DR.

MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2016

Final draft
CONSTITUTIONAL LAW-II

Collegium System And Supremacy of Judicary

SUBMITTED BY:

POOJA KUSUM

BALLb.(Hons.) 4th SEM

ROLL NO.- 90

SUBMITTED TO:

Mr. A.K. TIWARI

Associate Professor (Law)

Dr. RMLNLU, Lucknow

 ACKNOWLEDGEMENT

I express my humble thanks to my subject teacher of Constitutional Law, under whose

supervision the project has been made and without whose teachings and insights on the
various schools of law, the project could not have been fructified.

I also extend my heartiest thanks to my seniors for their insights into the concerned project
and helping me with everything I asked them. The role of the Library Department is
noteworthy. All the staff members helped me generously in getting the materials and
information I needed to complete the project.

Thank You
Pooja Kusum

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 CONTENTS

1. Topic

2. Introduction

3. Appointment of judges In India

4. First Judge Case: S.P. Gupta V. Union Of India

5. Aftermath of First Judges Case:

6. S.C. Advocate on Record Association v. Union of India

7. The Birth of Collegium System

8. Defects of Collegium System

9. Solution And Various Recommendation For Improving

Collegium System

10. Conclusion

11. Bibliography

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 INTRODUCTION

Everything secret degenerates, even the administration of justice; nothing is safe that does
not show it can bear discussion and publicity.
-Lord Acton
Judiciary is one of the pivotal organs amongst the three organs of the State- viz. legislature,
executive and judiciary. Judiciary is looked upon by the common people of the country as
their saviour, the custodian of fundamental rights, as saviour of their hopes and aspirations.
Unlike the other two organs, people expect a lot from the judiciary. Therefore, the judiciary is
expected to remain independent and perform its task in a free and fair manner 1 and so far as
Indian Judiciary is concerned, it is one of the greatest institution which has a recognized place
in the whole world because everybody by now is admiring Indian jurisprudence particularly
the jurisprudence for dignity of a human being which has been evolved by the Supreme
Court.Inspite of being an institution of impeccable respect and honour, Judiciary is facing
various problems pertaining to corruption and its internal administration.
Lord Harry Woolf, the lord Chief Justice of England, once said that "Like old clocks, our
judicial institutions need to be oiled, wound up and set to true time". This proposition is very
much true when we talk about Indian Judicial System because, presently, this institution is at
crises. Judiciary is not untouched by corruption which is the burning issue of present
scenario. In fact, the corruption is not as rampant in the higher judiciary as it is in lower
judiciary. Beginning with the `defeated' Justice V. Ramaswamy impeachment in the early
1990s, the last decade portrays scandals. These include the Bombay Pay-off Scandal of 1990,
the controversy over the Bombay High Court Chief Justice Bhattacharjee receiving large
"foreign" royalties in 1995, controversies, however founded or unfounded, over Justices
Punchi and Anand - both Chief Justices of India - and Justice Bharucha's declaration that 20
per cent of judges are corrupt. The bench comprising ofMarkandeyKatju,J. and
GyanSudhaMishra,J. in case of Raja Khan v. U.P. Sunni Central Waqf Board and Anr.2raised
serious question over integrity of several of its judges and further, Justice Katju quoting from
Hamlet made an observation that Something is rotten in High Court of Allahabad.
Judges after all should be like Caesar's wife and be above all suspicion. Thus, the
appointment of judges should be fair and transparent, but unfortunately that is not so. The
appointment is made by the body known as Collegiums, a product of judiciary itself which is

1
Law Teacher,Judiciary of hope and aspirations< http://www.lawteacher.net/judicial-law/essays/judiciary-of-
hope-and-aspirations.php#ixzz2PNIarDkh> accessed on 30 th March 2013.
2
Raja Khan v. U.P. Sunni Central Waqf Board and Anr (2011)1SCC(LS)359
4|Page
secretive in nature. Its conduct in the matter of selection and appointment of judges and its
secretive nature has drawn a lot of flak from all sections of the society and more so from the
legal fraternity itself. The defence of collegiums, through the slender arguments of the matter
being confidential and may not be conducive for the proper functioning and efficacy of the
judicial system in the country, is not taken accepted/respected by the members of the public
and is discarded. The legal/technical defences called in aid by the collegiums to refuse to
divulge information about the manner of appointment of judges, has come in for very grave
criticism and perhaps rightly so. It is claimed that to maintain a good image and the
reputation of the institution, it is necessary not to divulge information leading to the
recommendation and appointment of judges in the superior courts. But such an argument has
very little ground in this era of accountability3.
This project aims to throw light on the present form of collegiums system that is involved in
the appointment of Supreme Court and High Court Judges.

