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TAMILNADU NATIONAL LAW SCHOOL

TIRUCHIRAPALLI

JURISPRUDENCE
WRITTEN SUBMISSION FOR INTERNAL QUOTIENT
A.K.S.VISHNU
FOURTH SEMESTER

JURISPRUDENCE PROJECT
ON

ISSUES IN APPOINTMENT OF SUPREME


COURT AND HIGH COURT JUDGES
SUBMITTED TO:
Prof. Anshuman Singh
Professor,
SUBMITTED ON:
25-04-2016
SUBMITTED BY:
A.K.S.VISHNU
BA01400077

DECLARATION OF AUTHORSHIP

I, , hereby declare that this project titled ISSUES IN APPOINTMENT OF SUPREME COURT
AND HIGH COURT JUDGES submitted to Tamil Nadu National Law School,
Tiruchirappalli , is the record of an bonafide work done by me under the expert guidance of the
venerated Jurisprudence faculty of Tamil Nadu National Law School, Tiruchirappalli.
All authentic information furnished in the project is true to the best of my knowledge and belief.

ACKNOWLEDGEMENT

First of all, I thank my Jurisprudence Professor Mr.Anshuman Singh for having allotted me such
a challenging and dynamic topic. Even repaying him through mere words in beyond the domain
of my lexicon that was the backbone during all hurdles that I confronted during the making of
this project, hence I am forever duly indebted to him as a student.
Also, I am grateful to the staff and administration of Tamil Nadu National Law School who
contributed useful resources tremendously in the making of this project by providing library
infrastructure and data connections.
This entire project wouldnt have been possible without the involvement of precious inputs of
my parents and friends who sacrificed their valuable time to guide and advice me at all times of
need to make this project a successful one.
Last but not the least, I am also grateful to God for giving me the courage and strength to
withstand all hindrances during this project and make it successfully finally since its inception.

Table of Contents
A. TABLE OF CASES.........................................................................................................7
CHAPTER I - INTRODUCTION
CHAPTER II - THE NJAC ITS EMERGENCE AND THE FLAWS A MICROCOSM
OF THE REPRESENTATIONS BEFORE AND AGAINST THE COLLEGIUM
................................................................................................................................................
2.1 Reports and Bills..............................................................................................................
2.1.1 Reports..........................................................................................................................
2.1.2 Bills...............................................................................................................................
2.2 Judiciary and the Debate on the Appointment of Judges.................................................
2.2.1 Shamsher Singh Case....................................................................................................
2.2.2 S.P. Gupta Case.............................................................................................................
2.2.3 Subhash Sharma Case...................................................................................................
2.2.4 Supreme Court Advocates-on-Record Association Case..............................................
2.2.5 In Re Presidential Reference No.1 of 1998...................................................................
2.3 The National Judicial Appointments Commission Act, 2014 and The Constitution
(Ninety-Ninth Amendment) Act, 2014...................................................................................
2.3.1 The Provisions of the Act..............................................................................................
2.4 The Judicial Ruling in Support of the Collegium Supreme Court Advocates-on-RecordAssociation Case....................................................................................................................
2.4.1 Justice Khehar Singh.....................................................................................................
2.4.2 Justice Madan.B.Lokur.................................................................................................
2.4.3 Justice Kurian Joseph....................................................................................................
2.4.4 Justice Adarsh Kumar Goel...........................................................................................
2.4.5 Justice Chelameshwar Dissenting..............................................................................

CHAPTER III BETTERMENT TO THE EXSTING COLLEGIUM SYSTEM

3.2 Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium......................................................
3.2.1 Transparency and Confidentiality.................................................................................
3.2.2 Eligibility Criterion.......................................................................................................
3.2.3 Institutional Framework to tackle Inefficiency and Corruption....................................
3.2.4 All India Judicial Service..............................................................................................
CHAPTER IV - CONCLUSION........................................................................................
CHAPTER V - BIBLIOGRAPHY......................................................................................
Primary Sources.....................................................................................................................
Secondary Sources.................................................................................................................
Webliography.........................................................................................................................

A. TABLE OF CASES
1.
2.
3.
4.

Shamsher Singh v State of Punjab (1974) (2) SCC 831


S.P. Gupta v President Of India And Ors, (1981) Suppl. (1) SCC 87
Subhash Sharma v Union of India, 1991(1) Suppl. SCC 574
Supreme Court Advocates-on-Record Association and Anr v Union of India ,
(1993) 4 SCC 441
5. In re Special Reference No.1 of 1998, (1998) 7 SCC 739
6. Supreme Court Advocates-on-Record Association and Anr v Union of India, W.P. (C) No.
13 of 2015
7. All India Judges Association v Union of India, AIR 1992 SC 165
8. K.H.Siraj v High Court of Kerala, AIR 2006 SC 239

CHAPTER I

INTRODUCTION:
The Indian judiciary is one of the most powerful in the world. The conflict arose between the
judiciary on one side, and the executive and the legislative wings of the government on the other
side.The main controversy regarding judicial appointment is on whose opinion is the power to
appoint was the issue. Article 124 and 217 of the constitution of India deal with the appointment
of Supreme court and High court judges. The institution, the judiciary or parliament, is in a
position to protect, damage, or destroy it.1 The then Prime Minister Indira Gandhi and her works
which resulted in a number of politicized judicial appointments and also the controversial
elevation2 of Justice A.N.Ray over three other Senior Justices to the position of Chief Justice
would open a can of worms that was in the emergence for a long time. What followed was a slew
of judgments that would go on to establish a new method for the appointment of judges, namely
the Collegium System which was formulated in the Second Judges Case and then further
legitimised in the Third Judges Case. At the same time, the Parliament was trying all it can to
reverse the principles laid down by the apex court in order to bring about their involvement in
the appointment of judges. Claims and Counter-Claims were exchanged which then culminated
in the NJAC Bill. This particular bill was a result of years of problems within the Collegium
System. The system turned out to be archaic and also the lack of transparency and accountability
would turn out to be very problematic. Arguments were made regarding the closed doors
functioning of the Collegium giving rise to claims of corruption and scandalous appointments as
such. Many saw this as a step down from the excellent panel of judges existing previously, prior
to this system coming into being. The new NJAC would comprise of The Chief Justice, Two
other senior most judges, The Law minister and two eminent persons appointed by the Prime
Minister, The leader of Opposition or the Chief Justice of India and the working would be such
that, if any two members veto a decision then it would be considered as a veto of the candidate
meaning the appointment cannot go forward. Much of the controversy occurred due to the
1See B.N.Kirpal et al., Supreme But Not Infallible - Essays in Honour of the Supreme Court of India, 1
(7th impression, 2015) Oxford University Press, New Delhi
2 Justice A.N.Ray had voted in favour of Parliamentary Supremacy in the Keshvananda Bharti Case
which made him good in the eyes of Indira resulting in his Controversial Elevation to the post of Chief
Justice.

presence of the eminent persons in particular with claims that there may be political influence in
their appointment thereby politicizing the judicial atmosphere as such.
Eminent scholars3, jurists and the judiciary itself saw this as an attempt being made by the
legislature to involve in the appointment of judges to make the process occur as per their whims
and fantasies. The scars acquired from the Indira Gandhi era remained, thereby resulting in the
judiciary holding as a majority that the involvement of the executive will undermine the
independence of the judiciary and struck down the NJAC. However, the Court recognised the
fact that there remained deeply entrenched problems with the Collegium system itself, which it
intended to resolve in order to improve upon the existing system of judicial appointments.

