinet system of Government, the Governor is

the constitutional or formal head of the State and exercises all
his powers and functions conferred on him by or under the
Constitution on the aid and advice of his council of Ministers,
save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. These
^appeals have been placed before a larger bench to consider
whether the decision in Sardari Lai's case18 correctly lays down
the law. It was further contended that since the probationer
continued in service after the expiry of the maximum period of
probation he became confirmed that the termination was by way
of punishment and was in violation of Art.311 and that the High
Court failed to act in terms of the provisions of Art.235 of the
Constitution and abdicated the control over subordinate
judiciary by asking the government to enquire through the
vigilance department.

The decision in Sardari Lai's case 19 that the President

has to be satisfied personally in exercise of executive power or
function and that the functions of the President cannot be
delegated is not the correct statement of law and is against the
established and uniform view of this Court as embodied in

18 Ibid 17

19 Ibid 17

277
several decisions. The President as well as the Governor is the
constitutional head or formal head. The President as well as the
Governor exercises his powers and functions conferred on him
by or under the Constitution on the aid and advice of his council
of Ministers saves in spheres where the Governor is required by
or under the Constitution to exercise his functions in his
discretion.

The position of the President of India is very different. He

is the Chief Executive because the executive power of the Union
is vested in him. But in this case the Supreme Court held that
real executive power is wielded by his Council of Ministers,
whose advice the President is under an obligation to follow.20

In this case the Bench observed: “In all conceivable cases,

consultation with highest dignitary of Indian justice will and
should be accepted by the Government of India and the court
will have an opportunity to examine if any other extraneous
circumstances have entered into the verdict of the Minister, if
he departs from the counsel given by the Chief Justice of India.
In practice, the last word in such sensitive subject must belong
to the Chief Justice of India, the rejection of his advice being
ordinarily regarded as prompted by oblique considerations
vitiating the order.” a most emphatic statement regarding the
role of Chief Justice of India in all such matters.

20 Subject to rare exceptions pointed out in the concurring judgment delivered by Krishna Iyer J.
for himself and Bagwati J,: (1975) 1 S.C.R at pp. 875-6 (’74) A.SC. at p. 2230

278
6.3. OBSERVATIONS OF SUPREME COURT IN SANKAL
CHAND SETH CASE

First in Union v. S.H. Sheths (“Sankalchand’s Case”) 21

and in S. P. Gupta V. Union (“The Judges case”) the Supreme
Court decided the constitutional questions of utmost importance
affecting the higher judiciary in India. The two cases, though
separated by over 5 years, are closely connected. Sankalchand’s
case played an important part in the judge’s case.
Sankalchand’s case is a case of great importance on the status
of High Court Judges and the independence of judiciary. During
the Emergency a list of 56 Judges to be transferred without their
consent had been prepared, but in the first instance 16 Judges
had been transferred and the name of other judges on the list
were deliberately leaked.22 One of the Judge so transferred was
Sheth J. of Gujarat High Court filed a writ petition against the
Union of Indian and the Chief Justice of India challenging the
order of transfer as ultra vires and invalid.23 In this case the
validity of a Presidential order transferring a judge of the
Gujarat High Court was challenged on the grounds that it was
done without the consent of the concerned Judge and without
consultation of the Chief Justice of India. The order was also
challenged on the grounds that it was passed in breach of the
assurance given by the then law minister A.K.Sen in 1963 that

21 (1978) 1 S.C.R 423, (’77) A.SC. 2328, (1977)4 S.C.C. 193

22 The observations of Untwali J. “ but one thing is certain which I would venture to say,... that the
order of transfer of so many Judges at one and the same time created a sense of fear and panic in the
minds of the Judges and others throughout the country and led them to suspect strongly that the
orders of transfers were made by and large in cass of Judges who had shown exemplary coinage
and independence even during the period emergency in deliuvering judgements which were not to
the liking of the men in authority, including the judgements in many MISA cases... But one thing is
certain and I again take courage to say so with the utmost responsibility, that the panic created had
shaken the very foundation and the structure of the independence of the judiciary throught the
country.
23 In the petition which he filed, no interim injuction was asked for, as he did not desire to be a
judge of the High Court under the order of that Court. Advisedly, there was no prayer for costs
because the petition was filed in the public interest to uphold the independence of the judiciary.

279
High Court judges would not be transferred without their
consent. The Supreme Court held that the consent of the judge
concerned was not necessary.

In the SankalChand Sheth Case 24 the Constitution Bench

explained the importance of the Independence of Judiciary thus:
“Now the independence of the judiciary is a fighting faith of our
Constitution. Fearless justice is a cardinal creed of our founding
document. It is indeed a part of our ancient tradition which has
produced great judges in the past. In England too, from where
we have inherited our present system of administration of
justice in its broad and essential features, judicial independence
is prized as a basic value and so natural and inevitable it has
come to be regarded and so ingrained it has become in the life
and thought of the people that it is now almost taken for granted
and it would be regarded an act of insanity for anyone to think
otherwise the Constitution makers, therefore, enacted several
provisions designed to secure the independence of the superior
judiciary by insulating it from executive or legislative control,
even with regard to the Subordinate Judiciary the framers of the
Constitution were anxious to secure that it should be insulated
from executive interference and once appointment of a Judicial
Officer is made, his subsequent career should be under the
control of the High Court and he should not be exposed to the
possibility of any improper executive pressure."25

The Supreme Court held that the consent of the judge

concerned was not necessary. However, Justice Bhagwati and

24 Ibid-21

25 Ibid 21

280
Justice Untwalia, in their minority judgments held that
interpreted Art.222(1) as embodying consent of the judge
proposed to be transferred as a necessary condition for the
exercise of the Presidential power under the Article. However,
the Court in its unanimous opinion laid stress upon the
independence of the judiciary being a vital ingredient of our
legal system and that the threat of transfer at the whims and
caprices of the executive constitutes a major threat upon that
independence. Therefore, transfer of judges can only be made in
public interest. Any transfer who is not in public interest can be
challenged in the courts as ultra vires or without jurisdiction.
Also, no transfer can be made without consultation with the
Chief Justice of India. However, such consultation does not
mean the concurrence.

As per V.R. Krisha Iyer and S.M.F. Ali., JJ: Strictly

speaking when a Judge is transferred from one High Court to
another under the clear sanction of law namely, Art.222(1) of
the Constitution a fresh oath is not necessary. But even if on a
liberal interpretation of Art.219 such an oath may be necessary
when a Judge is transferred from one High Court to another and
before he enters in his new office as a transferee Judge, that,
however, not all shows that a Judge cannot be transferred
without his consent.26 As per V.R. Krishna Iyer and S.M.F. Ali
JJ. legislative history plus within circumspect limits may be
consulted by courts to resolve ambiguities warning themselves
that the easy abuses of legislative history and like matrix
material may lead to the voice of occult uncertainty and
wresting or legislative power from where it belongs. While
understanding and interpreting a statute, a fortiori a

26 Ibid-21 (Para 106)

281
constitutional Code, the roots of the past, the foliage of the
present and the seeds, of the future must be within the ken of the
activist Judge. 27 While it is true that judicial interpretation
should not be imprisoned in verbalism and words lose their
thrust 28 when read in cuacao, Court must search for a reliable
scientific method of discovery rather than the speculative quest
for the spirit of the statute and the cross-thoughts from
legislator’s lips or Law Commissioner’s pens. They edify but
are edictal. As per V.R. Krishna Iyer and S.M. Fazal Ali JJ..
the highest court with constitutional authority to declare the law
cannot shrink from its obligation because the list which has
activated its jurisdiction has justly been adjusted. Moreover,
full debate at the bar must be followed by fair judicative
declaration.29

6.4. OBSERVATIONS IN FIRST JUDGES CASE

Over the past decades, recruitment to superior judiciary is

made according to the procedure prescribed in Art. 124 and 217
of the Constitution. A mounting dissatisfaction is voiced with
the method and strategy of selection and selectees to man
superior judiciary. This dissatisfaction stems from what is the
idolized view of the members of the superior judiciary and what
is available.

The controversy relating to the procedure of appointment

of judges came before the apex court for the first time in case of

27 Ibid-21 Para 81, 82

28 @page-SC2332

29 (1967) 1 AC 259. Followed. (Para 118, 121,46)

282
S.P. Gupta v. Union of India 30 popularly known as ‘First
Judges Case. This case is a unique product of Supreme Court is
a unique product of the Indian Supreme Court, dealing with
aspects of the Law of Evidence, Constitutional Law and
Executive-Judiciary relations, united in a strong political
undercurrent of a most unique variety in the Supreme Court’s
post-Emergency catharsis. Decided by a bench of seven judges,
the matter to be decided rested on several contentious issues.

1. The claim of privilege of certain correspondence between

certain Chief Justices, the Chief Justice of India and the
Law Minister.

2. The locus standi of the petitioners.

3. The circumstances of appointment and conditions of service

.and confirmation of Additional Judges, arising in the
context of Justices Vohra & Kumar of the Allahabad High
Court.

4. The circumstances of transfer of Judges, arising in the

context of Chief Justice KBN Singh of the Patna High
Court.

In the celebrated case of S.P. Gupta v. UOI,31 the Union

Law Minister issued the following circular letter to the
Governor of Punjab and to Chief Ministers except North-Eastern
States raising the questions connected with the independence of
the higher judiciary as also questions about the interpretation of
several provisions of our Constitution relation to the Union and

30 1981(Supp) SCC 87.

31 Ibid 28

283
the State Judiciary. For once, this letter produced a rare
unanimity among the various Bar Associations in India and the
circular letter was almost universally condemned. The first
petition challenging the validity of the circular letter was filed
in Bombay: Iqbal Chagla & ors v. Shivshankar and Ors,32 The
petition was admitted by a single Judge who granted an interim
stay restraining respondents 1 and 2 from further implementing
the circular letter and acting in any manner upon the consent if
any obtained from any person following on or arising from the
circular letter. 33 A division Bench dismissed the appeal;
ultimately the matter was transferred by the Supreme Court to
itself.