3
Law Teacher,Judiciary of hope and aspirations< http://www.lawteacher.net/judicial-law/essays/judiciary-of-
hope-and-aspirations.php#ixzz2PNIarDkh> accessed on 30 th March 2013.

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 APPOINTMENT OF JUDGES IN INDIA

The independence of judiciary was undermined to certain extent by the Emergency. There
were large scale transfers of judges during the Emergency. In fact a list of 56 Judges to be
transferred without their consent was prepared. But only 16 were transferred while others
were leaked in order to threaten the Court. This was challenged in the Court in Union of India
v. SankalchandHimmatlal Seth4.The Supreme Court struck down the action of the Union. The
word transfer' was given a narrow interpretation in order to maintain the independence of
judiciary. The Supreme Court was called upon to safeguard the independence of judiciary
from undesirable appointments and arbitrary transfers by the executive through 3 cases-
popularly known as the First, Second and Third Judge's case. Thus, the mode of appointment
of the judges came under the scanner for the first time.

The relevant Article for the appointment of a Supreme Court judge is Sub-clause (2) of
Article 124. The said Article reads as follows:

Article 124: Establishment and Constitution of the Supreme Court

(2): Every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall hold
the office until he attains the age of sixty five.

Provided that in case of appointment of a Judge other than the Chief Justice , the Chief
Justice of India shall always be consulted.

The relevant Article for the appointment of a High Court judge is Sub-clause 1 of Article 217.
The said Article reads as follows:

Article 217: Appointment and conditions of the office of a Judge of a High Court

(1): Every judge of a High Court shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of India, the Governor of the State, and
in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the
High Court.

4
Union of India v. SankalchandHimmatlal Seth (1978) 1 SCR 423
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The appointment is thus made by the President after consultation amongst the functionaries
mentioned in these Articles. The expression consultation' does not mean concurrence'. In
the Constituent Assembly when suggestion was given that the expression should be
concurrence and not consultation, it was not agreed. Dr. B.R. Ambedkar made the following
comments in that regard:

With regard to the question of the concurrence of the Chief Justice, it seem to me that those
who advocate that proposition seem to rely implicitly both on the impartiality of the Chief
Justice and the soundness of his judgment. "I personally feel no doubt that the Chief Justice
is a very eminent person. But after all, the Chief Justice is a man with all the failings all the
sentiments and all the prejudices which we as common people have; and I think, to allow the
Chief Justice practically a veto upon the appointment of Judges is really to transfer the
authority to the Chief Justice which we are not prepared to vest in the President or the
Government of the day. I, therefore, think that is also a dangerous proposition.5"

5
Speech ofDr. B.R. Ambedkar from Constitutional Assembly Debate.Quoted by Justice P.N. Bagwati in S.P.
Gupta v. Union Of India.
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 First Judge Case: S.P. Gupta V. Union Of India
1973 to 1983 was a deplorable decade that is of unseemly tussle between the ruling party and
the judiciary. In 1973, three senior-most judges of the Supreme Court were superceded. The
person appointed as the Chief Justice had held in favour of the Government in three
important constitutional cases. Justice H.R. Khanna should have become the Chief Justice.
However, he delivered a most courageous judgement during the emergency. The majority
had held that a person who had been detained without trial need not approach either the
Supreme Court or the High Court. He could be held in preventive custody and would have no
remedy at all. Justice H.R.Khanna delivered a brave dissenting judgement. He paid the price
and was superceded by a junior judge.
During the emergency from 1975 to 1977, 16 High Court judges were transferred; all of them
had shown remarkable independence which was not to the liking of the then Prime Minister
of India - Mrs.Indira Gandhi and her Government.
The case of S.P. Gupta v. Union of India, remembered as the Judges Transfer Case, 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 Courts 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 CJI
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 Allahbad High
Court.
4. The circumstances of transfer of Judges, arising in the context of Chief Justice KBN Singh
of the Patna High Court.

