IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

WRIT PETITION (C) NO. 13 OF 2015

IN THE MATTER OF:

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SUPREME COURT ADVOCATES-ON-RECORD

ASSOCIATION
&
OTHERS

PETITIONERS

INDIA

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UNION
OF
RESPONDENT

VERSUS

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Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar,

Senior Advocate on representation/suggestions for improving the
collegium

1.

We have received over 60 representations/suggestions from

various associations and individuals. These include emails and letters which were directly sent to the Supreme
Court and copies thereof were given to us. All
representations/suggestions received till 11:45pm on
04.11.201have been taken note of. As per the directions
of this Honble Court, the representations/ suggestions
were to be divided to 4 categories as enumerated below.
But it was found that several suggestions could not be
classified under any of the four categories and, therefore,
a fifth category - "miscellaneous" was added. The five
categories are:-

(i) Transparency

(ii) Eligibility
(iii) Secretariat
(iiii) Complaints, and
(v) Miscellaneous.
2. The representations have been numbered from R-1 to R-63.

The tabular chart has been annexed to this report. In

addition, copies of the representations/suggestions that
were received have been xeroxed and compiled. In the
case of R-14, the representation comes into 11 pages but
the balance of 190 pages of articles, newspaper reports
and so on have not been xeroxed. Similarly, one
representation sent to the Supreme Court has merely 90
pages of extracts of various judgements but not a single
suggestion; this has not been included. A letter sent to the
Supreme Court also contained the views of two former
Chief Justices of India but these were in the context of
the proposed National Judicial Commission made in
2010. The note/views contain suggestions about the
composition of such a commission and the need for an
All India Judicial Service envisaged by article 312 of the
Constitution of India. As it did not contain any
suggestion pertaining to the above categories only
potions of the 70 page note have not been included in the
compilation.

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3.

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This was necessary for tabulation and analysis. We have

carefully examined these representations/suggestions and
prepared a tabular chart-Annexure A - setting out the
details of the representations/suggestions that have been
made by individual associations/persons. The chart has
six columns which indicate under which category a
particular
association/individual
has
made
a
representation or suggestion. It was found that, in some
cases, there is an overlap between one or more
categories. In such cases, we have chosen the most
appropriate category.

4.

Shri F.S. Nariman, Senior Counsel had given two

compilations. The first contains an introductory note and
relevant extracts of the judgment passed by this Honble
Bench on 16.10.2015. The second consists of the
existing memorandum which shows the procedure for
appointment and transfer of judges. The suggestions of
Shri F.S. Nariman are shown in Italics. As this was in a
different format, it has not been included in the tabular
form but the contents of the memorandum have been
incorporated in the appropriate categories. In particular,
the introductory note on transparency is important. This
has also been dealt with in the category Transparency.

5. It was found that the representations/suggestions under each

category were often repetitive; consequently, a summary

of such common representations/suggestions has been
given hereinbelow.
Suggestions which were not
common have been indicated separately under each
category.

6. Transparency:
The general suggestions as well as special suggestions under
this category can be summarised as follows:-

A. General Suggestions:
There must be well-defined criteria that should be
established by the Supreme Court for appointments
to the High Courts and to the Supreme Court. The
criteria must refer to age, merit, seniority, integrity,
income criteria, academic qualification, etc.;

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(i)

(ii) The criteria should be made available on the website

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of the Supreme Court as well as of the High

Courts. In some suggestions, it was requested that
these vacancies should be notified 6 months in
advance;

(iii)

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Applications should be permitted for appointment

apart from the names being recommended by
judges/collegium;

(iiii)

Eligible candidates who are to apply must give

specific details. In certain cases, it was suggested
that there should be a standard questionnaire. It
was also suggested that the names of the
applicants/candidates may be supported by
recommendations of 2/3 senior advocates;

(v)

The bio-data of the candidates must indicate their

relatives who are judges;

(vi)

The names of the applicants/candidates with the

bio-data should be posted on the website. Some
suggestions stated that the disclosure on the
website should only be with regard to the
shortlisted applicants/candidates after they have
been selected by the High Court collegium;

In a number of cases, it was suggested that the

High Court collegium should at least conduct an
informal interview with the candidates before their
names are finalised.
This was particularly
important because the candidates could be from
different Benches of the High Courts and may not
know the collegium judges.

(viii)

Shri F.S. Nariman has pointed out that too much

transparency could be counterproductive and
hamper effective decision making. Moreover, the
information obtained may not be used for
appropriate purposes. Similarly, another note by
Shri Sunil Gupta (R-17) points out the need of
balancing transparency with confidentiality. It was
pointed out that the transparency should be
maximum at the stage of applications /nominations
and may serve public interest. But there must be
confidentiality during the consultative processes
undertaken by members of the collegium.

The collegium judges must be immune from any

kind of challenge in courts or otherwise as their
work is in discharge of high constitutional or
sovereign functions.

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(ix)

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(vii)

The Minutes of the collegium Meeting must be

recorded. In some cases, it was suggested that the
Minutes should be recorded but need not be
disclosed or made available publicly.