The second writ petition was filed by Mr. V.M. Tarkunde

and the circular letter was challenged on much the same ground
as in the Bombay petition. However, as three judges of the Delhi
High Court - Justices O.N.Vohra, S.N. Kumar and S.B. Wad
who were Addl. Judges were continued as Addl. Judges for a
period of 3 months from 7th March, 1981 the petition put in
issue the invalidity of such temporary appointments. The
various contentions in this behalf in the second petition are too
long to set out at this place, but Bhagwati J. has set them out in
his judgment.34

The thing to note is that Vohra and Wad JJ. took no part at
the hearing of the petition. But Kumar J. took an active part as a
respondent and contended that the decision not to appoint his as

32 Bombay High Ct, Writ Peeteetion 527 of 1981. Iln Sup Ct: Transferred Case 22 of 1981

33 H.M. Seervai “Constitutional Law of India”, vol. 3 4th edn. p. 2706

34 (‘82) A.SC.atPP 179-181

284
an additional judge for a further period was invalid. Justice S.N.
Kumar was appointed an Additional Judge of the Delhi High
Court for two years and the question arose whether he should be
recommended for further extension as an Additional Judge. The
then Chief Justice of India Justice Y.V. Chandrachud
recommended him for further extension. But the then Chief
Justice of the Delhi High Court Justice Prakash Narain wrote to
the Law Minister that he was not in a position to recommend
such extension for Justice Kumar. His reasons included several
complaints and also the fact that some responsible members of
the Bar and some of his colleagues had expressed doubts about
Justice Kumar’s integrity. The Chief Justice of the Delhi High
Court frankly stated that he had no investigating agency to
conclusively find out whether the complaints against Justice
Kumar were genuine or not. But he added that “all the same, the
complaints have been persistent.” The Law Minister, accepting
the views of Chief Justice of the Delhi High Court, did not give
an extension to Justice Kumar. Justice Kumar challenged this on
the following grounds that:

• The transfer was made without the consent of the judge

transferred. This meant that the majority decision on Sankal
Chand case would have to be reconsidered.

• There was no effective consultation between the President

and The Chief Justice of India with respect to the transfer.

• The transfer was not justified by being in public interest; in

fact was by way of punishment and was vitiated by
malafides.

285
 On a challenge to this decision, Justice Bhagwati
discussed the entire record of relevant correspondence between
the Law Minister and the Chief Justice of India and the Chief
Justice of the Delhi High Court and observed: “While making
his recommendations whether S.N. Kumar should be continued
as an Additional Judge or not, the Chief Justice of Delhi had to
consider the fitness and suitability of S.N. Kumar at the time
and doubts about the integrity of S.N. Kumar were expressed by
responsible members of the Bar and some of his own colleagues,
the Chief Justice of Delhi could not be said to have acted
unreasonably in declining to recommend S.N. Kumar for an
extension. It may be that on full and detailed investigation
through independent and efficient investigative machinery, the
complaints and the doubts against S.N. Kumar might have been
found to be unjustified but such a course would have been
neither practicable nor desirable.”

The contention urged on behalf of Justice Kumar was that

the question to be addressed was whether in fact the judge
possessed honesty and integrity and not whether the judge
enjoyed a good reputation for honesty and integrity. This
argument was rejected.

It was held that while arriving at his opinion on suitability

the matter was not required to be adjudicated or a quasi-judicial
or judicial inquiry to be held to find out whether the Additional
Judge was in fact lacking in honesty and integrity. It was
observed by Justice Bhagwati:

“Such an inquiry against a Judge whether additional or

permanent would not be permissible except in a proceeding for
286
his removal. What the Chief Justice of the High Court has to do
is merely to assess the suitability of the Additional Judge for
further appointment and where lack of integrity is alleged
against him, the assessment can only be on the basis of his
reputation for integrity.”35

“It is therefore not enough in order to be able to

recommend a person for appointment as a Judge to say that there
is no proof of lack of integrity against him, because, if such
were the test to be applied, there would be grave danger of
persons lacking in integrity being appointed as Judges. The test
which must be applied for the purposes of assessing the
suitability of a person for appointment as a Judge must be
whether the Chief Justice of the High Court or for the matter of
that, any other constitutional authority concerned in the
appointment, is satisfied about the integrity of the person under
consideration. The public injury which may be caused by
appointment of a Judge lacking in integrity would be infinitely
more than the public injury which may result from non­
appointment of a competent Judge possessing integrity.”36

6.4.1 No Inquiry Necessary

In sum to make an appointment no inquiry into allegations

is necessary. What is essential is that the constitutional
functionaries have to be satisfied about the appointee’s
integrity. In other words, as Justice Verma put it pithily, “The
collective wisdom of the constitutional functionaries involved in

35 S.P. Gupta v. UOI 1981(Supp) SCC 87

36 Ibid 35

287
the process of appointing superior Judges is expected to ensure
that persons of unimpeachable integrity alone are appointed to
these high offices and no doubtful persons gain entry.”

The facts of the third petition filed in the Allahabad High

Court and of the fourth petition filed in the Allahabad High
Court by Mr. S.P. Gupta, Adv are also set out in the judgment of
Bagwati J.37 . Referring to these four petitions, Bagwati J. said:

" Since these four writ petitions to which we have just

referred raise the same issues in regard to the circular letter
issued by the Law Minister and the scope and ambit of the
power of the Central Government in regard to appointment or
non-appointment of additional Judges, it would be convenient
to deal with them in a group. And we shall hereafter for the sake
of convince refer to them as the first group of writ petitions.”38

The facts and contentions in four other petitions have also

been set out by Bhagwati J. 39 Of these four petitions Bagwati J.
said:

“These last four petitions challenging the constitutional

validity of Orders of transfer of Chief Justice M.M. Ismail and
Chief Justice K.B.N. Singh raised identical issues and we would
therefore dispose them of together in one group. They may for

37 Ibid-32 pp 181-182

38 Ibid 32 p. 182

39 Ibid 32 PP. 182-184

288
the sake of convenience be referred as the second group of writ
petitions.”40

6.5. OBSERVATIONS IN SECOND JUDGES TRANSFER CASE

But this was not the end of this controversy but beginning
of the same. The Pandora’sbox was opened again by this court
in the case of S.C. Advocates-on-Record Association v. Union
of India41, popularly known as ‘Second Judges Case’. Actually,
a three Judges Bench of Supreme Court in Subhash Sharma v.
Union of India 42 took the view that a larger bench should
consider ‘the correctness of the majority view in First Judges’
Case. A nine Judge Bench was constituted to examine the
question, namely, the position of the Chief Justice of India with
reference to primacy. The conclusion on issue of appointment
may be summarized as under: 43

1. The process of appointment of judges to the Supreme Court

and the High court’s is an integrated ‘participatory
consultative process’ for selecting the best and most
suitable persons available for appointment; and all the
constitutional functionaries must perform this duty
collectively with a view to reach an agreed decision, sub
serving the constitutional purpose.

2. The proposal for appointment is initiated in case of

Supreme Court must be by the Chief Justice of India and in

40 Ibid 32 P. 184
41 (1993)4 SCC441
42 (1993) 4 SCC441
43 Ibid-52 at 449

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 the case of a High Court by the Chief Justice of that High
Court.

3. If there is conflicting opinions among the constitutional

functionaries, the opinion of the judiciary ‘symbolized by
the view of the Chief Justice of India’, has primacy.

4. No appointment of any judge to the Supreme Court or any

High court can be made unless it is in conformity with the
opinion of the Chief Justice of India.

5. Appointment to the office of the Chief Justice of India

should be of the senior most judge of the Supreme Court
considered fit to hold the office.

6. Consent of the transferred Judge/Chief Justice is not

required for either the first of any subsequent transfer from
one High Court to another. Any transfer made on the
recommendation of the Chief Justice of India is not to be
deemed to be punitive, and such transfer is not justifiable
on any ground.

7. In making all appointments and transfers, the norms

indicated must be followed. However the same do not
confer any justifiable right in any one.

8. Only limited judicial review on the grounds specified earlier

is available in matters of appointment and transfers.

9. The initial appointment of Judge can be made to a High

Court other than that for which the proposal was initiated.

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10 Fixation of Judge-strength in the High Courts is justifiable,
but only to the extent and in the manner indicated.

11. The majority opinion in S.P. Gupta v. Union of India in so

far as it takes the contrary view relating to primacy of the
role of the Chief Justice of India in matters of appointments
and transfers and the justifiability of these matters as well
as in relation to Judge-strength, does not commend itself to
us as being the correct view. The relevant provisions of the
Constitution, including the constitutional scheme must now
be construed, understood and implemented in the manner
indicated herein by us.

If we go by this observation we can say that in matter of

any conflict of opinion between executive and judiciary the
voice of executive will supersede.

In this case the court evolved new system called

‘collegiums’ for appointment of judges of Higher Judiciary44. In

44 Though the ‘collegiums’ system of appointment was evolved in Second Judge’s Case but this
system of appointment was firstly suggested by Justice P. N. Bhagwati in First Judge’s Case. In
para 30 of the
judgment Justice P. N. Bhagwati observed that the requirement of consultation under art. 124 (2) is
not
being exercised properly and the result is that the CHIEF JUSTICE OF INIDA alone is consulted in
the matter of appointment of a Supreme Court Judge and largely as a result of a healthy practice
followed through the years, the
recommendation of the CHIEF JUSTICE OF INIDA is ordinarily accepted by the Central
Government, the consequence being that in a highly important matter like the appointment of a
Supreme Court Judge, it is the decision of the CHIEF JUSTICE OF INIDA which is ordinarily, for
all practical purposes final...It is unwise to entrust power in any significant or sensitive area to a
single individual, howsoever high or important may be the office which he is occupying. There
must be, checks and controls in the exercise of every power, particularly when it is a power to make
important and crucial appointments and it must be exercisable by plurality of hands rather than be
vested in a single individual. For this very reason it is suggested that there must be a collegium to
make recommendation to the President in regard to appointment of a Supreme Court or high court
Judge, The recommending authority should be broader based and there should be consultation with
wider interests.

291
matters relating to appointments in the apex court, the opinion
given by the Chief Justice of India in the consultative process
has to be formed taking into account the views of the two-senior
most judges of the Supreme Court. The Chief Justice of India is
also expected to ascertain the views of the senior most judge of
the Supreme Court whose opinion is likely to be significant in
adjudging the suitability of the candidate, by reason of the fact
that he has come from the same High court, or otherwise. This
ensures that the opinion of the Chief Justice of India is not
merely his individual opinion, but an opinion form collectively
by a body of men at the apex level in the judiciary45. In matters
relating to appointments in the High Courts, the Chief Justice of
India is expected to take in to account the views of his
colleagues in the Supreme Court who are likely to be conversant
with affairs of the concerned High courts. The Chief Justice of
India may also ascertain the views of one or more senior most
judges of the High court whose opinion, according to the Chief
Justice of India is likely to be significant in the formation of his
opinion. The opinion of the Chief Justice of the High Court
must be formed after ascertaining the views of at least two
senior most judges of the High court.