All the judges agreed that the petitioners did indeed have locus standi, but on hearing the
entire case, the majority granted no relief and all the petitions were dismissed. The exercise
of judicial production did not however, end with the 1486 pages of the judgment dismissing
the petition, it in fact went further and laid down several propositions of law with emphatic
authority.The fallout of S.P. Gupta was that the opinions of the Chief Justice of India (CJI)

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and Chief Justices of the High Courts were totally ignored in matters of appointment and
transfer of judges as power had slipped in the hands of the corrupt executive to the exclusion
of the judiciary and for a period of about 12 years the judges were appointed by the corrupt
executive butNanabhoyPalkhivala pointed out in his work We The Peopleas a landmarks case
in the respect that in the history of the Indian Supreme Court it was for the first time that: the
CJI filed an affidavit before the Supreme Court, an Additional Judge actually challenged his
non-extension before the SC and a plea of privilege in the matter of documents pertaining to
judicial appointment was denied. I may add a fourth, that in a matter of significant
Constitutional significance decided by a Bench of 7 judges, the CJI was not on the Bench.
But the rationale that was given by the majority was quite satisfactory from the standpoint of
transparency in the sense that the Executive is responsible to the Legislature, and through the
Legislature it was accountable to the people. To this effect Bhagawati, J observed in case of
S.P. Gupta v. UOI6,
This is, of course, not an ideal system of appointment of Judges, but the reason why the
power of appointment of Judges is left to the Executive appears to be that the Executive is
responsible to the Legislature and through the Legislature, it is accountable to the people
who are consumers of justice. The power of appointment of Judges is not entrusted to the
Chief Justice of India or to the Chief Justice of a High Court because they do not have any
accountability to the people and even if any wrong or improper appointment is made, they
are not liable to account to anyone for such appointment. The appointment of a judge...
does not depend merely upon the professional or functional suitability of the person
concerned in terms of experience or knowledge of law though this requirement is certainly
important and vital and ignoring it might result in impairment of the efficiency of
administration of justice, but also on several other considerations such as honesty, integrity
and general pattern of behaviour which would ensure dispassionate and objective
adjudication with an open mind, free and fearless approach to matters in issue, social
acceptability of the person concerned to the high Judicial office in terms of current norms
and ethos of the society, commitment to democracy and the rule of law, faith in the
constitutional objectives indicating his approach towards the Preamble and the Directive
Principles of State Policy, sympathy or absence thereof with the constitutional goals and the
needs of an activist judicial system. These various considerations, apart from professional
and functional suitability, have to be taken into account while appointing a Judge of a
High Court or the Supreme Court and it is presumably on this account that the power of

6
S.P. Gupta v. Union Of India AIR 1982 SC 149
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appointment is entrusted to the Executive. But, as pointed out above, there is a fetter placed
upon the power of appointment by the requirement of consultation with the Chief Justice of
the High Court, the Governor of the State and the Chief Justice of India in case of
appointment of a High Court Judge and with the Chief Justice of India in case of appointment
of a Supreme Court Judge7.
This judgment was seen by many within and outside the judiciary to lend too much power to
the executive arm of the Union. Independence of judiciary was already held to be a basic
structure in KesavanandaBharati v. State of Kerala8.