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(x)

(xi)

The candidate should be informed of any objection

and given an opportunity to meet the objection.
Today, the candidate never gets such a change.

B. Special Suggestions:
(i) Union of India has specifically suggested a three-step
procedure of appointment of judges to the
Supreme Court and High Courts that comprises the
recommendation and appointment through a
consultative participatory exercise.
It further
suggests that the detailed working of each of these
steps should be made known publicly;

(ii)

There should be an Annual Report on appointments

which should be publicly available;

(iii) All procedures of the collegium must be recorded in

writing and transferred to the National Archives of

India after 30 years for use by scholars;

(iiii) A panel of eligible candidates must be prepared in

advance and appointment may be made through

this panel;

Before the names are finalised, there should be an

informal consultative meeting with the Chief
Minister to avoid delay in the clearance of files;

(vi)

An IB report regarding the candidates must be

obtained before the name is sent by the High Court
collegium to the Supreme Court. Only candidates
whose names are cleared should be sent to the
Supreme Court;

(vii)

The Minutes of the collegium meeting must be

subject to RTI Act.

(viii)

The candidates must disclose membership of any

political party.

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(v)

candidates to ensure transparency.

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(ix) Rules/guidelines must be prescribed for selection of

7. Eligibility:
7.1 The maximum number of representations/suggestions have

come under this category, which can be further divided

into following sub-categories:-

7.2 Appointment of Advocates to the High Courts:(i) The General Suggestions are:(a)

Age limits, legal knowledge, number of cases

appeared, income limits, etc. must be specified.
It is suggested that there should be a welldefined criteria on this account and this must be

made available on the website.

(b)

Apart from the candidates recommended by

the High Court Judges, it is suggested that
applications should be invited. This can be
termed as expression of interest of a
candidate to become a judge.

(c)

The nominations can also be made by senior

advocates.

(d)

The zone of consideration should not be

merely from relatives of advocates or judges.

(e)

There must be an interview by the collegium

of the shortlisted candidates. There were also
suggestions that the shortlisted candidates for
High Court should also be interviewed, if
necessary, by the Supreme Court collegium.

(g)

(f)

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Zone of consideration should be a panel of

all suitable candidates.

(h)

Advocates practising in the District Courts

must also be considered.

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Judicial members of Tribunals should be

considered for elevation.

(ii) Special Suggestions:

(a) Candidates from other High Courts can also be
considered.

(b)

There must be representations for minority,

backward classes, etc. One suggestion is for a
specific quota system of 27% OBC, 15% SC
and 7 % ST.

(c)

Suggestions from Chief Minister

Governor may also be permitted.

and

(d) A benchmark as practised in Australia may be

followed. Similarly, there must be point

grading system for evaluating the minutes of
independent candidates. Such evaluation can

be done by an independent committee

consisting of retired judges or senior advocates.

(e)

Judges who are heading specialised benches,

criminal law, and taxation can recommend
candidates in their field of specialisation for
elevation.

(f)

Written examination and interview for

elevation to High Courts.

(g)

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Advocates-on-record practicing in the

Supreme Court are not considered for elevation
in the parent High Courts. Consequently, they
are at a disadvantageous position.
It is
suggested that the Supreme Court collegium
must recommend suitable candidates for
appointment to their parent High Courts.

(h) The applications/names shall be scrutinised by

a committee.

Special consideration must be given for

advocates who are appearing in Legal Aid cases
and doing pro-bono work.

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(i)

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(j) There must be more number of women judges.

7.3 District Judges to High Court:(a) Seniority should generally

be the rule with

exceptionally meritorious candidates being also
considered.

(b)

The ratio of District Judges as a proportion to

advocates requires to be altered to 50 : 50 or 75
: 25 (75% should be from the District
judiciary). There is a counter suggestion to
make the ratio 25:75.

(c)

The minimum requirement of 18 months of

service should be reduced to 12 months in view
of the delay in making appointment.

7.4 High Court to Supreme Court:(a) Only Chief Justices should

not be elevated but

candidates of merit should also be considered.

(b)

Union of India has pointed out that in the last

decade, largely Chief Justices are alone
elevated and other deserving puisne judges
must be considered.

(c)

All High Court Judges who have completed 5

years should be eligible for elevation to
Supreme Court.

(d)

Three senior most judges of each High Court

should be eligible.

(e) 10% of the Supreme Court Judges should be from

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the Bar.

Appointments of the Supreme Court should be

based proportionately on the population of each
State.

(g)

Due regard should be given to specialisation for

elevation to Supreme Court also.

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(f)

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(h) Rules for inter-se seniority of High Court Judges

(i)

should be determined. For example, if two

persons are elevated on the same day, the
designation of one of them as seniority should
be taken. Similarly, various other parameters
should be considered to decide inter-se
seniority and these should be clearly fixed.

There should be a written examination for

elevation to Supreme Court.

8. Secretariat:8.1 The Union

of India has suggested that a proper

Secretariat must be established in the Supreme
Court and each High Court to ensure efficient
selection of judges. This must be a full time
secretariat with a senior officer, in-charge and such
other staff as may be necessary.

8.2

The Secretariat will collect background information

about Members of the Bar and District Court
Judges who are to be appointed to a High Court.