6.5.1. In the event of Conflicting Opinions among the

Collegiums

On this point the court kept in mind the views expressed by

Justice P. N. Bhagwati that it is unwise to entrust power in any
significant or sensitive area to a single individual, howsoever

45 Ibid-52, Supra note 20 at 445. But this provision seems to be inoperative as in a latest incident
(involving elevation of Chief Justice of Karnataka High Court to the Supreme Court) the collegium
had not taken the opinion of Justice Markandey Katju and Justice A. K. Ganguly , two Supreme
Court Judges who were earlier Chief Justices of the Madras High Court and were familiar with the
affairs of Justice Dinakaran. See J. Venkatesan, ‘Collegium Defers Decision on Justice Dinakaran’,
The Hindu September 19, 2009 (Delhi Edition )

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high or important may be the office which he is occupying.
There must be, checks and controls in the exercise of every
power, particularly when it is a power to make important and
crucial appointments and it must be exercisable by plurality of
hands rather than be vested in a single individual. Therefore in
the event of conflicting opinions among the collegiums this
court suggested that following conclusions should be reached:

• Where the final opinion of the Chief Justice of India is

contrary to the opinion of the senior judges consulted by
the Chief Justice of India and the senior judges are of the
view that the recommended is unsuitable for stated
reasons, which are accepted by the President then the non
-appointment of the candidate recommended by the Chief
Justice of India would be permissible.

• Where the recommendation is for appointment to the High

court and the opinion of the Chief Justice of the High
court conflicts with that of the Chief Justice of India, the
non-appointment would be permissible46. But, if after due
consideration of the reasons disclosed to the Chief Justice
of India, that recommendation is reiterated by the Chief
Justice of India with the unanimous agreement of the
judges of the Supreme Court consulted in the matter, the
appointment can be made. It seems that the Supreme Court
has realized the importance of having judges of quality in
maintaining judiciary’s independence and in this very
case it wanted the right to appoint High court and
Supreme Court judges to be exercised by the Chief Justice

46 Ibid.-52 at 447

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 of India and senior most judges of High court and
Supreme Court and ultimately get succeeded.

At this juncture, the dissenting opinion of Ahmadi J. in

Second Judge’s Case is worth to mention here. He differs from
the majority opinion on several counts. Replying on question of
‘primacy’, he opined that primacy has two senses; first, opinion
of the Chief Justice of India being the last word binding on
other consultants; secondly, opinion of Chief Justice of India
would prevail over the views of other consul tees, if they are
differing. Justice Ahmadi argued that it would be unfair if the
opinion of the other consul tees were rendered redundant
because it does not concur with the opinion of the Chief Justice
of India. He further added that “it is one thing to say that great
weight should be attached to the opinion of the Chief Justice of
India and another thing to say that amongst the consultees his
words will be final. ” If such a view is taken the provisions of
consultation with others, mentioned in Art. 124(2) will be
rendered nugatory since under the proviso Chief Justice of India
has always to be consulted.47 Art. 217(1) is concerned that it
does not give any identification of any hierarchy among the
three consulters. These functionaries are those who are
consulted, they have a consultative role to play and the ultimate
power of appointment rest in the President, who must act in
accordance with Art.74(1) of the Constitution. The power
conferred on the President is not an absolute or arbitrary power
but the same is checked, circumscribed and conditioned by the
requirement of the prior consultation with the three
constitutional functionaries mentioned in Art.217(1). The

47 Ibid-52 Supra note 20 at 628.

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consultation must be complete, purposive and meaningful and
cannot be treated as a mere idle formality .

Justice Ahmadi has also justified the role of these three

functionaries in the process of appointment. The Chief Justice
of the High court is attributed intimate knowledge regarding the
quality of legal acumen of the members of the bar chosen by
him for appointment. He has opportunity to watch the
performance of the members of the Bar at close quarters. He is
best-suited person to assess the worth of the candidate relating
to his legal knowledge, acumen, and willingness to work hard
and his temperament to discharge judicial functions. Regarding'
the antecedents of the individual, his political affiliations, if
any, his other interests in life, his associations etc., and the
executive alone may provide the information. Similarly, the
executive would be able to collect information regarding the
honesty and integrity of the individual and certain other related
matters, which may have a bearing on his appointment. 49 Chief
Justice of India being the ‘paterfamilias’ of the judiciary would
have the advantage of the views of both these consultees who
had the benefit of filtering the views of the other two consul
tees on the question of suitability of the proposed candidate.

The expression President in Art. 124(2) and 217(1) when

read with Art. 74(1) makes the President to act on the advice of
the Council of Ministers with a Prime Minister as the head and

48 Ibid-52 at 615.
49. During a period from 1 January 1983 to 10 April 1993, 547 appointments were made to different
courts. Out of these, only 7 appointments were made contrary to the views of the CHIEF JUSTICE OF
INIDA. This shows that in the matter of appointment executive is very much compliance with the
process of consultation. Both executive and judiciary are not working at cross-purposes; in fact then-
objective is common. If the attitude of executive has been to arrive at a consensus to minimize
differences of opinion, it is in fact a healthy attitude, which need not be read as yielding to the primacy
concept.

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if we go by the interpretation given to Art. 124(2) and 217(1) in
this case by the majority the Prime Minister and the Council of
Ministers are bound to tender the advice. Such an interpretation
of the constitutional provisions would tantamount to rewriting
the Constitution under the guise of independence. Therefore,
however convincing it may sound the submission cannot be
accepted unless the Constitution is amended.

This judgment comes for severe criticism in as much as it

gives power to apex court for the final choice of appellate
judges. The power of appointments which was till then enjoyed
by the executive thus has came to be captured by the judiciary.
Indeed this ruling has been made with a view to have judges of
high integrity. But because it has been achieved by way of
edging out to execute the legitimacy of this is often questioned.

The collegiums system which is followed in the

appointment of judges to the Supreme Court and the High Courts
has recently been challenged in the Supreme Court50. The
petitioner, Rajasthan-based Suraz India Trust wants the court to
declare the system ‘ultra vires’ and ‘unconstitutional’ because
the constitution does not mention it anywhere and it has been
brought into existence through the judgments of the supreme
court. The bench, which heard the matter, referred it to the
Chief Justice of India for ‘appropriate direction’ as the petition
rose ‘complicated legal issues.’ On its part, the government has
said that the matter required ‘reconsideration.’ The trust
questioned two significant verdicts of the apex court in
Advocate on Record Association v. Union of India and

50 4th April 2011

296
Others. (1993) and Special Reference No 1 of 1998 that have
established the primacy and supremacy of the collegiums system
in the appointment of judges to the higher courts. The
collegiums — which the critics call as judges appointing
themselves — comprises four senior most judges in the supreme
court and the Chief Justice of India and three more senior most
judges in a particular High Court including its Chief Justice.

Former Delhi High court’s chief justice A P Shah, who

could not make it to the apex court, quotes Justice Ruma Pal,
formerly Supreme Court judge to say that the process by which a
judge is presently appointed to the High court or the Supreme
Court is “one of the best kept secrets in the country”. The
constitution dealing with the appointment of judges of the
Supreme Court (Art. 124) and the High Court (Art.217) says that
the President would appoint such judges in ‘consultation’ with
other judges

6.5.2 Purpose of 67th Amendment Bill served by the judgment

in Supreme Court Advocate on Record Association case

It would be evident from the several methods of

appointment to Supreme Court and High Courts suggested by the
various bodies, committees and organizations, the method and
procedure of appointment devised by the 1993 decision of the
Supreme Court in Supreme Court Advocate on Record
Association case and in the 1998 opinion rendered under Art.
143 that, the 1993 decision gives effect to the substance of the
Constitution (Sixty-Seventh Amendment) Bill, without of course
calling it a ‘National Judicial Commission’ and without the

297
necessity of amending the Constitution as suggested by the said
Amendment Bill. Indeed, it carries forward the object
underlying the Amendment Bill by making the recommendations
of the Chief Justice of India and his colleagues ‘binding’
primacy of opinion on the President. The 1998 pinion indeed
enlarges the ‘collegium’. In this sense, the purpose of the said
Amendment Bill evidenced by the proviso to Art. 124 (2) and the
Explanation appended thereto is served, speaking broadly. The
method of appointment evolved by these decisions has indeed
been hailed by several jurists and is held out as a precedent
worthy of emulation by U.K. and others.51 The said decisions
lay down the proposition that the “consultation “contemplated
by Arts. 124 and 217 should be a real and effective consultation
and that having regard to the concept of Judicial independence,
which is a basic feature of the Constitution, the opinion
rendered by the Chief Justice of India after consulting his
colleagues shall be binding upon the Executive. In this view of
the matter, much of the expectations from a National Judicial
Commission (N.J.C) have been met. The said Constitution
Amendment Bill was, it would appear, prepared after a wide and
elaborate consultation with all the political parties and other
stakeholders. However, the aspect disciplinary jurisdiction
remains unanswered.

6.6. OBSERVATION S IN THIRD JUDGES CASE

This case was mere a dictum of the verdict in Second

Judge’s Case except that it has increased the size of collegiums
by introducing two other senior most Supreme Court judges and

51 See the opinion of Lord Templeman, a member of the House of Lords, cited hereinabove.)

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made it more participatory consultative process In 1988 the
Supreme Court in a Presidential review made by the President
Under Art 143.52 The President of India referred nine questions
for consideration by the Supreme Court. These questions
related to three aspects:-

(i) Consultation between the Chief Justice of India and his

brothers judges in the matter of appointments of Supreme
Court and High Court Judges and transfer of the latter;

(ii) judicial review of transfers of Judges; and

(iii) the relevance of seniority in making appointments to the

Supreme Court

Adhered to its view that in the matter of appointment to

the Supreme Court and High Court opinion of Chief Justice of
India primacy. But the court added that Chief Justice must
consult the four senior most Judges of Supreme Court and if
none of the four Judges is to be the successor of the Chief
Justice must be made a part of the collegiums. It has also laid
down that the opinion of all members of the collegiums should
be in writing. Diluting a bit the primacy principle the Court has
stated that if the majority of the collegiums are against the
appointment of a particular person that person should not be
appointed. Thus the provisions for appointment of Judges have
been virtually rewritten by the Supreme Court. The power to
appoint is no more an executive function.