CHAPTER II
THE NJAC ITS EMERGENCE AND THE FLAWS
Through the course of this chapter, we shall attempt to take a look at the system of appointment
of judiciary post the taking up of the Constitution in the year 1950. Over the past years, a number
of attempts have been made in furtherance of trying to make the judiciary a more efficient and
functional body that can make a difference when so required. All of these were made and
proposed as separate implementations that would then run as a corollary to the main method of
appointment of judges. Some of these recommendations would have been made as an
improvement on the then existing model of appointment, whether it be before the Collegium
system was introduced for the appointment of the judges. This is taken forward in such a way by
the researcher so as to track the route taken by the legislature and executive with regard to the
appointment of judges and accordingly take the positive aspects around these recommendations
and try to incorporate the same in the forthcoming chapters as such. Towards the end of this
chapter, the researcher shall also discuss about the National Judicial Appointments Commission,
its provisions and as to what it proposes to do particularly in order to understand as to why all
3 Suhrith Parthasarathy, Safeguarding Judicial Autonomy, The Hindu, August 25, 2014,
http://www.thehindu.com/opinion/lead/national-judicial-appointments-commission-bill-safeguarding-judicialautonomy/article6347268.ece

these methods that have been proposed should not be accepted and the Collegium must be
upheld as validated.
Report and Bills
Report
121st Report of the Law Commission of India
It can be said quite confidently that it is under this particular report of the Law Commission that
the very system of the origin of the Judicial Commission came ahead as a recommendation as a
formal recommendation. Prior to this there were merely mentions of the same, however, in the
instant case, the report would make the step forward in the recommendations so made by the
Commission itself. Accordingly, the commission would state that the successful working of a
parliamentary democracy under a written constitution with a bill of rights, presupposes the
judiciary is independent4 Particularly, the commission also recognized that the judiciary and the
independence of the judiciary was the foremost beacon of the constitution and would therefore
mean that the same cannot be properly maintained unless the appointment process is refined.
In para 7.7, the Commission for the first time recommends the formation of a body for the
appointment of the judges and the body shall be named as the National Judicial Service
Commission and says that such a commission would be made on the basis of the participatory
model that would include the opinion of the executive as well and would consist, according to
para 7.10, the Chief Justice of India as the chairman, with three senior most judges, the preceding
Chief Justice of India, the Minister of law and justice and 3 chief justice of the High Courts of
the different states selected on the basis of seniority, the Attorney General of India and also a
person of outstanding legal acumen. Accordingly, this commission would consist of 11 members
and their deliberations would result in the recommendations so made by the commission itself.
However, the same commission in times when the High Court judges are to be selected, are to
consult with the Chief Justice of that High Court and the Chief Minister of that State in which it

4 One hundred and Twenty First Report of the Law Commission of India, on a New Forum for Judicial
Appointments, July 1987 at p 5 Para 1.17

is situated in, according to para 7.11 in order to arrive at a sufficient conclusion with regards to
the appointment of judges itself.
The Criterion presented to the Commission for the selection of the Supreme Court and the High
Court Judges are as follows:

1.
2.
3.
4.

Deep and abiding faith in the constitutional process and constitutional philosophy
Legal acumen and ability to deal with complex questions of law5
A man of stature, personality, reputation and unquestioned integrity and good character
Scale of awareness of the perceived needs of the society6

Although these criterions could be said that they are hardly tangible criterion, it would serve as a
scale of measurement of the eligibility of the candidate and it is to note that this was for the first
time that the system was so designed as to set down certain or at least recommend some changes
to the existing system of selection or appointment of the candidates.

Bills
67th Constitutional Amendment Bill
This particular Bill is important primarily because of the fact that it proposed the creation of a
National Judicial Commission composed of serving judges headed by the CJI. This particular
Bill could be seen as the one that took forward the recommendations from the preceding Law
Commission report that we had analyzed for the purpose of the study at hand. Accordingly, it
provided for the creation of the National Judicial Commission, but the composition was different
from that of the one proposed by the preceding Law Commission. For the purpose of this Bill, it
was proposed that the composition of the same in case of selection of the Supreme Court Judges
would be the Chief Justice and two of the senior most colleagues of him and for the High Court

5 Refer Ch.IV
6 Supra note 71 at p 43 para 7.13

judges would be the Chief Justice of India, two of the senior most colleagues, the Chief Minister,
Chief Justice of the relevant High Court along with his colleagues to make the decision.
This Bill tabled in the year 1990 but would not become an act, but would be important to note
because of the fact that the bill would be a composition of a Judicial Commission that was solely
based on the membership of the judicial members itself with the exception of the Chief Minister
which shows the intent of such legislature which over the years has performed a massive U-turn
and made a decision to derogate the independence of judiciary which it rooted for by itself.
All the Acts and Bills that were made following this particular bill were proposed reforms that
were made after the institution and functioning of the Collegium system and therefore would
work as a corollary to the same system. Nevertheless, for the purpose of this chapter, it would be
important to consider these Bills to look at the attempts made by the legislature to change or
introduce reforms into the concept of judicial appointments.

Judiciary and the Debate on the Appointment of Judges

The Course of this sub topic will revolve around the various judgments in which the Supreme
Court has given its own interpretation with regard to the Appointment of Judges and the mode of
Appointment of Judges. The cases have been discussed in brief, with consideration given only to
the relevant provisions in order to enable the reader to understand the position of the Judiciary as
it has evolved over time.
Shamsher Singh Case7
A 7 judge Constitution Bench of the Supreme Court that was headed by Justice A.N. Ray
provided a key factor regarding the judiciarys interpretation of the term relating to the
appointment of judges. Accordingly, it was held by the Court in this case that,
The independence of the Judiciary, which is a cardinal principle of the Constitution and has
been relied on to justify the deviation, is guarded by the relevant Article making consultation
with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest
7 Shamsher Singh v. State of Punjab , 1974( 2) SCC 831

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 a 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.8
Basically, the point that is made by the Supreme Court in this case is that, the independence of
judiciary is key to the constitutional framework of the nation and accordingly, the Consultation
process with the Chief Justice of India would be considered as obligatory and it holds much
value in the case of decision making processes of the appointment of judges. This is very
important and relevant the research at hand because of the fact that the judiciary has for now
interpreted the judiciarys independence in terms of the advise that is tendered by the Chief
Justice to the President in cases of appointment. However, forthcoming cases would signal
certain changes in the same scenario.