8.3

For existing judges to be appointed to the Supreme

Court, information will be collected as regards
number of judgements delivered, landmark cases,
quality of judgments and other relevant factors.

8.4 For collecting information of distinguished jurists to

the appointment of the Supreme Court information regarding number of publications and
other factors to assess academic credibility.

8.5 The secretariat should be completely independent of

the executive and will be responsible for preparing

and classifying information and preparing an upto
date data-base.

The Secretariat should have the same status and

independence Members of the Supreme Court
Registry.

8.7

Mr. F.S. Nariman has suggested creation of High

Court Appointment Committee with a Registrar.

8.8

There must be a Secretariat or an Appraisal

Committee on a permanent basis headed by a legal
academic who has been a director of the National
Judicial Academy or a Vice-Chancellor of a law
university.
No practicing lawyer shall be
appointed to the Secretariat. The Secretariat
should prepare reports on prospective appointees
which should include analysis of judgments,
backgrounds, quality of work as an advocate,
integrity, whether he has relatives practicing law or
are judges of High Court/Supreme Court.

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8.6

8.9

There should be full time broad based Search

Committee and Secretariat to assess the collegium
in making appointments.

8.10 Chief Justices M.N. Venkatachaliah and J.S. Verma

had also called for a Search Committee.

8.11

The Secretariat shall publish rules/regulations for

making applications and also complaints against
candidates.

9. Complaints:-

There is a strong need to make an outright

rejection of anonymous and frivolous
complaints. Only complaint supported with
material evidence should be considered.

(b)

Where the complaints are prima-facie correct,

they should be referred to the Executive for
investigation.

(c)

Making complaints: The names should be

disclosed to the public 30 days before
consideration by the collegium /High
Courts/Supreme Court. Within this period, the
public can write to the Secretariat/Appraisal
Committee about their complaints and
grievances against individual recommended
members. Similarly, in the case of names
proposed for elevation to the Supreme Court,
complaint should be permitted within a 30 day
period to the Secretariat/Appraisal Committee.

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(a)

(d) When complaints are made, the person concerned

should be given an opportunity to give an

explanation.

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(e) The examination of the complaint should be done

by panel of retired judges. The complainant
should be allowed to give oral/documentary
evidence and the candidates should be given an
opportunity to rebut the allegations. (The
examination can also be done by judges other
than those in the collegium)

(f)

Any
person
who
has
a
specific
information/complaint /evidence against the
shortlisted candidates should intimate the same
to the Secretariat.

(g)

The Secretariat can make an independent

investigation into the information so received.
Such information/ evidence can be taken into
account in preparing a further shortlist of the
candidates. Entire information as regards the
complaint should be placed before the
collegium by the secretariat.

(h)

Chief Justices M.N. Venkatachaliah and J.S.

Verma suggested a National Oversight

Committee for receiving complaints against all

judges of Supreme Court/High Court including
the Chief Justice of India. This Committee
would have scrutiny panels and Investigation
Committee/Panels to assess complaints and
frame definite charges.

10. Miscellaneous:(a) The recommendation regarding transfer of judges

has been included under this category.

The Union of India has suggested that transfer

should be made only on account of
administrative exigencies, conflict of interest
with relatives practicing at the Bar or at the
request of the concerned judge. It is further
suggested that:
All recommendations for transfer must be
made by the SC Collegium mandatorily
consulting both the Chief Justices of the
transferor and transferee High Courts.
All views should be recorded in writing
and communicated to the President for
transfer.

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(i)

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(b)

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(ii)

In case any complaint is received about the

working of the judge in a particular High Court,
the same should be dealt with as part of
disciplinary proceedings and in no case should the
complaint become the basis of transfer of a judge
to another High Court. This is to ensure adherence
to the decision in Supreme Court Advocates-onRecord Association v. Union of India, (1993) 4
SCC 441 (per Verma J. as he then was) that
transfers cannot be punitive.

(iii)

Every transfer order must record brief reasons

for the transfer. This is necessary to secure

confidence of the litigation public in both the
transferor and transferee High Courts.

(c)

The factors and criteria on the basis of which a

judge is transferred from one High Court to the
other must be disclosed on the website.

(d)

When a judge is transferred without consent,

reason for the transfer must be recorded and put

on the website.
The criteria and factors for appointing a puisne
judge must also be made known to the public
from the website.

(f)

A judge of a small High Court who has served

about 5 years can also be transferred so as to
acquire wider experience of judicial working in
a larger High Court like Allahabad, Calcutta,
Bombay, etc.

(g)

The Supreme Court collegium may transfer a

judge if facts and circumstances have come to
its notice that it is expedient in public interest
that a particular judge should be transferred.

(h)

Increase in number of women judges: This is

an urgent need to increase the number of
women judges. The percentage is very low in
most High Courts.

(j)

The collegium may include two senior members

of the Bar (specially elected for this purpose).

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(e)

(k)

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(l)

Strict time-line should be followed for making

appointments; this is a major reason for large
vacancies.

Use of technology to generate data-basis of

lawyers and judges by monitoring their
performances or various parameters.