52 In Re Special reference no 1 of 1998(1998) 7 SCO 739

299
 After the Second Judges case it is the view of the majority
of the collegiums consisting the Chief Justice of India and four
senior most Judges which is the deciding factor. Primacy of
Chief Justice of India propounded in Second Judges case has
been eroded.

The procedure prescribed in Art. 124(2) is applicable to the

appointment of Chief Justice of India also. In second Judges
case the majority has clearly stated that the senior most Judge
of Supreme Court considered fit to hold office should alone be
appointed to the office of Chief Justice of India. This is no more
a matter of selection on the basis of merit. Seniority pushes
merit to the second place.

6.6.1. The significance of “consultation” provided by Articles

124 and 217

Consultation and the concept of independence of

judiciary: None of the Constitutions53 of the Commonwealth
countries or the Constitution of U.S.A not evens the Swiss and
Japanese Constitutions, provides for “consultation” with the
head of the judiciary or any other member of the judiciary in the

53 In U.K., judges of High Court and the Appeal Court (Supreme Court) are appointed by the
Crown, on the advice of the Lord Chancellor. The Lord Chancellor occupies a position peculiar to
that country, he is the head of the Judiciary, a member of the Cabinet and the Speaker of the House
of Lords. In Australia, S.72 of the Constitution of Commonwealth of Australia provides merely
that justices of the High Court (the Highest Court) shall be appointed by the Governor-General in
Council in consultation with the Attorney-General (as provided by S.6 of the High Court of
Australia Act, 1979) while judges of the State Supreme Courts are appointed by the Governors on
the advice of the government wherein the Attorney-General of the States play an important role. In
Canada, judges are appointed by the Cabinet (either federal or provincial) with a major role played
by the Minister of Justice/the Attorney-General. In Ireland, judges are appointed by the President
on the advice of the government. In Japan, by Emperor as designated by the Cabinet, in
Switzerland, judges are elected by the Federal Legislature. In USA, as is well known, the President
appoints them subject to confirmation by Senate. There is no uniformity in the procedures followed
in different countries. The procedure in each country appears to have evolved over the years having
regard to the peculiar constitutional development of each country

300
matter of appointment of Judges. Only our Constitution does -
and it could not have been without a purpose. Many of the
leading members of the Constituent Assembly were lawyers of
great repute. They knew the conditions in India - not only in
the world of law but also public life. They held eminent
positions in public life. Apart from Dr. Ambedkar, Alladi
Krishnaswami Ayyar and K.M. Munshi, the great political
leaders like Jawaharlal Nehru and Sardar Patel were also
lawyers. The question arises why did they depart from other
countries and provided this innovative procedure, when even the
Government of India Act 1935 54 did not provide for such
consultation? There can be no explanation for this innovation
except that they were anxious to and concerned seriously with
the concept of independence of judiciary. This provision is
attributable to their conviction that at our stage of development
and having regard to the propensities of the Executive to control
every organ of State and every institution of governance they
cannot be vested with the sole power of appointment to
judiciary, a co-equal wing of government. True it is that the
draft prepared by Sir B.N. Rao sought to import the U.S. model
but there was practically no support for this model. The
requirement of consultation with not only the Chief Justice of
India but with certain other Judges at the Supreme Court and
High Court level in Art. 124 is an added indication of the
concern the founding fathers had with the independence of the
judiciary. They had before them the U.K., Australian,
Canadian, Irish and other Constitutions which did not provide
for any such consultation with the head of Judiciary either at
federal or provincial level - much less with other judges, but
yet chose this particular formulation. Evidently, they did not
trust the Executive in India to make proper appointments and
54 sec220 (2) concerning the appointment of Judges of High Courts

301
hence ‘entrenched’ the requirement of ‘consultation’ in the
Constitution itself expressly. It is, therefore, perfectly
consistent with the Constitution, for the Supreme Court to say,
in its 1993 and 1998 decisions referred to herein before, that the
Chief Justice of India occupies a pre-eminent position and that
the “consultation” contemplated by the said Articles should be a
real and full consultation and further that since the Judges
would be in a better position to judge the competence and
character of the prospective candidates, their opinion should
prevail in the matter of appointment. Indeed, as pointed out
herein after, this is also the policy adopted by the Constitution
with respect to the appointment of members of the subordinate
judiciary. They are selected by the High Court; only the formal
orders of appointment are issued by the Governor/ Government.

The Constitution confers upon the President several

powers - as distinguished from the executive power of the
Union which is carried on in the name of the President. Art 74
says that “in exercise of his functions” the President shall “act
in accordance with such advice” i.e. advice tendered to him by
the Council of Ministers with the Prime Minister at its head.
Even after its amendment by the Constitution (Forty-second
Amendment) Act 1976 the said requirement to “act in
accordance with” the advice is not all pervading. There are
certain areas where the President can act without or even
contrary to such advice. For example when the President has to
choose a Prime Minister after a general election or whenever
such an occasion arises, the President has to act in his own
discretion; the advice of the Union Council of Ministers with
the Prime Minister at its head has and can have no application to
such a situation; indeed he cannot act in this matter on the
advice of the outgoing Council of Ministers. Similarly where a

302
Prime Minister suffers a no-confidence motion and thereupon
advises the President to dissolve the House, the President is not
bound by such advice. If the President finds that a viable
alternative government can be formed, he is entitled to reject
the advice of the Prime Minister refuse to dissolve the House
and swear in the alternative Prime Minister/Council of
Ministers. It is thus clear that the requirement of acting on the
advice of the Council of Ministers with the Prime Minister at its
head cannot be said to admit no exceptions. It is the general
rule but there can be exceptions. Art.124 and 217 it is
submitted constitute yet another exception to the ‘requirement’
in Art.74 both because of the express language employed therein
and also because of the concept of judicial independence which
must necessarily be implied therein. It is. well established that
the over-arching concept of judicial independence calls for an
interpretation of the Constitution consistent with the said
concept. In Chief Justice of A. P. Vs. L.V.Deekshitulu55 56 the
Supreme Court held that “every judge of the Supreme Court
shall be appointed by the President after consultation with such

55 (A.I.R 1979 SC 193)

56 The facts and the ratio of this case are highly relevant and instructive. The President of India had
constituted an Administrative Tribunal for Andhra Pradesh to adjudicate upon the service disputes
of employees of the State. The Tribunal was vested with exclusive jurisdiction with respect to
appointment, promotion and all other service conditions of persons holding “posts in the Civil
Services of the State” among others. The question was whether employees of High Court are not
persons holding “posts in the Civil Services of the State”. The Court held that though in its
ordinary connotation, the employees of the High Court and members of subordinate judiciary can
be said to hold “posts in the Civil Services of the State”, the other provisions of the Constitution
concerning judiciary and the underlying concept of judicial independence must lead us to construe
those words narrowly so as to exclude the employees of the High Court, members of the
subordinate judiciary and employees in various courts under the control of the High Court. The
Constitution Bench speaking through Sarkaria J. referred to Arts 229 to 235 and to the provisions in
Chapters V and VI of the Constitution and held that the expression “Civil Services of the State” in
Art 371 - D should be construed and understood in the light of the said Articles and the underlying
scheme of the said Chapters. In this connection, the Constitution Bench quoted an earlier judgment
of the Court saying that “while interpreting words in a solemn document like the Constitution, one
must look at them not in a school-masterly fashion, not with the cold eye of the lexicographer but
with the realization that they occur in ‘a single, complex instrument in which one part may throw
light on the other’ so that the Constitution must hold a balance between all its parts”. The court
concluded by saying “In sum, the entire scheme of Chapters V and VI in Part VI epitomized in Arts
229 and 235 has been assiduously designed by the Founding fathers to ensure independence of the
High Court and the subordinate judiciary”. (Para 42)

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of the judges of the Supreme Court and of the High Courts in
the States as the President may deem necessary for the purpose”
the Chief Justice of India has necessarily to be consulted in case
of appointment of a judge. Art.217 is similar, with the
difference that the consultation is with the Chief Justice of
India, the Governor of the State and the Chief Justice of the
High Court. If it is a case of appointment of the Chief Justice
of the High Court the consultation with the Chief Justice of the
High Court is not necessary. If one reads Art. 124/217 in the
light of the principle of independence of judiciary which is a
basic feature of the Constitution and the concern with which is
more than evident from the several provisions of the
Constitution, giving full effect to the language used therein, it
would follow that Art.74 has no application to Arts.124 and 217
and that under these articles, the President has to act in
consultation with the authorities named in those articles alone.
If the independence of judiciary is a basic feature of the
Constitution, as held in several decisions of the Supreme Court
including Supreme Court Advocate on Record Association case,
it follows by necessary implication that Arts.124 and 217 must
be read consistent with the said concept i.e. so as to exclude
executive influence there from. Art. 124 and 217 must be read
as exhaustive on the subject. In other words, in the matter of
appointment of judges of the Supreme Court and High Courts,
the President has to act in consultation with only the authorities
named in the said articles. The context excludes application of
Art.74. It may also be a case of special Art.124 and 217
excluding the general Art.74. L.V.Deekshitulu’s case is an
authority for the proposition that literal interpretation has to be
discarded if such interpretation has the effect of eroding the
concept of judicial independence. The ill-effects of political
domination in the appointment of judges has been amply and

304
poignantly illustrated by the recent decisions of the U.S.
Supreme Court and the Florida Supreme Court in the disputes
relating to counting of votes and other alleged irregularities in
the conduct of elections to the office of the President of U.S.A.
Let us avoid political influence altogether in the matter of
appointment of judges of Supreme Court and High Courts.

This aspect has to be borne in mind in any discussion

concerning the appointment of Judges of the High Courts and
the Supreme Court. The principles laid down by the Supreme
Court can be summarized as follows:-

1. Consultation with the Chief Justice of India does not mean

consultation only with the Chief Justice. It requires
consultation with a plurality of judges.

2. The Chief Justice of India has to form collegiums of four

senior most puisne judges of the Supreme Court. This is
necessary for appointments for judges of the Supreme Court
or to transfer a High Court Chief Justice or a High Court
judge.

3. For appointment of the High Court judges, the Chief Justice

has to consult two senior most judges of the Supreme Court.
These collegiums can also take into account the views of a
Supreme Court judge from the particular High Court to which
appointments are to be made. For example, if appointment is
to be made to the Madras High Court, collegiums of the three
judges can consult the senior-most judge of the Supreme
Court from the Madras High Court. This will be necessary if

305
 he is-not a part of the Collegiums. They can also take into
account the views of other Supreme Court judges or Chief
Justices of the High Courts. This is to ensure that the best
possible talent is brought to the Supreme Court Bench.