7
S.P. Gupta v. Union Of India AIR 1982 SC 149at para 29.
8
KesavanandaBharati v. State of Kerala AIR 1973 SC 1461
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 Aftermath of First Judges Case:
S.C. Advocate on Record Association v. Union of India
A 9-Judge Bench was constituted in pursuance of an order dated October 26, 1990 passed in
Subhash Sharma vs. Union of India9. The papers of the S.C. Advocate on Record Association
vs. Union of India10were directed to be placed before learned Chief Justice of India to
examine the two questions referred therein namely- the position of the CJI with respect to
primacy, and justiciability of fixation of judges strength. The Bench in Subhash Sharmas
case which referred the said two questions was of the opinion, that the correctness of the
majority view in S.P. Gupta vs. Union of India required reconsideration by larger Bench. It
was in this backdrop that the judgment in Second Judges case was welcomed.
Before moving on to an analysis of the controversial decision in the Advocates on Record
case, it should be noted that of the 547 appointments to the higher judiciary in the decade
ending 1993 only 7 were not in accordance with the opinion of the Chief Justice of India11.
The Second Judges case was decided by 9 Judge Bench. The majority opinion was delivered
by Verma J (on behalf of YogeshwarDayal, G.N. Ray, A.S.Anand and S.P. Bharucha JJ),
concurred by S.RatnavelPandian and Kuldip Singh JJ. The minority views were of
A.M.Ahmadi and M.M.Punchhi JJ (as the lordships then were). The decision overruled the
First Judges Case. In the Second Judges case the Supreme Court held that the opinion of the
CJI, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of
all appointments: and no appointment can be made by the President under the provisions
to the Supreme Court and the High Courts, unless it is in conformity with the final opinion
of the CJI formed in the manner indicated. The manner indicated was that the opinion
given by the CJI in consultative process has to be formed taking into account the views of the
two senior most judges of the Supreme Court, and the CJI is also expected to ascertain the
views of a 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. Similarly in matters relating to the appointment in the High Courts, the CJI is expected
to take into account the views of the colleagues in the Supreme Court who are likely to be
conversant with the affairs of the concerned High Court. This view of the Supreme Court in

9
Subhash Sharma vs. Union of India AIR 1991 SC 128
10
S.C. Advocate on Record Association vs. Union of India AIR1994 SC 268
11
Cyrus Das & K Chandra (Ed.) Judicial Accountability: India's Methods and Experience' in Judges and
Judicial Accountability'

11 | P a g e
Second Judges case rested on the concept of independence of judiciary being the basic
feature of the Constitution. Other conclusions were:
(1) 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 reach an agreed decision, sub serving the constitutional
purpose, so that the occasion of primary does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the
Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court;
and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by
the Chief Justice of India. This is the manner in which proposals for appointments to the
Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the
High Courts must invariably be made.
(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) In exceptional cases alone, for stated strong cogent reasons, 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.

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 THE BIRTH OF COLLEGIUM SYSTEM
The idea of collegium' was also born in this case. In fact Bhagawati J at para.29 of S.P.
Gupta did make a mention of the concept of collegium. The learned judge opined:
We would rather suggest 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 more broad based and there should be consultation with
wider interests. If the collegium is composed of persons who are expected to have knowledge
of the persons who may be fit for appointment on the Bench and of qualities required for
appointment and this last requirement is absolutely essential it would go a long way towards
securing the right kind of Judges, who would be truly independent in the sense we have
indicated above and who would Invest the judicial process with significance and meaning, for
the deprived and exploited sections of humanity.
The answer to what would consist of collegiums was answered by 9 judge Bench, consisting
of S.P. Bharucha, M.K. Muhkerjee, S.B. Majumdar, Sujata V. Manohar, G.T. Nanavati, S
Saghin Ahmad, K Venkataswami, B.N. Kinful and G.B. Patnaik- JJ, answered the reference
unanimously in case of , in paragraph 44 of the reference.

The Chief Justice of India must make a recommendation to appoint a judge of the Supreme
Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with
the four seniormostpuisne judges of the Supreme Court. In so far as an appointment to the
High Court is concerned, the recommendation must be made in consultation with the two
seniormost -puisne judges of the Supreme Court. The court further held that the
requirement of consultation by the Chief Justice of India with his colleagues, who are likely
to be conversant with the affairs of the High Court concerned, does not refer only to those
judges who have that High Court as a parent High Court. It does not exclude judges who
have occupied the office of a judge or Chief Justice of that High Court on transfer.The
court also clarified that the views of the other judges consulted should be in writing and
should be conveyed to the Government of India by the Chief Justice of India along with his
views...