S.P. Gupta Case9

The S.P.Gupta case was taken up by a 5 judge bench of the Supreme Court and thereby a few
postulates was laid down by the Supreme Court accordingly which were considered to be very
controversial. This case is otherwise referred to as the First Judges Case.
In this case, several writ petitions were filed in the various high courts under Article 226 by
several lawyers. All these were transferred to the Supreme Court for disposal. Although the chief
aspect that was dealt with by the court was with regards to the transfer of judges in this case, this
case would also talk about the appointment of judges and the opinion on the same process which
is going to be the point of our study.

8 Id. at p 882 Para 149


9 S.P. Gupta v. President of India and Ors., 1981 Suppl. (1) SCC 87

The primary question faced by the Supreme Court was as to whether the process of appointment
of judges, would involve within itself, the concept of primacy of the opinion given by the person
who is participating in that particular process?
The Supreme Court in the opinion of the researcher took a retrograde step in this particular
judgment because of the fact that the majority opinion in this case held that the opinion of the
Chief Justice of India and the Chief Justice of the High Court as the case maybe, was merely
consultative and not any more than that. Particularly, it was held that the power of appointment
would then vest solely with the Central Government and not the Judiciary itself. 10 Accordingly,
this was said to be a literal interpretation of the word consultation by the judiciary and also that
such literal meanings being taken into consideration would mean that the executive primacy was
being rooted for by the Court in this regard of the appointment of the judges as such. With
Reference to Article 124(2) and Article 217(1) it was to be so held that the Supreme Court would
allow only the mere consultation power to the Chief Justice of India and the Chief Justice of the
High Court as the case may be.
In Para 29, Page 226 of the Judgment, Justice P.N.Bhagwati states that,
It is obvious on a plain reading of clause (2) of Article 124 that it is the President, which in
effect and substance means the Central Government, which is empowered by the Constitution to
appoint Judges of the Supreme Court.
And in the same paragraph he again is quoted as stating that,
It is clear on a plain reading of these two articles that the Chief Justice of India, the Chief
Justice of the High court, and such other Judges of the High Courts and of the Supreme Court as
the Central Government may deem it necessary to consult, are merely constitutional
functionaries having a consultative role and the power of appointment resides solely and
exclusively in the Central Government.
These two aforementioned paragraphs can be used to satisfactorily sum up the arguments of the
Supreme Court. In Simple terms, it was said that the participation of the judicial elements in the
case of appointment of judges was merely consultative and not binding or having any particular
10 Id.

value that binds the judgment. The Ultimate power therefore lies in the hands of the Central
Government. This judgment thus gave almost near unfettered power to the legislature and the
executive which in turn would create more problems than it solves
Subhash Sharma Case11

Subhash Sharma case formed the essential linkage between two significant cases that dealt with
the concept of judicial independence and the interpretation of the judiciary with regard to the
same as linked with the appointment of the judges. A 3 judge bench headed by Chief Justice
Misra set up an important perspective that lay behind the concept of the judicial independence as
such. The case was set up because of the Public Interest Litigations that were filed under Article
32 of the Constitution of India, one by the advocate practicing in the court, Subhash Sharma, the
second by the Supreme Court Advocates on Record Association and the last by the Honorary
Secretary of the Bombay Bar Association with regards to the back logs in the filling up of
vacancies.
In this case, it was held that the case of S.P. Gupta and the rationale from the case has to be dealt
with by setting up a larger bench as it was of constitutional importance. It was emphasised that
an independent, non-political judiciary was key to sustaining a democratic political system that
has been adopted in India.
The Supreme Court in Para 31 Page 590 gave its opinion by saying that,
Consistent with the constitutional purpose and process it becomes imperative that the role of
the institution of the Chief Justice of India be recognised as of crucial importance in the matter
of appointments to the Supreme Court and the High Court of the States. We are of the view that
this aspect dealt with in Gupta's case requires re-consideration by a larger bench.
Also, in the due course of the judgment, it was also stated that the consultation of the Chief
Justice is something that has been incorporated in the constitution and such a provision cannot be
derogated or taken away, merely by the usage of the linguistic interpretations.12
11 Subhash Sharma & Ors. v. Union of India, 1991(1) Suppl. SCC 574
12 Id. at p 591 Para 31

Similarly, in the case it was consequently held that


Constitutional phraseology of "consultation" has to be understood and expounded consistent
with and to promote this constitutional spirit. These implications are, indeed, vital. The
constitutional values cannot be whittled down by calling the appointments of judges as an
executive act. The appointment is rather the result of collective, constitutional process. It is a
participatory constitutional function. It is, perhaps, inappropriate to refer to any `power' or
`right' to appoint judges13
There are two paragraphs in the judgment that are very crucial to consideration of the following
Second Judges Case.
Para 46 provided for the reconsideration of the S.P.Gupta cae by stating that, the correctness of
the opinion in S.P.Gupta case relating to the status and importance of consultation, the primacy
of the position the Chief Justice of India and the view that the fixation of Judge strength is not
justiciable and should be considered by a larger bench.
In Para 50, the Supreme Court creates a particularly important reference when it was summing
up the case as such.
Para 50 says, We are aware of the position that the setting up of the National Judicial
Commission through a Constitutional Amendment is in contemplation. In the event of the
amendment being carried out and a National Judicial Commission being set up, the correctness
of the ratio in S.P.Gupta case of the status of the Chief Justice of India may not be necessary to
be examined in view of the fact that by amendment the Chief Justice of India would become the
Chairman of the Commission. In case the Commission is not constituted, the two questions
indicated above which are of vital importance to the efficient functioning of the judicial system
in the country require consideration and there is an element of immediacy in the matter. We
therefore suggest that the writ petitionbe taken up for hearing at an early date and preferably
before the end of this year. We hope and trust that the Supreme Court Advocates-on-RecordAssociation would continue to evince interest in the matter but if our expectations are belied, this
being in the nature of a public interest litigation, someone interested in the restitution of the
issues would be brought on record to effectively continue the proceeding and assist the court.
13 Id. at p 642

In brief, the important provision that would arise out of the aforementioned paragraph is that
firstly, the Court feels that, in case of such an amendment as the setting up of a commission
under the Chief Justice of India then the matter of a Collegium system would never even be have
to dealt with and the second is that, the second is that, through the last few lines, the Court has
effectively set up the Second Judges case by asking any person who is interested to file a PIL in
furtherance of which the case would ensue, thereby indirectly invoking interest in the individuals
to go and seek for the case, which would turn out to be one of the most significant cases.
Accordingly, to sum up the arguments made in this case, it would be sufficient to say that, this
case through its interpretation by the apex court was able to set up a system of constitutional
perspective based on which the forthcoming cases were to be dealt with accordingly.