4. Until 1998 the collegiums consisted of the Chief Justice of

India and two senior-most judges. Thereafter it was
changed to the Chief Justice and four Judges of the
Supreme Court.

5. The opinion of the collegiums will have primacy in the

matter of appointments. It is open to the Executive to
inform the collegiums of its objections. However, if the
Chief Justice and his companion judges are still of the
view that there is no reason to withdraw their
recommendation, then that appointment should be made as
a matter of healthy convention. However, even if two
judges have serious reservations about a particular
appointment, then it should not be made.

6. The Supreme Court can also consult other judges of the

Supreme Court, judges of the High Court or even the
Members of the Bar with regard to a particular
appointment. The views of the members of the collegiums
should be made in writing and should be forwarded to
Government of India along with recommendations of the
Chief Justice. However, when the Chief Justice consults
other Supreme Court Judges or members of the Bar. these
views should be summarized in a memorandum and
forwarded to the Government of India.

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7. If some members of the collegiums have retired before a
particular appointment is made and the Government of
India has sent back adverse comments, then the Chief
Justice has to constitute new collegiums by adding the
requisite new judges to form the collegiums. In such an
event there has to be unanimity in the appointment that is
to be made.

8. The Chief Justice may in his discretion, inform the person

of the objections raised by the Government of India. The
collegiums can call for the reply of the prospective
appointee and take into account his explanation before
either withdrawing the nomination or confirming it.

9. Merit is the predominant consideration for appointment to

the Supreme Court but seniority should be kept in mind.
The Supreme Court has held that seniority can be
overlooked in cases of outstanding merit.

10. The collegiums for approving the appointments of High

Court judges are the Chief Justice and two senior-most
puisne judges of the Supreme Court.

11. The Chief Justice should take into account the views of
the Supreme Court Judges who are likely to be conversant
or familiar with the affairs of the concerned High Court.
They must also take into account the opinion of the Chief
Justice of the particular High Court; this is entitled to the
greatest weight.

307
6.7 DIFFERENT VIEWS OF SUPREME COURT JUDGES
ON JUDICIAL APPOINTMENTS

6.7.1 Justice Bagwati’s views 57

The judiciary is one such institution on which rests the

noble edifice of democracy and the rule of law. It is to the
judiciary that is entrusted the task of keeping every organ of the
State within the limits of power conferred upon it by the
Constitution and the laws and thereby, making the rule of law
meaningful and effective. Most countries have a written
constitution which provides the structure allocating and
regulating power relations amongst the different organs of the
State. The Constitution confers power on the various organs of
the State and also lays down the limits within which such power
may be exercised.

“It is important that these judges should be not only first-

rate but should be acknowledged to be first-rate in the country
and of the highest integrity - if necessary, people who can stand
up against the executive and whoever may come in their way."58

The power of appointment of judges to the superior courts

is also a large power; and to my mind, at least in Third World
countries, vesting it exclusively in the executive is likely to
undermine the independence of the judiciary. It is of course true

57 keynote address by India’s former Chief Justice P. N. Bhagwathie entitled "Democracy and the
Rule of Law" that was presented at the seminar Provisions in the Draft Constitution and
Independence of the Judiciary that was organized by the Vigil Lanka Movment and the Asian Legal
Resource Centre [ALRC] in Colombo, Sri Lanka, from 10 to 11 May 1997.]
58 Pandit Nehru, while speaking about the judges of the Supreme Court in the Constituent Assembly
which framed the Indian Constitution, observed

308
that in most of the democratic, countries this power is given to
the executive because the executive is accountable for its
actions to the people through Parliament.

But in effect and substance, this accountability has ceased

to exist because in many countries, instead of the legislative
controlling the executive, it is the executive which controls the
legislative and the legislative check has disappeared. Moreover,
accountability can be "enforced" through discussion only after
the appointment is made and it is a facit accompli.

Furthermore if the power of appointment is vested solely

in the hands of the executive, it is not unlikely that those
aspiring for judicial
« appointments might lobby with the
executive with a view to seeking favor of judicial appointment.
If they are so favored by appointment on the bench, they would
then carry with them a sense of obligation to the executive and
unconsciously, if not deliberately, be inclined to support the
executive in the adjudicatory process. The position would be the
same where the power of giving promotion is vested exclusively
in the executive; for in that event, the judge seeking promotion
may be predisposed in favor of the executive which has the
power to promote him. Of course, instances are not unknown
where judges appointed by the executive have shown themselves
to be made of sterner stuff and have not hesitated to decide a
case against the executive.

But with ordinary mortals who the majority of judges are,

the possibility cannot be ruled out that they may be subtly
influenced in favor of the executive where there is a dispute
between the citizen and the State. Public confidence in the
309
independence and impartiality of the judiciary would then be
impaired. It is also possible that political considerations may
influence the decision to appoint or promote a particular
candidate as a judge and in the process the best person may not
get selected thus affecting the quality of the judiciary.

We in India have therefore tried to qualify the power of

the executive to appoint a judge by making it mandatory for the
government to consult the chief justice of India in the matter of
appointment of judges of the Supreme Court, the chief justice of
the High Court and the chief justice of India in the matter of
appointment of High Court judges. It is of course, consultation
and not concurrence but the Supreme Court of India has held
that consultation must be effective consultation where all
relevant facts are disclosed and reasons discussed. Even this
requirement of consultation, however, has unfortunately not
proved effective.

It is true that the executive has - so far - not made a single

appointment which is not approved by the chief justice of India,
but there have been instances where persons recommended by
the chief justice of India have not been appointed judges - his
recommendations having been turned down. Some lawyers and
jurists take the view that the recommendations made by the
chief justice of India must be binding on the government which
would mean that the power of appointment would be effectively
vested in the chief justice of India. However this view was
disagreed. In the first place, there is no country in the world
where the chief justice has been given the power to appoint
superior court judges. Secondly, the chief justice is not elected
himself, and therefore, he does not represent the people and is

310
not accountable to them. Thirdly, no such power should be
vested exclusively in one individual howsoever high he may be.

Power can be misused or abused by anyone, whether he or

she be the president or the prime minister or the chief justice,
but even the procedure adopted in India of vesting the power of
appointment in government, to be exercised in consultation with
the chief justice of India, has not worked well and it has failed
to eliminate political interference in appointments. The power
of appointment therefore, must be vested in a Judicial Service
Commission composed of judges, lawyers and law academics of
eminence presided over by the chief justice where the executive
should also have representation and this Judicial Service
Commission should recommend a name which must be accepted
by the government. That alone would ensure the appointment of
persons with ability and integrity and eschew political
interference.

6.7.2. V.R. Krishna Iyer Views 59

Craft must have clothes, but truth loves to go naked. 60

Every authentic democracy is run by a hallowed trinity of high
instrumentalities with constitutional credentials. Each is
circumscribed by its limited supremacy but seeks happy
institutional harmony and operational discipline. The judiciary
corrects the executive when it is in error or commits excesses or
arbitrariness, without fear or favor. The legislature enjoys the
law-making function and has a national inquest obligation, but

59 “Case for a council to choose judges” V.R. Krishna Iyer, Front Line Volume 26, issue 3 Jan31-
Febl3 2009.
60 Thomas Fuller

311
when it acts beyond the constitutional contours or restraints, the
courts have the authority to control or quash: the ultimate test is
the mandate of the suprema lex. Subject to this judicial check,
the House is sovereign.

The Indian nation has the perennial genius to rise to the

occasion whenever it is confronted with a seemingly inscrutable
dilemma. India expects its noble holders of high office to rise
and resolve every national crisis. Prime Minister Manmohan
Singh and Chief Justice K.G. Balakrishnan are placed in a
historic context. The problem is not personal but national. Your
stature is too high to be a caricature to let the nation down over
a power struggle and institutional rivalries. We shall overcome,
because India, that is Bharat, is too majestic to surrender before
vanities and futilities. Our vision and mission as a nation are
supreme.

The Constitution in the wisdom of its founding fathers has

vested in the President of India the power to appoint judges of
the High Courts and the Supreme Court. The President is
governed by the long-standing conventions of Westminster
vested in the Council of Ministers.61 Judges should certainly be
free from executive pressure or pleasure or the temptation to
amass a treasure by resort to any .social or economic measure to
win the goodwill of the proprietary or the theological high
priests. Their social philosophy and economic ideology may
sharply vary from the Preamble to the Constitution. Allergy to
socialism, affection for communalism, attachment to causes of
legality and democracy and suchlike values vary from judge to

61 (vide Shamsher Singh case) .

312
judge. Bui most of them have a class consciousness which
unwittingly affects their interpretation of laws and
understanding of facts.

Independence and impartiality have serious

limitations vis-a-vis the higher judiciary. Winston Churchill
once said in Parliament: “Where class issues are involved, it is
impossible to pretend that the courts command the same degree
of general confidence. On the contrary, they do not and a very
large number of our population has been led to the opinion that
they are unconsciously no doubt biased.62

Judges have large powers and must therefore be

accountable as trustees to the people in the discharge of their
duties. Even their appointment must have a democratic
dimension. It is worth recalling an old Roman adage: “Whatever
touches us all should be decided by all.

6.7.3. K.G Balakrishnan views on Collegium System63

The Chief Justice of India K G Balakrishnan has spoken

out on the contentious collegiums system of appointment of
judges. A helpless Chief Justice of India has confessed that he
was unable to make changes to the much debated collegiums
system of appointment of judges in India. In an interview to The
Hindu newspaper64 , Justice Balakrishnan also says he leaves the
decision to his successor.

62 Professor J.A.G. Griffith, in his book The Politics ofthe Judiciary

63 http://beta.thehindu.com/news/national/Art425327.ece?homepage=true
64 The Hindu May 11*2010

313
 The Chief Justice of India says it's not possible to change
the collegiums system of appointment of judges without
reviewing two key Supreme Court judgments. The Supreme
Court judgments of 1993 that created the collegiums system and
the 1998 Presidential reference on the matter need to be
reviewed first. He says the Centre must seek review of these
relevant judgments.

Earlier the Centre had suggested changes in the

Memorandum of Procedure of appointment of judges to give
greater say to the executive in the appointments and to ensure
more transparency.

The collegiums system consisting of a panel of judges,

headed by the Chief Justice of India, selects judges. The system
has been in place for over a decade and has often been criticized
for being a closed system in which the judiciary selects its own
judges. It was initially created to react to replace nepotism and
arbitrariness in the system in which judges were appointed by
the executive. K.G.Balakrishnan asserts that the collegiums
headed by him are strictly following the decision in the Second
Judges case by which they are bound.