Later on, in case of Special Reference No.1 of 1998 In Re Presidential Reference the
collegiums system again came under the scanner of Supreme Court.M.M. Punchhi, the
dissenting judge in the Second Judge's case became the C.J.I. in 1998. He was terribly upset
with the majority opinion in the Second Judge's case. When he became the Chief Justice, he
13 | P a g e
tried to get away from the ruling and in a matter of transfer of five High Court judges he
made his recommendations without consulting the two senior most judges at that time,
namely A.S. Anand and S.P. Bharucha JJ .At the onset of hearing, the Union of India through
its Attorney General said that the Union of India is not seeking a review or reconsideration of
the judgment in the Second Judges case12. The nine judge bench, in unanimity speaking
through S.P. Bharucha J upheld the major premise of Second Judges case. It expanded the
strength of the collegium from two to four. This is necessary for appointments for judges of
the Supreme Court or to transfer a High Court Chief Justice or a High Court judge. In the
case of an appointment to the High Court , the recommendation shall be made in consultation
with the two senior most puisne judges of the Supreme Court. Further, the strong cogent
reasons do not have to be recorded for a departure from the order of seniority in respect of
each senior judge of the High Court who had been passed over for the appointment to the
Supreme Court. What has to be recorded is the positive reason for the recommendation.[15]If
recommendations are made without consultation, they are not binding. Further it
recommended that:

The opinion of the collegium will have primacy in the matter of appointments. It is
open to the Executive to inform the collegium 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.

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 collegium 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 summarised in a memorandum and forwarded to the
Government of India.
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.

12
Special Reference No.1 of 1998 In Re Presidential ReferenceAIR 1999 SC 1, 15 at para.9
14 | P a g e
 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 taken into account the opinion of the Chief Justice of the
particular High Court; this is entitled to the greatest weight

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 DEFECTS OF COLLEGIUM SYSTEM
In Justice Verma's view, the author of the leading opinion in the Second Judges case the
current problem is not one which arises from the enormous authority given to the Supreme
Court collegium by the Second Judges ruling. It is rather from the application of that
judgment and dissemination of the wrong impression that once the collegium makes its
recommendation, it was absolutely binding on the executive, even if the collegium's
recommendation was not unanimous. Justice Verma went on to say: .the opinion of the
executive is weightier in the area of antecedents and personal character and conduct of the
candidate; the power of non-appointment on this ground is expressly with the executive,
notwithstanding the recommendation of the CJI; and that doubtful antecedents etc., are alone
sufficient for non-appointment by the executive. The decision also holds that the opinion of
the judicial collegium, if not unanimous, does not bind the executive to make the
appointment.13 In an earlier occasion Justice Verma who wrote the lead judgement in the
2nd judges case was asked by V. Venkatesan of Frontline dated 10.10.08, You said in one of
your speeches that judicial appointments have become judicial disappointments. Do you now
regret your 1993 judgments? Justice Verma's answer was, The 1993 judgment which holds
the field, was very much misunderstood and misused. It was in that context I said that
working of the judgment now for sometime is raising serious questions, which cannot be
called unreasonable; therefore some kind of rethinking is necessary.
Criticisms of functioning have come in, not only from outsider but also from personalities
who have insiders' in the functioning of the Supreme Court. Referring to the lack of
credibility in the in house process of appointment, former Supreme Court Judge
V.R.KrishnaIyer opined:
It has often been dilatory, arbitrary and smeared by favourites. The Nine Judges Bench, in a
mighty seizure of power, wrested authority to appointjudges from the top executive to
themselves by a stroke of adjudicatory self-enthronement.
A judiciary which has total control over its own composition would have a club like outlook.
Thus, judges who do not subscribe to the views of the Collegium may not be considered for
appointment. For e.g. Justice A.P. Shah was not considered for elevation to the Supreme
Court as he delivered landmark judgments like in Naaz Foundation Case legalizing
homosexuality, in the Subhash Agarwal's case bought the office of the CJI under the ambit of
the RTI, much to the displeasure of the Court. This in fact is strengthened by the fact that