Supreme Court Advocates-on-Record Association Case14


This case was decided on by a Nine Judge Bench of the Supreme Court 15 and the same was
created as a consequence of the previous case which recommended the facts and interpretation in
the S.P. Gupta case to be taken up by a larger bench due to its importance. The most important
mandate that lay behind this judgment was the necessity of saving the judiciary from the clutches
of the executive after the S.P. Gupta case had rooted in the concept of executive supremacy in the
mode of appointment of judges. This case is otherwise referred to as the Second Judges Case.
Justice Verma, giving the majority opinion, sought to interpret the constitutional provisions with
regards to the foundational and basic structure of our constitution. 16 And therefore the majority
opinion chose to give a wider meaning to the provisions that are related to the judiciary and
thereby the word consultation in the Article 217(1) was given a wider interpretation by the
judges in this case.
This case effectively overruled the criterion that was placed in the S.P. Gupta case and held in
Para 451 Page 693, very crucially that,
14 Supreme Court Advocates-on-Record Association v. Union of India , (1993) 4 SCC 441
15 Id.
16 Id. at p 431

The primary aim must be to reach an agreed decision taking into account the views of all the
consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier
stated, is best suited to know the worth of the appointee. No question of primacy would arise
when the decision is reached in this manner by consensus, without any difference of opinion.
However, if conflicting opinions emerge at the end of the process, then only the question of
giving primacy to the opinion of any of the consultees arises. For reason indicated earlier,
primacy to the executive is negatived by the historical change and the nature of functions
required to be performed by each. The primacy must, therefore, lie in the final opinion of the
Chief Justice of India, unless for very good reasons known to the executive and disclosed to the
Chief Justice of India, that appointment is not considered to be suitable.
The primary aim behind this particular excerpt is to signify that the judiciary as represented by
the Chief Justice, possesses the knowhow of the judicial framework and the constitutional
proceedings and therefore it is to be seen that the judiciary needs to get some kind of primacy
accorded to its opinion so that the same can be incorporated as a significant portion involved in
the process of appointment of judges. Particularly, it is imperative to note that on what occasion
the primacy of the judicial opinion occurs. It is to be seen that such instance of primacy is said to
occur only when the consensus is not able to be reached between the executive and the judiciary
and until then, it is to be said that, it is merely a co-equal status being accorded to both the parties
as such.
Para 438 of the judgement would also be accepting of the same opinion.
Para 438 in Page 688 states that,
The debate on primacy is intended to determine, who amongst the constitutional functionaries
involved in the integrated process of appointments is best equipped to discharge the greater
burden attached to the role of primacy, of making the proper choice; and this debate is not to
determine who between them is entitled to greater importance or is to take the winner's prize at
the end of the debate. The task before us has to be performed with this perception.
Now, this case saw the culmination of the judicial opinion to give breath to a new system of the
judiciary that is to be responsible for the appointment of the judges.
Accordingly, in Para 456 in Page 695, it had been stated that,

it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this
context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that
is to say, after taking into account the views of his senior colleagues who are required to be
consulted by him for the formation of his opinion
This particular statement set up the new system of the judicature accordingly because of the fact
that now, up until this point, the consultation of the Chief Justice of India was thought to be only
with the Chief Justice himself except for the cases of the law commission report. But now, it was
held by the apex court categorically that the Chief Justice when making recommendation would
have to consult with the senior colleagues of the same court. Likewise in the case of the
appointment of judges to the High Court, the Chief justice would have to consult with those
judges in the Supreme Court that are conversant with the affairs of the concerned High Court and
followed by the getting views of the senior judges of the High Court.17
Particularly, this case was so dealt with in accordance with the principle of taking away the
system of executive supremacy and to bring out a message that was sans the political influence in
the appointment of the judges and the initiation of the proposal also was to made by the Chief
Justice of India for the Supreme Court judges and the Chief Justice of the respective High Courts
for the purpose of the High Courts.

In Re Presidential Reference No.1 of 199818


The ruling of the Supreme Court in the previous instances was made and elaborated further in
this particular case and it was resultantly said to give rise to the Collegium System as fully
operational. A nine judge bench of the Supreme Court 19 referred to the case on the reference
made by the President in the exercise of his power under Article 143(1) 20 to study the postulates
laid down as under the previous case and the previous circumstances as such in order to arrive at
a conclusion.
17 Id. at p 425
18 In Re Presidential Reference No.1 of 1998, (1998) 7 SCC 739
19 Id.

Accordingly, the Court considered the different opinions and clarified that the opinion of the
Chief Justice of India is not solely his alone, but of the opinion of the judiciary which means that
there was a need for a plurality in its formation and by this the court means that the opinion of
the Chief Justice is not his own personal opinion but the opinion of such other members as is
required for the same. With regards to the same it was so held that, the Chief Justice of India to
form his opinion in regard to a person to be recommended for the office of the High Court
would have to be in consultation with his two senior most judges and along with that, the views
of the Chief Justice of the High Court, the views of the other High Court judges and the views of
the Supreme Court judges who are conversant with the affairs of the concerned High Court are to
be taken into consideration in writing and conveyed to the Government of India along with the
recommendation.21
Additionally it was also said that the Collegium would make its recommendation on the basis of
consensus but in the case of difference of opinion, no one would be appointed as such in the case
of the Chief Justice of India dissenting to it and also if two or more members of the Collegium
dissent then the Chief Justice of India should not persist on such recommendation.22
Similarly, it is to be understood that the Chief Justice when making his opinion on the basis o
such group consultation, there are times when there is a likelihood of arbitrariness as such and in
view of the same it has been said that, the judicial review is available at two instances. The first
instance is when the appointment is recommended to be made to the Supreme Court and under
such instance, it could be said that the judicial review exists when such recommendation so made
is not the decision of the Chief Justice of India and his senior most colleagues. Similarly, in the
case of appointment of High Court Judges it is said that the option of judicial review is available
in cases where the senior most Supreme Court judge who is conversant with the affairs of the
State in which the High Court is situated and accordingly, the appointee is said to be disqualified
20 Article 143(1), Constitution of India, 1950 - If at any time it appears to the President that a question of
law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it
is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court
for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion
thereon
21 See M.P.Jain, Indian Constitutional Law, 584 (7th Edition, 2014) LexisNexis, Haryana
22 See D.D.Basu, Shorter Constitution of India, Volume 1 757 (14th Edition, 2014) LexisNexis, Haryana

also when the candidate has been picked on the basis of non-legitimate conditions or grounds
thereby making it a subject of judicial review.23 The Court therefore made it a mandate and
thereby also a part of the basic structure of the constitution by the case at hand thereby making it
difficult to amend for the legislature.