The general perception voiced eloquently by the executive'

is that the executive has no part in making these appointments
for which the judicial collegium alone is responsible and
answerable. In this manner the judiciary is held responsible for
the aberrations in these appointments in the recent years. It is
true that the veto power granted.

314
6.7.4. Justice Kuldeep Singh Views

Former Supreme Court Judge Kuldeep Singh stressed the

need for appointment of the Chief Justice of India through a
transparent selection process instead of the present policy of
having the senior most judges occupying the post. He called for
enforcing strict transparency and accountability in the
appointment and elevation of judges and functioning of the
collegiums system to eradicate corruption in the judiciary. “The
appointment of the Chief Justice of India who is considered to
be the most powerful person in the country should be the most
powerful person in the country should be strictly by a pure and
simple process of selection and not seniority”. Recalling his
experience as a judge of the Apex Court, Justice Singh said that
about eight senior most judges of the Supreme Court were
elevated as Chief Justices of India despite facing charges.

Justice Singh also said that in one instance when he was

also a part of the then collegiums; a particular judge of the
Kerala High Court was elevated as Chief Justice of the High
Court without his knowledge. It was something which should not
have been done. He said nobody known today why a particular
judge is transferred or elevated and also said that transparency
is very is very important injudicial appointments.

6.7.5. Justice Verma Views65

It is true that the veto granted to the executive by the

First Judge’s case66 is taken away by the Second Judge’s case67

65 Judicial Independence is it threatened?” S.Govind Swaminadhan Memorial Lecture at the

Madras High Court Bar in Chennai on 29January 2010
66 AIR 1994 SC 268

67 AIR 1994 SC 268

315
is taken away by the Second’s Judge’s case but it is not correct
that the executive has been denuded of all power in adjudging
the suitability of the candidates for appointment. However,
greater responsibility lies in the judicial collegiums because of
its role under the existing system. A brief reference to the
Second Judge’s case is necessary. In his separate opinion he had
also emphasized the need for strict scrutiny at the entry point
that will avoid the need for later removal of a bad appointment.
He said that “The collective wisdom of the constitutional
functionaries involved in the process of appointing a superior
judge is expected to ensure that persons of unimpeachable
integrity alone are appointed to these high offices and no
doubtful person gains entry even if sometime a good
appointment does not go through. This is not difficult to
achieve ”.

If the opinion of the collegiums is not unanimous then the

executive has the option not to appoint. If the executive, in spite
of judgment and authority, chose not to act who is to blame?
The collegiums is now to consist of the Chief Justice of India
and four instead of two senior most judges of the court in the
appointment of a High Court Judge, the Supreme Court Judge
acquainted with that particular High Court should also be
consulted raising the number to six. The increased size of the
group that has to be a part of the consultation process with
several interests being involved has made the consultation
process cumbersome and delays in filling up of vacancies is
bound to arise. The presidential Reference also provides that
every communication with the consultee has to be in writing and
the views should be communicated to the Government. There is

316
no indication as to what happens if there is no consensus among
the consulters or if the majority disagrees with the Chief Justice
of India. S.P. Gupta has laid down that the entire
correspondence and communication between various authorities
are open to public scrutiny. 68

6.7.6 Justice Lakshman Views

Hon’ble Justice M.Lakshman former Chief Justice of

Supreme Court made the following observation in regard to
issue of appointment to judiciary. Ever since the Supreme Court
wrested from the executive primacy in the matter of the
appointment and transfer of Judges in the Advocates-on-Record
case in 1993, the political class has unwittingly conceded more
ground to the judiciary that is required under the Constitution.
As a result, for instance, the executive and the legislature have
been unable to ensure that the members of weaker sections - the
Scheduled Castes and Scheduled Tribes and women get
meaningful representation in the judiciary.

It is not as if the shrinking social base of judiciary had not

caused concern earlier in the Advocates-On-Record case, Justice
S.R. Pandiyan while concurring with the majority opinion that
the Chief Justice of India in consultation with his senior
colleagues should have the decisive influence over judicial
appointments, added that it was necessary to make judicial
appointments as broad-based a process as possible. Justice
Pandian’s estimate valid even today was that less than 4 percent

68 since the entire record was summoned, perused and made public in that case

317
of Judges in the higher judiciary was from among the S.C. and
S.T sections and that less than 3 percent were women.

In his ruling Justice Pandian outlined the contours of

interaction between the executive and the judiciary in order to
achieve the requisite social justice: “There is every justification
for the government to forward lists of candidates belonging to
diverse sections of the people to the Chief Justice concerned
who ahs to ultimately scrutinize the list and take his decision on
the merit of the candidates without giving room for any
criticism that the selection was whimsical, fanciful or arbitrary
to tainted with any prejudice or bias”.

6.8. CRITICAL APPRAISAL ON THE VIEWS OF THE

SUPREME COURT

"The process of appointment of judges to the Supreme

Court and the High Courts is an integrated participatory
consultative process for selecting the best and most suitable
persons available for appointment; and all the constitutional
functionaries must perform this duty collectively with a view
primarily to reaching an agreed decision, sub serving the
constitutional purpose so that the occasion of primacy does not
arise."69

The 1993 majority judgment in its summary says: "In

exceptional cases alone for stated strong cogent reasons

69 From the majority judgment in Supreme Court Advocates-On-Record Association v. Union of

India and Others (1993).

318
disclosed to the Chief Justice of India, indicating that the
recommended is not suitable for appointment, that appointment
recommended by the Chief Justice of India may not be made.
However, if the stated reasons are not accepted by the Chief
Justice of India and the other judges of the Supreme Court who
have been consulted in the matter, on reiteration of the
recommendation by the Chief Justice of India, the appointment
should be made as a healthy convention."

Indian legal system has adopted various principles and

doctrines from the English and the American justice
administration systems. It shall be immensely beneficial to the
society, to the system and to the future of the nation, if the
Indian system incorporates the spirit of these systems with
regard to the appointment of judges to the Apex Court. The real
question now is whether independence of judiciary or
preservation of democracy more important, as an absolutely
independent judiciary is a potential tyrant and vesting the power
of appointment of judges with the judges themselves is an
evident stride towards it. The Law Commission of India 70 has
stated that the Judges Cases I,II,III has virtually re-written the
Constitutional provisions relating to the appointment of Judges
to the Higher Judiciary and have suggested a reconsideration of
these cases.71 At this juncture, it is interesting to note that
though some parts of the judgment of judges’ transfer cases are
strictly adhered to, some parts are completely ignored and
forgotten. Justice J.S.Verma who wrote the majority judgment in
the Second Judges case has said that his judgment was very

70 In its 124th Report

71 Proposal for Reconsideration of Judges cases I, II and III - S. P. Gupta Vs UOI reported in AER.
1982 SC 149, Supreme Court Advocates-on- Record Association Vs UOI reported in 1993 (4) SCC
441 and Special Referece 1 of 1998 reported in 1998 (7) SCC 739, Report No:124-Nov 2008, Law
Commission of India, Government of India

319
much misunderstood and misused. Justice has stated that the
appointment process as laid down in majority judgment
envisaged a joint venture of both the executive and the
judiciary.72

The present position as the Supreme Court alone being the

supreme mechanism for the appointment of Judges to the Higher
Judiciary is no longer acceptable. A proposal for the
constitution of a National Judicial Commission and making the
appointment of Supreme Court and High Court Judges on its
recommendations and another proposal for amendment of
Art.124 and 217 to facilitate the creation of National Judicial
Commission was made in 1990 but was not materialized due to
political catapult. 73 The Constitution Amendment Bill 2001
proposed inserting Chapter III A after Chapter III in Part 5,
constituting the provisions for the creation and functioning of a
National Judicial Commission.74 The proposed proviso to Art.
124(2) of the Constitution also contemplated the situation of
non-acceptance of the recommendation of the National Judicial
Commission. 75 A National Judicial Commission Bill was
submitted before the Parliament in 2004 which though flawed is
the need of the hour. Independent machinery consisting of
distinguished members from the executive, for instance, the
Attorney General and the judiciary should be constituted for the
appointment of the Judges thus keeping intact the separation of
powers and independence of judiciary.

72 Honesty Matters, V. Venkatesan, Frontline, vol 25, Issue 20, Sep27-Oct 10 2008
73 Constitution (Sixty Seventh) Amendment Bill 1990
74 Constitution Amendment Bill 2001
75 H.M. Seervai, Constitutional Law of India, vol.3, edn.4, P.2929, para 25.451

320
 Under the Constitution the President may transfer a High
Court judge after consulting the Chief Justice of India.
Realizing that the executive could misuse the power of transfer,
the Supreme Court interpreted ‘consultation’ in Art.222(1) as
‘full and effective consultation’, declared that transfer could be
initiated only by the Chief Justice of India and stated that any
departure from the opinion of the Chief Justice would have to be
based on cogent reasons.76 The present position is that the Chief
Justice of India must consult a number of senior judges and this
opinion must be considered by the collegiums, as proposed in
the Third Judges Case. If this procedure is not followed then the
opinion will not bind the government. 77

It is unfortunate that certain noteworthy suggestion, for

instance, appointment of Judges to the Higher Judiciary within
one month from the date on which the vacancy arises and
several other exemplary suggestions and observations of the
judiciary are long lost and forgotten. The judic-iary had been
trying also to release itself from the shackles of whatever
limited control that was being exercised by the executive on the
judiciary by the means of interpretation of Constitutional
provisions in a manner that has altered the spirit of the
provision, probably unintended in their favor. It was perhaps the
most clinical abuse of power by the executive and the
legislature through mechanisms of judicial review and the kind,
nut “Quis custodiet ipsos custodies”.

Recently on April 4th 2011 the Central government asked

the Supreme Court to reconsider the system of appointment of

76 Union of India v. Sankalchand Himatlal Sheth AIR 1977 SC 2279

77 Ibid-86 Supra note 62 at 21

321
judges to higher judiciary as the existing collegiums procedure
has not delivered on expectations. The apex court bench of
Justice Deepak Verrna and Justice B.S. Chauhan referred the
matter to Chief Justice S H Kapadia to place the central
government's plea before an appropriate bench for
consideration. Attorney General G Vahanvati told the court that
though the central government was contemplating a
comprehensive law to deal with judicial appointments, it may
take time as it involved amending the constitution. He asked the
court to revisit its 1993 judgment on the appointment of judges.