R.K. Raghavan Dangers Within' accessed from <www.hinduonnet.com>

13

16 | P a g e
Justice S.H.Kapadia, one of the members of the Collegium is believed to have told the
lawyers who met him that the judgments delivered by Shah was for extraneous' reasons- that
is considerations not germane to the case influenced the judgment. If such a coterie' exists
within the Collegium, it will be difficult for the good judges to make it to the Apex Court.
In prescribing the appointment to judges of the Supreme Court and the High Courts by the
collegium, the Supreme Court did not realise the burden it was imposing on the collegium of
selecting judges for the Supreme Court and High Courts and transferring them from one High
Court to another. At any given time there are two to three vacancies in the Supreme Court,
and 200 in the 22 High Courts and the transfer of a number of judges to be made. An
administrative task of this magnitude must necessarily detract the judges of the collegium
from their principal judicial work of hearing and deciding cases. The collegium neither has a
secretariat to shoulder this burden nor an intelligence bureau to make appropriate inquiries of
the competence, character and integrity of a proposed appointee. The result is the proposal for
appointment of a judge like P.D. Dinakaran, who has been under the scanner, while a Judge
like A.P. Shah, who is very meritorious is overlooked.
Collegium lacks the infrastructural backup and thus resorts to ad hoc informal consultations
with other judges in the Supreme Court who are expected to know the merits of a proposed
appointee from a High Court or occasionally by sounding a member of the Bar. These
methods are poor substitutes for a full time intensive collection of data about an incumbent,
his work, standing, merit, integrity and potential which requires to be made considerably in
advance for filing in the vacancy. Besides, the collegium's deliberations are secret, the system
is opaque and the choice of a judge is only known when his name is forwarded to the
Government for formal appointment. The collegium has necessarily limited its field of choice
to the senior-most judges from the High Court for the appointments to the Supreme Court,
overlooking the several talented junior judges in the High Courts or members of the bar.
Limiting the zone of selection to senior-most judges of the High Court has induced legitimate
expectations in them to be promoted to the Supreme Court and consequent disappointment
when they are overlooked.
With regard to appointments, the Supreme Court's judgments in the Second and Third Judges
Cases, according to observers, paved the way for several wrong appointments. With the
Collegium's deliberations shrouded in secrecy, it was inconceivable that any wrong
recommendation of the collegium would come to public notice. There is a gap of six to 10
weeks which can stretch up to a maximum of 16 weeks, if there is disagreement among
members of the collegium between the government's receipt of a proposal from the CJI and

17 | P a g e
the actual appointment of a judge. But this period is almost always rushed through, with little
public transparency over the written opinions of the members of the collegium. The 1993
judgment makes these opinions non-justiciable but non-disclosable to the public.

To be fair to the present collegium of the Supreme Court it has inherited a system with these
limitations given to them by the two judgments of the Supreme Court. With the best effort
and good faith the collegium suffers from institutional handicaps

18 | P a g e
 VARIOUS RECOMMENDATIONS FOR IMPROVING
COLLEGIUM SYSTEM

The Dinakaran episode, A.P.Shah's non elevation etc. have raised huge question marks on the
future of Collegium. The writer has already discussed the need to reconsider the Second
Judges case and therefore the alternative system comes as a necessary corollary to that. In
1987, the Law Commission suggested for a broad based National Judicial Commission. It had
the following composition: The Chief Justice of India must be at the head of this body and
must be designated as Chairman. His pre-eminent position should not be diluted at all. Three
senior-most judges of the Supreme Court next in rank to the CJI, because of their long
judicial experience on close proximity of the Bar, should be members of the Commission.
The predecessor in the Office of the Chairman i.e. the person who has retired as the Chief
Justice of India to whom the Chairman has succeeded will also be a member. He would be an
asset to the Chief Justice of India. Three Chief Justices of the High Courts according to their
seniority as Chief Justices would be members. Minister of Law and Justice, Government of
India, by virtue of his office would be a member. He represents at the highest level, the
executive. Attorney General of India would be a member by virtue of his office as the leader
of the Bar and not owing his office to any questionable electoral process, he can adequately
represent the interests of the Bar. An outstanding law academic would also be a member of
the Commission.