Thus the importance of this case as the Third Judges cases was to specifically lay down and
consolidate the idea of the Collegium system and to consequently allow such a system to
function. This series of cases would be the reason behind the implementation of the NJAC bill
because of the fact that the option of having a commission for appointment of judges was
forgotten and left behind ever since the framers debated about the same and also restricted to
opinions in certain law commission reports as that we have seen.
Following this the researcher is going to present the provisions as presented in the National
Judicial Appointments Commission Act of 2014 and also understand as to what the apex court
felt about the same Act that was passed.

The National Judicial Appointments Commission Act, 2014 and The Constitution (Ninety-Ninth
Amendment) Act, 2014
The formation of the National Judicial Appointments Commission was the contemporary
emergence that had formulated for years as against the existing system of appointment of judges.
Accordingly, the National Judicial Appointments Commission was attempted to be brought in
through a Constitutional Amendment, the Constitution (One Hundred and Twenty First
Amendment) Act of 2014 and an ordinary legislation which is the National Judicial
Appointments Commission Act of 2014.
Both of these, were notified by the Gazette on the same day, the day being the 31 st of December,
2014.

23 Id.

While presenting the Bill for discussion in front of the Lok Sabha, stating as reasons for the
formation of such a Commission, the then Minister of Communications and Information
Technology and Minister of Law and Justice, Shri Ravi Shankar Prasad, said that
There must be a healthy blend, namely, the President must not have unbridled powers and the
Chief Justice also must not have unbridled powers; there must be a healthy co-ordination and
consultation..24
He was worried that the role of the executive which the constitution intended to be at a very high
pedestal would be severely limited by following the Collegium system of appointment of the
members of the judiciary. Particularly, he felt that, as a result of the Collegium, the quality of the
judges that came through were severely flawed and also not well versed with the law and
therefore, the Collegium must therefore be scrapped for good. To him, the sanctity of the
parliament25 was equally important and therefore there was a need for proper accountability
within the system of the judiciary. Accordingly, he said that the process of appointments was to
be a joint participatory exercise and proposed the formation of the Commission which we shall
see later. However, some of the points he raised was that in the selection of the judges, from
High Court to the Supreme Court, apart from seniority, there is an extent of ability and merit that
is needed to be considered along with the same.26
One of the main points that was instituted along with the formation of the NJAC was that, if any
two members of the Commission are against the selection of a candidate then the same can be
counted as a veto and no further discussion would thereby ensue. However, Shri. Veerappa Moily
tried to point out the flaw in creating such a provision because he felt that,
That is the veto power. This is what the Judiciary is worried about. It may end up with no
decision at all. It may be impractical or this may give rise to a lot of conflicts between the
Judiciary and the Executive.27

24See Lok Sabha Debates on The Constitution ( One Hundred and Twenty First Amendment) Bill, 2014
and The National Judicial Appointments Commission Bill, 2014 page 9
25 Id. at p 12
26 Id. at p 16

He argued that there would be no efficiency within the system if such a veto power were to be
allowed to function within the constructs of the System.
Similarly, with regard to the provision for the eminent persons, as will be seen, he felt that the
lack of any guidelines for the selection of such eminent persons would in turn result in chaos and
also an improper step which would lead to a situation where anybody can be eminent person28
Quite significantly he also wanted to reform the system from the bottom up and proposed for the
creation of a All India Judicial Service which would be on par with other civil service
examinations and start cleaning up the mess from the bottom as he felt that, the system itself is
totally lacking here.29 The same was also supported by Mr. Thambidurai who said that bringing
in such a Service will be a good reform.30
These opinions were crucial to be noted with regards to the discussion on the National Judicial
Appointments Commission primarily because of the fact that, despite being of different parties
and the ideas also being different, the legislature had in it opinion a meeting of minds when it felt
that the time was up for the Collegium system and that the Collegium system must go and
therefore a substitute was required. The opinion of Shri. Veerappa Moily in particular however, is
in the opinion of the researcher of much significance because of the fact that it was only his line
of argument that was taken up by the apex court in a later case in order to strike down the NJAC
and the proposals to reform the system were also made in furtherance of the same opinion.
General consensus was that, there was an inherent need for reform in the system itself, as such.
The Provisions of the Act
Firstly, there is a need to examine the provisions of the Constitution (One Hundred and Twenty
First Amendment) Act of 2014 which later became an Act, though now has been repealed.

27 Id. at p 23
28 Id. at p 24
29 Id. at p 30
30 Id. at p 38

Consequently, a number of proposals were made to shake up the existing constitutional


procedure of appointment of judges.31
The First provision that it paved way for was the substitution made in the Article 124(2) wherein
it was now stated that the President would make such appointments, on the recommendation of
the National Judicial Appointments Commission as in Article 124A so inserted.
Article 124A said that, the composition of the Commission would be such that, the Chief Justice
of India would be the ex officio chairman, then the two other senior judges of the supreme court
next to the Chief Justice, the Union minister of Law and Justice and also two eminent persons as
to be nominated by the Committee consisting of the Prime Minister, Chief Justice of India and
the Leader of the Opposition in the House of People and in their absence the leader of the largest
opposition party in the House of People. It was also provided that one of the two eminent persons
was to be nominated from amongst the persons belonging to the SC/ST/OBC/Minorities/Women
and both of them would be selected for a term of 3 years as such. 32 The functions of the
Commission thereby being to appoint, select and promote such judges as the case may be was
provided by Article 124B while 124C33 provided one of the most controversial provisions which
said that the Parliament by law may regulate the procedure as and when it pleases to, which
basically means that, the ultimate power is vested in the Parliament as the chief authority and
they are now completely in control of whatever the proceedings that may take place and one day
might also choose to change the composition and mode of appointment such that, the judiciary is
completely left out, meaning that the same was attempted to be inserted by the parliament
through the backdoor mechanism which is highly problematic.
Similar amendments were proposed to the state judicature and the procedures thereupon to
include within itself the NJAC vide 124A.