The Supreme Court had taken away all the powers of the
government in judicial appointment and placed these with
collegiums, a panel of five senior-most judges of the apex court
including the chief justice and four other judges which decides
on the judicial appointments in the apex and High courts. The
court referred the matter to Chief Justice Kapadia after
considering the report of senior counsel A.K. Ganguly, who was
earlier appointed as amicus curiae, friend of court in the case.
The matter was raised in public interest litigation by Suraz India
Trust.

Gauguly in his 12-page report to the court said that the

1993 decision of the court "needs to be reconsidered as the
procedure adopted for the appointment of judges therein is
unworkable under the democratic set up in this country and is.
contrary to the constitutional foundations of democracy,
separation of powers and checks and balances." The report said
that the "supremacy of the chief justice as interpreted in the
Second Judges Case (1993) has also come to be perceived as
encouraging lack of accountability in the entire system".

322
 The amicus curiae referred to a report. Law's Delays:
Arrears in Court" which said that the existing system of judicial
appointment in higher judiciary has created an anomaly as the
executive had no responsibility in filling up vacancies in the
court and the entire responsibility was on the eollegiums of the
Supreme court.

"The union law minister is accountable to parliament for

delays in filling up vacancies of judges but he has functionally
no contribution to make," the report said. Ganguly said that "the
decision of this court was a result of the perception of the
judiciary that it required to be insulated from the interference
from the executive". He said that the "working of the system
shows that independence can be secured through other
measures".

Even as the Supreme Court indicated the need for

revisiting the 1993 judgment providing for eollegiums system of
judicial appointments, it is relevant to take note of the Law
Commissions recommendations, made in 2008 suggesting a
review of the verdict. The previous Commission, during the
tenure of Justice A.R. Lakshmanan, in its 214th report,
suggested an equal role for the judiciary and the Executive in
the selection and appointments to High Courts and the Supreme
Court.

The Commission, after analyzing the appointments made

over 15 years from 1993 to 2008 suggested that the three
Supreme Court judgments of 1982, 1993 and 1998 be

323
reconsidered to bring about clarity and consistency in
appointments. The report, analyzing the position in various
countries, said: “In all other Constitutions either the Executive
is the sole authority to appoint judges or the Executive appoints
judges in consultation with the Chief Justice of the country.
The Indian Constitution has followed the latter method.
However, the ‘second judges case — Advocates on Record
Association vs. the Union of India — of 1993 has completely
eliminated and excluded the Executive and the opinion of the
Supreme Court in the presidential reference of 1998 has
reaffirmed this view with slight modifications.”

The recommendation for urgent and immediate review of

the present procedure of appointment of judges was reinforced
by Justice J. S. Verma, former Chief Justice of India, who had
written the lead judgment in the 1993 case, himself in an
interview to Frontline 78 Justice Verma said: “My 1993
judgment, which holds the field, was very much misunderstood
and misused. It was in that context I said the working of the
judgment now for some time is raising serious questions, which
cannot be called unreasonable. Therefore, some kind of rethink
is required.” Quoting this interview, the Commission, said: “The
Indian Constitution provides a beautiful system of checks and
balances under Ajrts.124 (2) and 217 (1) for the appointment of
judges of the Supreme Court and the High Court’s where both
the Executive and the Judiciary have been given a balanced role.
It is time the original balance of power is restored.

78 October 10,2008 issue

324
 In every High Court, the Chief Justice “is from outside the
State as per the policy of the government. The senior most
judges who form the collegiums are also from outside the State.
The resultant position is that the judges constituting the
collegiums are not conversant with the names and antecedents of
the candidates and more often than not, appointments suffer
from lack of adequate informationj” the Commission pointed
out.

6.8.1. Two alternatives

Therefore, “two alternatives are available to the

government. One is to seek a reconsideration of the three
judgments before the Supreme Court. Otherwise, a law may be
passed restoring the primacy of the CHIEF JUSTICE OF INIDA
and the power of the Executive to make the
appointments.’’Restoring the balance between the Judiciary and
the Executive would improve the quality of selection and
appointments, the report said.

• First, the Constitution makers did not want the appointment

of Judges to be made exclusively by the executive79.

• Second, doubts were expressed from the very beginning

whether the formula for the appointment of Judges adopted
in the Constitution will serve the purpose of establishing
and maintaining an independent and competent judiciary
which undoubtedly was one of the foremost objectives of
the Constitution makers'

79 See the history of the constitutional provisions in Austin, above, No. 6, p. 164ff. and Shiva Rao,
above, No. 6, p. 480ff. and the speech of Dr. Ambedkar in the Constituent Assembly made on 24-5-
1949, CAD, vol. Vm, 258.

325
 ® Third, these doubts were confirmed with respect to the High
Court’s even before the commencement of the Constitution
and soon after the commencement of the Constitution even
with respect to the Supreme Court. 80

• Fourth, though the Constitution makers intended effective

involvement of the Judges, particularly of the Chief Justice
of India and the Chief Justices of the High Courts, in the
appointment of Judges, they denied the Chief Justice of
India the last word in the matter.
* Fifth, the Constitution makers did not agree to make the
appointment of Judges subject to either the
recommendations of any panel or approval of the
legislature.
Sixth, the Constitution makers sincerely believed that for
the purpose of an independent and competent judiciary they
could not do better than what they had provided in the
Constitution for the appointment of Judges, that the
provisions were the best possible and most suitable for
India and that the high constitutional functionaries involved
in the process will discharge their constitutional obligation
with full responsibility.81
* Seventh, time and experience has proved that the
Constitution makers were not completely wrong in their
estimation and that subject to occasional aberrations the
provisions have worked as intended and expected.82
• Eighth, the experience of giving primacy to the executive in
the matter of appointment of Judges after the Judges Case
had within a short period of less than a decade proved that
the interpretation of the provisions in that case had gone

80 B. Shiva Rao, The Framing ofIndia's Constitution: A study, vol. IV at 193ff.; Law Commission
of India, Fourteenth Report, 33ff. and 69ff. (1958) and Eightieth Report, 18 (1979)
46. The speech of Dr Rajendra Prasad, President of the Constituent Assembly, on 26-11-1949
preceding the motion to adopt the Constitution, CAD, vol. XI, 498
82 For the aberrations see Seervai, above, No. 8,2484£f. (4th Edn., 1991-96)

326
 against the expectations of the Constitution makers of
providing an independent and competent judiciary.83
• Ninth, until the Judges Case, which gave primacy to the
executive in the matter of appointments, even though
difficulties were faced in the appointment of Judges, the
idea of a judicial appointments commission or other similar
body outside the scheme already laid down in the
Constitution was not seriously entertained at any level.84
• Tenth, the Constitution provides for a consultative process
among several constitutional functionaries and reasonably
expects a consensual decision.
Eleventh, practice of consultation by the Chief Justice of
India and the Chief Justices of the High Court’s with their
colleagues before making their recommendation for
appointment was prevalent and specifically recommended
by the Law Commission to be observed as a rule.85
• Finally, no clear consensus has either been sought, or has
emerged or is in sight so far on the creation of an
alternative arrangement for the appointment of the Judges
replacing the one already provided in the Constitution.86 We
must remember that the entire Constitution is the product of
consensus which has been hailed as a great achievement of

83 Although the Judges Case was decided on 30-12-1980 and was overruled by the Second Judges
Case on 6-10-1993, according to an affidavit from the Government in the latter case seven
appointments were made against the opinion of the Chief Justice between 1983 and 1991 - five in
1983, one in 1985 and one in 1991
84 For example, the Law Commission in its Eightieth Report{\919) examined the issue in detail in
the background of emergency and supersession of Judges, it did not suggest any change in the
existing provisions. The idea of judicial appointments commission was entertained in the Judges
Case and was later recommended by the Law Commission in its One Hundred Twenty-first
Report (1987). Also see, Surya Deva, Procedure for the Appointment of Judges of Higher Judiciary:
A Theoretical Perspective (LL.M. Dissertation, University of Delhi, 1998).
85 Law Commission of India, Eightieth Report, 32 (1979)
86 Of course after the Second Judges Case and later after the experience with the working of the law
laid down in that case in 1982 and 1990 respectively Constitution amendment Bills were introduced
in Parliament. While the first of these Bills provided for a five member commission consisting of
distinguished jurists the second provided for a commission consisting of the Judges almost exactly
on the lines laid down in the Second Judges Case. Neither of these amendments was seriously
pursued

327
 the Constitution makers and is considered one of the main
reasons for its success.87 The law laid down by the Court
seems to represent that consensus at the moment.

If Holmes' proverbial remark holds good - that the law is

not mere logic but also experience - then even if any difference
between the text of the Constitution and its interpretation by the
Court may be brought to light, the text has to be seen as an
evolving phenomenon not to be twisted to suit any immediate
gains but as part of a system which unmistakably provides for
an independent and competent judiciary. 88 The Court has
performed that job without any offence to the text of Arts. 124
(2) and 217(1) but rather looking at it in its setting. It does not
bring back the concurrence of the Chief Justice of India which
had been rejected by the Constitution makers primarily because
the Chief Justice of India - as an individual unaided by any one
- could also err.89 Under the law laid down by the Court, the
Chief Justice has to act in collegiums whose proceedings will be
maintained in writing. Even while so acting his opinion may not
always be given effect. In appropriate cases for adequate
reasons it may still be rejected. But such rejection will now be
effected only in consultation with him as collegiums and not at
the will of the executive. The error element which was present
in the minds of the Constitution makers has been taken care of
87 See G. Austin, “The Indian Constitution : Cornerstone of a Nation “ at 31 Iff
88 See, H.J. Berman, Law and Revolution (1983), particularly at p. 16 where he says that the legal
institutions and procedure, legal values, and legal concepts and rules "derive their meaning in part
from their history."
89 See the speech of Dr Ambedkar cited above, No. 5 and quoted in the Judges Case and the Second
Judges Case in which he rejected the idea of the concurrence of the Chief Justice because in spite
of his eminence, impartiality and soundness of judgment he was also a human being subject to all
the failings, sentiments and prejudices which we as common people have and therefore not to
repose in him the faith which we were not ready to repose in the President. Unlike the President of
India who acts on the aid and advice of a Council of Ministers responsible to Parliament the Chief
Justice of India is not required to act on the aid and advice of anyone and is also not accountable to
any one. For the view that the Second Judges Case brings back the "concurrence" of the Chief
Justice of India which was rejected by the Assembly, see Seervai, above No. 8 at 2945ff., 295 Iff.
(4th Edn.); P.C. Rao, above, No. 12

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by the Court. Nothing is available in the history of Arts. 124(2)
and 217(1) that the solution to the error element given by the
Court was ever present in the minds of the Constitution'makers
or was ever suggested, much less considered, by the Assembly
or any of its members. What would have been the reaction of the
Constitution makers had it been suggested to them is anybody's
guess. But such questions may legitimately be asked for
determining the intent of the law-maker in deciding the difficult
or hard cases.90 Greater justification exists for the application
of this technique of interpretation in the case of a Constitution
which has to exist indefinitely in changing times and
situations. By its interpretation of Arts.124(2) and 217(1) in the
Second Judges Case as clarified in the Third Judges Case the
Court did not introduce any of the alternatives which had been
considered and rejected by the Assembly. "In the appointment of
Supreme Court and High Court justices", Austin notes, "the
Assembly provided that the President should act neither in his
discretion nor on the advice of his council of ministers but in
consultation with the Chief Justice and other justices."91 The
Court only restores, reiterates and clarifies that position.