The Constitution (67th amendment) Bill, 1990 proposed the formation of a National Judicial
Commission for the appointment of Supreme Court and High Court Judges and for the
transfer of Judges from the High Court. The object was to prevent any arbitrariness in
appointments and. This Judicial Commission was based on the recommendations in the 121st
Law Commission Report. Its composition was different. The Chief justice of India was the
Chairperson of the Commission and two other judges of the Supreme Court next to the Chief
Justice should be the other members to be consulted. For making appointments to the High
Courts it should be the CJI who should be the Chairperson, one other judge of the Supreme
Court next to the Chief Justice in seniority, Chief Justice of the High Court and one other
High Court judge next to the Chief Justice in seniority. The Bill however, lapsed.

The proposal for a National Judicial Commission has been resurrected by the Constitution
(98th amendment) Bill, 2003 and once again contemplates the formation of a National
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Judicial Commission. It proposes to introduce a new Chapter consisting of just one Article in
the Constitution and also proposes to make consequential amendments to other Articles in the
Constitution. The National Judicial Commission, if formed, will consist of the following
persons:-

(i) the Chief Justice of India, who shall be the Chairperson of the Commission.

(ii) two other Judges of the Supreme Court next to the Chief Justice of India in seniority.

(iii) the Union Minister in-charge of Law and Justice; and

(iv) one eminent citizen to be nominated by the President of India in consultation with the
Prime Minister for a period of three years.

The Commission is to draw up a Code of Ethics for the Judges of the Supreme Court, the
Chief Justices and the Judges of the High Courts and can inquire into cases of their
misconduct or deviant behaviour and advise the Chief Justice of India or the Chief Justice of
the concerned High Court appropriately.

The National Commission to Review the Working of the Constitution (NCRWC) felt that the
post-1993 arrangement for appointment of judges needed improvement. It said that a
National Judicial Commission headed by the Chief Justice of India and comprising two
senior-most judges of the Supreme Court, the Union Law Minister and an eminent person
nominated by the President in consultation with the Chief Justice of India should select
judges. The NCRWC said, It would be worthwhile to have a participatory mode with the
participation of both the executive and the judiciary in making such recommendations.

More recently, the Second Administrative Reforms Commission (ARC) has come out
strongly in favour of a National Judicial Council to select judges. Though the Second ARC
differed from the MN Venkatachalaiah Commission on the composition of this body, the
central theme remained the same. It said the NJC should be headed by the Vice-President and
comprises the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India, the
Union Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya
Sabha.

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 CONCLUSION

In no democratic country the appointment of judges has been left exclusively to the judiciary.
The denial of judicial review a basic feature highlights the secrecy in such appointments. It
was with a view to ensure that the best products become the judges. But history has another
story to tell. It is not necessary that the best products are ensured if judges appoint them. Lord
Halsbury's appointments to the High Court had been controversial in the sense that the
appointees were men of little or no learning whose previous career in public life had been
largely in the service of the Conservative party or elsewhere, or else relations of his own.
Thus, Ambedkar's view in the Constituent Assembly on Judge's appointment was correct.

What therefore needs to be done is to strike a right balance between the executive and
judiciary in the appointment of judges. The writer's view finds support in the
The National Commission to Review the Working of the Constitution', which was headed by
former Chief Justice of India MN Venkatachalaiah, declared in 2002 for a more participatory
mode which would ensure effective participation of both the executive and the judiciary. It
noted that on a plain reading of Article 124 of the Constitution, the power of appointment of
judges vests in the President and the President is expected to perform this function after
consultation and not in consultation with the Chief Justice of India.

In my view, what is required is a National Judicial Commission. Its composition would be

preferably the one that was mentioned by the Law Commission in 1987. Its composition is
reflective of both executive and judiciary. The Law Minister is capable of reflecting the view
of the Executive as it is after all the Ministry of Law which forwards the recommendation to
the Cabinet and to the President. Attorney General will be able to reflect the views of the Bar
and considering his years of practice in the Supreme Court he is better equipped to know
what kind of quality is required for a Supreme Court judge. In view of the vast size of our
judiciary, there can be two Judicial Commissions- one for the Supreme Court and other for
the State.

This may not be the best system available but it will definitely be transparent than a
collegium which functions in secrecy. Transparency in public bodies is need of the hour and
appointment of judges, who act as guardians of our Constitution should be transparent. After
all Judges and their appointments should be like Caesar's wife- above all suspicion.

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 BIBLIOGRAPHY
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