31 The Constitution (One hundred and twenty first Amendment) Act, 2014
32 Id. 3 (India)
33 Id. 3 (India)

The Judicial Ruling in Support of the Collegium Supreme Court Advocates-on-RecordAssociation Case34
In probably the most landmark case since the time of the Keshvanand Bharti case, the
Constitution Bench of the Supreme Court considered the Amendment made to the constitution in
furtherance of the formation of the National Judicial Appointments Commission and would
consider the arguments in the case accordingly. For the purpose of the research at hand, it is
necessary to consider the opinion of the judges involved in the case with regards to the
appointment of judges and thereby have only a brief overview of the opinion of each of the
judges as the same is what is necessary for the research at hand. It was a decision made by a 5
judge bench and the opinions were made such that, there was a 4:1 majority with Justice
Chelameshwar dissenting.

Justice Khehar Singh


Justice Khehar was completely in support of the concept of Judicial independence and also in
favour of the Collegium system because it supports the Judicial independence better. In para 8 of
the judgment he said that,
The independence of judiciary is inextricably linked and connected with the constitutional
process of appointment of judges of the higher judiciary. Independence of Judiciary is the basic
feature of our Constitution and if it means what we have discussed above, then the Framers of
the Constitution could have never intended to give this power to the executive.35
Consequently, he would say that the attempt by the legislature was not to make any peripheral
change to the constitution but rather a substantial change would seemingly be irreversible.
Therefore he felt that there was a need to understand whether through the amendment the power
of the Parliament was so enlarged as to obliterated any or all of the Constitutional limitations
34 Supreme Court Advocates-on-Record-Association Case v. Union of India, (WP(Civil) No.13 of 2015)
35 Id. at p 182

so placed and said that when so analysed the Amendment proposed by the legislature in the
instant case would fall foul to the constitutional limitations as such.
Further, quoting another judgment, Justice Khehar would state in Para 15 that,
The Constitution, according to the respondents, is not merely what it says. It is what the last
interpretation of the relevant provision of the Constitution given by the Supreme Court which
prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the
Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed
by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted36
By so stating, he said that the Constitutions last interpretation being the Third Judges case, the
sane would then form a part of the basic structure of the Constitution and therefore the basic
structure of the Constitution cannot be changed as it would limit the amendment powers of the
Parliament as such. Additionally, he would state that the Collegium might be a creation of the
judiciary but the same is the creation of the judiciarys interpretation of the Constitution itself
and would therefore be validated in the presence of such a system as such.
Additionally, he found a problem with the provision for two eminent persons being provided in
the Commission because of the fact that, there are more than 70 statutes that have the eminent
persons clause and out of which over 67 of them would be related to this field and therefore the
power would be arbitrary owing to the fact that there was no clear provision for the eminent
person and the same would give rise to exploitation of the provisions as such.
The most significant point that he raised was in para 85 wherein he said that,
It cannot be gainsaid that the CJI being the head of the Indian Judiciary and paterfamilias of
the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the
independence of the judiciary and he in that capacity evaluates the merit of the candidate with
regard to his/her professional attainments, legal ability etc. and offers his opinion. Therefore,
there cannot be any justification in scanning that opinion of the CJI by applying a
superimposition test under the guise of over guarding the judiciary37
36 Id. at p 192
37 Id. at p 202

This is quite significant because Justice Khehar recognizes that the CJI is the head of the
judiciary and that there can be no power that can take away the power of the judiciary with
respect to its independence. Significantly, he laid down that if there are flaws in the Collegium
then the same can be met with and rectified on a case to case basis as such.

Justice Madan.B.Lokur

Justice Lokur had made his arguments in favour of striking down the Amendment to the
Constitution and he thereby felt that the Collegium system with its corrections was the way to go
forward with the case in point as such.
Initially itself, he believes that, the Constitution (Ninety-ninth Amendment) Act, 2014 (for short
the 99th Constitution Amendment Act) alters the basic structure of the Constitution by
introducing substantive changes in the appointment of judges to the Supreme Court and the High
Courts and rewriting Article 124(2) and Article 217(1) of the Constitution, thereby seriously
compromising the independence of the judiciary. Consequently, the 99th Constitution
Amendment Act is unconstitutional. Since the 99th Constitution Amendment Act is
unconstitutional, the National Judicial Appointments Commission Act, 2014 (for short the NJAC
Act) which is the child of the 99th Constitution Amendment Act cannot independently survive on
the statute books.38
This would thereby make his intention clear about what he feels about the Amendment that has
been proposed by the Parliament in the case at hand.
He was particularly annoyed of the fact that the Act had changed the status quo by substituting
the power of the Chief Justice to intimate any case of vacancy with that of the Central
Government would meant that there was a radical change and the same cannot be considered as
it would be a case of power of the Chief Justice being completely whittled down virtually to a
38 Id. at p 591 para 2

vanishing point.39 Also, he felt that this Commission would take away the independence of the
judiciary as was thought of by the framers of our Constitution to such extent that the shared
responsibility system also was being decapitated by the proposed amendment and felt that the
NJAC was no stairway to heaven and was downgrading the power of both the Chief Justice
and the President alike.40
Further, in his conclusions, he compared the opinions of Dr. Ambdedkar and the rationale laid
down in the Second Judges case and the Third Judges Case and held that the amendment that was
being proposed was taking away the constitutional authority of the Chief Justice of India and
placed it on a platter for the NJAC to exploit41
He thereby felt that the proposed amendment and the legislation would fall foul to the
Constitution itself and therefore the Collegium system so proposed would then be held as valid
and constitutional. To that extent he said that the present system therefore requires some fine
tuning and therefore has requested the Counsel in this case to collect suggestions and
submissions to put the case forward to make the system a transparent and better system
altogether.
Justice Kurian Joseph

Justice Kurian Joseph made the argument in favour of the Collegium system and wanted to strike
down the proposed Amendment as such.
Quite graphically, he held in his judgment that,
The Supreme Court belongs to the powers central of the Judiciary and the permissible checks
and balances are provided to other branches lie in the sphere of appointment. If the alignment of
tectonic plates on distribution of powers is disturbed, it will quake the Constitution. Once the