Purposive interpretation of the Constitution, a well

recognized technique and rule of interpretation, also justifies
the interpretation of the Court.92 It is universally accdpted that
the Constitution does everything possible to ensure the
independence of the judiciary. It is also accepted that the
independence of the judiciary is a basic feature of the

90 See, R. Dworkin, A Matter of Principle, 9ff. (1986), particularly his counterfactual argument for
determining the intentions of the law-maker. Also at 119ff
91 Austin, The Indian Constitution : Cornerstone of a Nation at 129
92 On the application of purposive interpretation of a constitution see the decision of the court of
Final Appeal of Hong Kong in Ng Ka Ling v. Director of Immigration, Final Appeal No. 14 of
1998, decided on 29-1-1999. For its application to the Constitution of India see Seervai, above, No.
8 at 186 ff. (4th Edn.)

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Constitution. The independence of the judiciary is a goal
pursued not just for its sake but for ensuring the smooth
functioning of the Constitution and for the realization of its
goal of a just and democratic society based on the rule of law.
Any interpretation of the Constitution which comes in the way
of the independence of the judiciary is, therefore, not consistent
with the Constitution and is also not otherwise justifiable. The
interpretation in the Judges Case giving primacy to the
executive, as we have already noted, led to the appointment of
at least some Judges against the opinion of the Chief Justice of
India within less than a decade. This could never have been
intended by the Constitution makers because it undermines the
independence of the judiciary. If an interpretation such as that
in the Judges Case receives widespread criticism and
condemnation and the matter is again brought before the Court
for reconsideration, the Court is under a duty to rectify the
wrong and give an interpretation which is consistent with the
purpose of the provisions and is also not inconsistent with their
language. The Court did that job remarkably well in
the Second Judges Case and the Third Judges Case.

The method of appointment devised by the Supreme Court

on an extended interpretation of the Constitutional provisions is
under debate and the matter is of great importance because of
pre-eminent position of the Constitutional Courts. Already a
debate has been initiated by two senior and eminent advocates
of the Supreme Court, Shri Anil Divan and Shri T.R.
Andhyarugina wisely questions “Would such commissions be
successful in India? There are justifiable doubts about finding
independent and competent members who would not be
influenced in their decisions. This raises the vexed question

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whether the present system with suitable modifications should
be continued or judicial commissions be introduced in India”.

The reforms in the judiciary are already taking place and

some more are on the anvil. A totally inadequate judicial
strength is sought to be rectified - the number of puisne judges
of the Supreme Court Judges has already been increased to 30
from25. Recently the Chief Justice of India pointed out those
35,000 subordinate courts would be needed to tackle the
pendency and the new cases and that though 16,000 subordinate
courts are sanctioned at present only 14,000 are functional. The
law minister announced that we would be introducing the Judges
(Standard and Accountability) Bill in the Parliament soon. At
the recent meeting of the Chief Ministers and the Chief Justices
in August 2009 it was agreed in principle that an All India
Judicial Service should be created and that before giving effect
to its formation comprehensive deliberations should be held. In
view of the fact that all the large and medium States are having
National Law Universities it would be necessary to set up such a
service without any delay to attract talent to the judiciary.
Justice Krishna Iyer has suggested that what is required is not
merely increase in number of courts but also attracting the
ablest and training them. Filling up of vacancies has also to be
streamlined to avoid inordinate delays. The National Law
University, Delhi has started a post graduate diploma course on
judging and court management designed to meet the needs of
law graduates who are interested in entering the judiciary. Other
National Law Universities also can start such diploma courses.
National Judicial Academics also have been started in many
States. Under the circumstances if not impossible for higher
judiciary to be provided with the necessary infrastructure to
facilitate proper selection of candidates for appointment as High
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Court Judges and Supreme Court Judges after through enquiry of
their antecedents, character integrity, ability, independence and
commitment to the judiciary. If All India Judicial Services is set
up, recruitment from the cadre of district judges to the High
Court can be increased up to even 60 percent or more. How
transparency and openness in the selection process can be
achieved has to be widely debated.

6.9. Conclusion

Coming to the higher judiciary in India, its performance

over the last 64 years and more has been extremely gratifying
and admirable. It has evoked the admiration and appreciation of
the world community in general and of judicial institutions in
particular. It has succeeded in protecting and promoting the
public good by effectuating and expanding the horizon of the
fundamental rights and by enhancing the sanctity and relevance
of the Directive Principles of State Policy. It has produced
some very brilliant and extraordinary judges - known for their
learning, integrity and devotion to law as a means- of enhancing
public good -which any nation can be justly proud. But there
have been some exceptions too and in the recent years more
such exceptions are coming to light. There has been, of late,
public concern over judges note observing working hours, being
away from court-work even without seeking leave, unduly
delaying judgments and otherwise conducting them in a un­
judge like manner. It is these few persons whose conduct
calls for disciplinary system so as to preserve the fair name of
the judiciary. Such a system will protect those unjustly
accused. That apart, the very existence of the system will be a
deterrent and will obviate the need to use it. It can be concluded

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that the judiciary has an important role to play in any
democratic society. The founding fathers of our Constitution
envisaged a strong and independent judiciary which would act as
a counterbalance to the excesses of the legislature and the
executive. India has followed the doctrine of separation of
powers. This system provides for a separate role for each of the
three branches of the state viz. the executive, legislature and the
executive. If the powers relating to the three wings are
concentrated in one hand, it will lead to the perpetuation of
tyranny and the withdrawal of individual civil liberties. This is
not a desirable position since the judiciary acts as a guarantor of
our fundamental rights. Independence of judiciary, from the
control of the executive and the legislative wings was thus
foreseen as a safeguard that would ensure that justice was
delivered to the citizens.

However, this situation cannot exist in any democratic

system. As part of any system of checks and balances, the
legislature is entrusted with the power of removing the errant
judges through an elaborate procedure. The procedure is
deliberately made tough in order to make it cumbersome and
remove the fear of removal from amongst the judges so that they
can exercise their mind freely while making
decisions. However, such overlapping of powers does raise
questions with regard to the independence of the judiciary.
Since the procedure of removal of is so difficult, there has been
devised a method of transferring judges as a way of punishment.
Recently, there have been instances of judges of the Punjab &
Haryana High Court and the Karnataka High Court being
transferred as they had indulged in activities not in tune with
their high offices. It is the belief of the researcher that this
method is highly unsuitable and does not solve any problems.
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 The judgment in the Judges’ case dealt with many
questions and in some respects those judgments developed the
law in the right direction. Thus in respect of what used to be
called “Crown Privilege” and is now called “public interest
immunity”, the judges case brought and is now called “public
interest immunity ”, the judges case brought our law in line with
the latest developments in England.93

■ Therefore, in light of the difficulties and problems, the

need of the hour is to set up a National Judicial Commission.
Although this may not be the panacea for all ills, but it can
solve many of the problems since it will be a specialized body
which will look into the matter in a more scientific manner. The
advantage of having such a Commission is that it will be beyond
the political and executive framework. The researcher has
already outlined its composition. Therefore, in order to maintain
the independence of the judiciary, the setting up of the National
Judicial Commission is perhaps of utmost importance.

All mechanisms for judicial appointment may have some

advantages and disadvantages and therefore, no particular
system can be treated as the best system. Despite this in order to
maintain public confidence in the appointment system and to
ensure judicial independence the commission system is perhaps
a very effective mechanism for judicial appointment. However,
to ensure the effectiveness of this mechanism the commission
should be representative in nature comprising members of the
executive, legislature, judiciary, legal profession and lay

93 H.M. Seervai Constitution law of India paras 16.708 to 16.747 of Vol. II

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persons. In addition, it should be ensured that the commission
uses a system which is transparent and open to public scrutiny.
In this regard the composition and working system of the South
African Judicial Service Commission may be an acceptable,
model. Such a mechanism may be very effective to ensure the
appointment of the best-qualified people to judicial office.

The Constitution needs to provide for systems with checks

and balances to eliminate abuse and misuse of public power. The
caution administered by Dr. Rajendra Prasad at the concluding
session of the Constituent Assembly is worth recalling. He then
said: “Whatever the Constitution may or may not provide, the
welfare of the country will depend upon the way in which the
country is administered. That will depend upon the men who
administer it... a Constitution like a machine is a lifeless thing.
It acquires life because of the men who control it and operate it
and India needs today nothing more than a set of honest men
who will have the interest of the country before them”.

This is the crux of the matter. The expectation from the

judiciary is indeed very high in view of the nature of its role in
the Constitution. The independence of the judiciary is meant to
empower it as the guardian of the rule of law. It is not merely
for its honor, but essentially to serve the public interest and to
preserve the rule of law. Judicial accountability is a facet of the
independence of the judiciary in the republican democracy.
There are, therefore, recognized norms of judicial behavior
expected from the judges. In the words of Addison, ‘to be
perfectly just is an attribute of the divine nature, to be so to the
utmost of our abilities is the glory of man’. This is an apt
description of the nature of judicial function.

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 How to ensure this result and to achieve the true purpose
of judicial independence? It has been answered in the texts and
by the recognized judicial conventions restated generally in the
above 1997 resolutions. The Allahabad High Court Post-
Centenary Silver Jubilee Commemoration Volume reminds us
with a quote from the ancient texts:

“Let the king appoint, as members of the courts of justice,

honorable men of proved integrity, who are able to bear the
burden of administration of justice and who are well versed in
the sacred laws, rules of prudence, who are noble and impartial
towards friends and foes”.

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