39 Id. at p 881 para 548


40 Id. at p 879 para 544
41Id. at p 891 para 567

constitutional structure is shaken, democracy collapses. That is our own painful history of the
Emergency.42
He was of the opinion that the Supreme Court and the High Court as the case may be were the
watchdog of the Constitution and thereafter it is to be seen that the derogation of such powers
that were vested by the Constitution in the members of the judiciary cannot be taken away and
thereby be derogated as well. He was of the opinion that the same cannot be allowed as
democracy itself would then collapse. He said that any attempt that is made to dilute the basic
structure, however remote the possibility would be, the same has to be nipped at the bud itself to
prevent any further damage from occurring as such within the Constitution. He felt that in case
of appointment of judges, the Amendment has sought to derogate the powers of the Constitution
as in the Judiciary and therefore would mean that the same has to be struck down as
unconstitutional accordingly.
However, he did agree with Chelameshwar J. when he held that the Collegium system lacks
transparency, accountability and objectivity and therefore felt that such changes have to be made
to the existing system itself than to substitute it completely.
Quite significantly, he points out that,
I feel that it is not the trusteeship that failed, but the frailties of the trustees and the
collaborators which failed the system. To me, it is a curable situation yet. 43thereby making his
case for the Collegium system, saying that, such changes need to be made to the system as to
make it efficient in itself and the same cannot be made by taking away the powers as a whole as
it would be detrimental to the basic structure. He felt that the executive seldom acted effectively
and was usually doing activities that were based on political considerations add therefore he felt
that, the Amendment has to be struck down and consequently, the Collegium system will have to
be reformed.

42 Id. at p 921
43 Id. at p 924

Justice Adarsh Kumar Goel

Justice A.K.Goel provided the final opinion as the 5 th judge of the Constitution Bench in this
particular case. Accordingly, he was also in favour of the Collegium system and preferred the
same over the proposed Amendment. He felt that the appointment of the judges has always been
intended to be an integral part of the basic structure of the Constitution and therefore the
constitution of such a commission should be considered to be invalid as per the provisions of the
Constitution.
He felt that, the power being given to the eminent persons that was co-equal to that of the Chief
Justice and the other judicial members of the Commission would be wholly derogatory of the
position mandated under the Constitution and the framework of the Constitution. 44 Additionally,
he also had a problem with Article 124C of the proposed Amendment which gives the
Parliament, the power to make such amendments to the procedure as it wishes which means that
it was an overreach by the Parliament and therefore even the Section 13 of the said Act which
gives approval power to the Parliament in case of regulations, had to be struck down as
unconstitutional if not as per the basic structure but at least under the Article 14, 19 and 21 of the
Constitution of India.45
He felt that, the taking away of the independence of the judiciary was highly detrimental to the
interests of the working of the Constitution and held that the 3 rd judges cases46 had to be
considered to be valid and not the proposed amendment. Therefore, he felt that the idea of
appointments would have to be made only in accordance with the provisions of the Collegium
system in furtherance of the independence of judiciary and it cannot be derogated by any means
as specified.
As a concluding remark, he would hold that,
44 Id. at p 1022
45 Id. at p 1023
46 Id. at p 1014

I am of the view that such grievances ought to be considered. It is made clear that grievances
have not been expressed The matter be listed for consideration of the surviving issue of
grievances as to working of pre existing system.47

Justice Chelameshwar Dissenting


Justice Chelameshwar provided the dissenting opinion in this particular case and it is quite
significant to note because of the fact that, he was the only person with the dissenting opinion in
the 5 judge bench of the Supreme Court.
With regard to the point regarding the absence of guidelines for the appointments as was
criticized by the other judges, he pointed out in para 113 that,
To contend that the AMENDMENT is destructive of the basic structure since it does not lay
down any guidelines tantamount to holding that the design of the Constitution as originally
enacted is defective48
With regard to the veto power that is being accorded as per the provisions of the said Act, he held
that, the particular provision alone would be held as violative of that of the basic structure of the
Constitution and not the Act as a whole in itself.
Moreover, the core of his argument was based on the fact that the judicial independence would
not essentially mean judicial primacy and therefore the same cannot be said to be a valid point in
order to strike down the proposed amendment as he felt that, the disaster that was created in
some of the cases in the judiciary, would justify the participation of the members of the civil
society in the process to eliminate themaladies involved49
His arguments were solely based on targeting the failure of the Collegium system rather than to
praise the proposed system of appointment of judges as he proposed to do. Particularly, he said

47 Id. at p 1025
48 Id. at p 577
49 Id. at p 582

that, the Collegium was a failure and there was no accountability within the Collegium system
and thus it had to be replaced.
In the last lines of his judgment, he would go one to say that,
Only an independent and efficient judicial system can create confidence in the society which it
serves.50
Thereby, the opinion of Justice Chelameshwar could be the dissenting opinion and he believed
that in order to remedy the Collegium, the Amendment would thereby have to be held valid and
therefore be upheld but as many other such line of argument, it could be seen that the same can
be argued against by saying that the flaws of the Collegium can be corrected if needed but given
the political scenario of the Country it would not be good to support such a system as is being
proposed by the Parliament.
Therefore, it would suffice to say that he, like 4 other judges chose to strike down the
amendment and the legislation as unconstitutional and thereby lay the base for the formulation of
the Collegium 2.0 which has to be better and with greater efficiency as is expected of the same.
Also, one can say that, the Court was justified in taking whatever the stance that they took in the
instant case primarily because, as we saw in the preceding chapter, the judiciary was only acting
by taking some of the intention of the framers into reality and also basing their argument on the
basis of the same interpretation of the Constitution itself as well as the intention specified by the
framers.
The case is very significant for the fact that, it not only struck down the NJAC as created by the
parliament but also recognized that the Collegium system had its flaws in itself and felt that such
flaws can be corrected only if the problems are considered according to the merits and dealt with
accordingly. This is significant to note as we have seen in the course of this chapter, the
arguments that have been made prior to the Collegium system.
The purpose of this chapter was to solve the question as to whether the NJAC or any of the
proposals made by the legislature and the executive could be considered as a substitute to the
Collegium system, however, through research of the various judicial opinions and other allied
provisions, it can be sufficiently concluded that the research question has been answered and that
50 Id. at p 583 para 121

in order to ensure the judicial independence, the key would be to consider the reforms to the
Collegium and not the other forms of appointment as speculated.

Improving the Collegium


Accordingly, the Supreme Court, by its order post the Supreme Court Advocates on Record
Association51, asked Ms. Pinky Anand, ASG and Mr. Arvind P. Datar, Senior Advocate to submit
a report on representation/suggestions for improving the Collegium and in furtherance of the
same, they have submitted their report accordingly and in that report, through suggestions from
various areas that are available in the Country, and a comprehensive report was made by them. In
the course of this chapter, we shall take some of the points proposed by the both of them and
attempt to create a better mode of operation of the Collegium System itself. For that purpose, we
shall have two sub divisions within this chapter with the first one dealing with what could have
been efficient changing mechanisms, but has not come into existence and could be useful and the
second one is the things that are done with the future within the purview.

Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium
For the purpose of this section, we shall make references to the suggestions given by the report
filed by Ms. Pinky Anand and Mr. Arvind P. Datar and consequently trying to understand as to
how more changes can be brought into the system to make the Collegium system a better mode
of working. This is in addition to the previous section of what could have been, which means that
the Committees and standards so proposed by the Bills will also be helpful in the execution of
the interests of the judicial appointments.
Transparency and Confidentiality

51 Id.

With regards to transparency and confidentiality a number of general and specific suggestions 52
were made to that extent in the report and most of them go awry and are very broad based
mechanisms. But the researcher has picked those suggestions which are important for the
discussion at hand alone and also made a few additions to the suggestions put forward in the
report.
Firstly, the Criteria for selection must be well defined and laid down by the Supreme Court and
also made available in the website of the Supreme Court, for the appointment of judges. Such
Criterion must be made for the following categories: age, merit, seniority, integrity, income
criteria, and academic qualifications. A set scale for at least the tangible part of these criterions
would be a huge step forward.
Secondly, from the applicant side, the person has to render sufficient details about him and a
standard questionnaire for the same would be sufficient. In addition to this, they have to give
their indication of any relatives who may be judges at the time of submission of the
questionnaire, the income and assets as certified by a Chartered Accountant 53 and if they have
any ties to any political parties. It was suggested that, in the event of a person being tied to a
political party for anytime not less than 3 years prior to the application, then his application
could be rejected. All the details so obtained must be published in the particular website
prescribed, by the Collegium on all accounts.
Following the receiving of the applications, the researcher would also suggest that there also be a
questionnaire with relation to different legal questions and constitutional questions as such and
the assessment of the same could be made by the Collegium, which is in adherence with a
principle of the American model.54
Thirdly, the Collegium when it takes up the applications, the same must be subject to the strictest
scrutiny that is available and the candidate must be given a chance to appear in front of the
52 Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on
representation/suggestions for improving the Collegium in, Supreme Court Advocates-on-Record
Association and Anr v Union of India, 2015
53 Id. at p 8
54 Refer Ch. II

Collegium to present his case for selection. It was suggested that, in order to create a transparent
Collegium, the minutes of the meeting of the High Court and the Supreme Court Collegium are
to be recorded55 as such and the same would be disclosed every few years, for the sake of the
research, the researcher assumes it to be 5 years. Also, it was suggested that for the sake of
scrutiny of the applications, the Intelligence Bureau can be used by the Collegium to form an
inquiry and submit its report accordingly to the members. Additionally it was mandated that to
form its opinion, the Collegium was to consult some eminent persons. For the purpose of the
research, the research would suggest that, there is a need to follow a method similar to the United
Kingdom model56and make such consultation with the senior members of the bar, the judges of
the relevant courts, the law minister of the State or Union as the case may be and the Chief
Minister. These opinions are not binding; however, they are to be recorded in writing and also
published along with the other minutes of the meeting so as to ensure transparency in the system.
However, along with this mode of transparency, it is an absolute necessity to consider the fact
that, there should also be an element of confidentiality accorded to the same as was felt by the
people who gave their suggestions. Accordingly, it was set that firstly, the Collegium would not
be amenable to a case proceeded against it, in the performance of its sovereign functions 57 but it
is the researchers input, that if a candidate is presented with a gross injustice as the case may be,
then he can approach the Court system accordingly, in search of justice. Secondly, all the details
of the rejection of the candidate need not be published in public and should not be amenable to
the RTI, however the researcher feels that, the details of rejection must be presented to the
individual applicant in order to maintain his secrecy and confidentiality and without a prejudice
to his own career. Even the meetings of the Collegium are therefore not published immediately,
but only after a particular period of time has elapsed accordingly.
Eligibility Criterion

55 Supra note 159


56 Refer Ch. II
57 Supra note 162 at p 8

In furtherance of maintenance of the eligibility criterion, the report suggested that a number of
multi various opinions were given by different members belonging to different classes and those
members. Accordingly, from the report that has been submitted taking cognisance of all of these
opinions, the researcher has chosen only such eligibility criterion as is necessary for the research
and combined with allied reasons, propose the eligibility criterion.
Firstly, with regards to the income limit, it was proposed that there was no need of such income
limit to be proposed with regards to checking the eligibility of a candidate. 58 The Bar Council of
India has recommended a minimum of 20 years of practice and 45 years of age for the High
Court judges and 25 years of experience coupled with 50-55 years of age for the appointment of
the Supreme Court judges along with such limits being subject to relaxation on the occurrence of
strong reasons. As the guiding principle for the selection, the Bar Council of India has
recommended such criterion like the number and variety of cases filed, appearances in court,
number of reported cases, articles published in journals/magazines, behaviour in court and
knowledge of the law, subject to future alteration. This is for the case of the advocates seeking
elevation. In the case of Judges who seek elevation, the number of judgments passed the quality
and knowledge in the judgments and the knowledge of the law need to be subject to scrutiny.
Accordingly, it has been suggested that, when the criteria is thereby fixed, then the candidates
can be assessed on the basis of a point system that is maintained by individual judges and an
aggregate score can be maintained.59 Further, most importantly, it has been mandated that, along
with a positive zone of selection, such negative zone of selection for the disentitlement of a
candidate also has to be set and be a subject of the Gazette notification accordingly.
Additionally, on analyzing the model followed in the United Kingdom60, the researcher suggests
that there can be an interview conducted for each candidate who has been shortlisted after a
tedious process, each of which interview would contain such provisions like role playing and
situational questions being posed, in an attempt to understand the qualitative ability of the
candidate. Questionnaires can also be set up, like the 121 st Law Commission report had
58 Id. at p 15
59 Id. at p 16
60 Refer Ch. II

recommended, in order to set a basic scale of merit, based on the kind of answer that has been
provided with by the candidate.
To check the eligibility of a candidate, a system of examinations also has been proposed which
we shall discuss in the forthcoming discussion. In terms of eligibility it has also been recorded
that the due special consideration needs to be given to those who are appearing in legal aid cases
and pro bono works and also women candidates in a bid to diversify the judiciary. 61
However the Collegium has been warned against using too much of the vacancies available to do
justice to diversification, however, on occasions where such diversification can be used, the same
can be done, under a special consideration after being specified.
The basis of these eligibility criterions would be to include such matters that would deal with the
conditions based in which the qualifications can be made. This is because of the fact that the
appointment to any constitutional or statutory authority has within itself its own criteria and the
basis for the appointment and it is this absence of criterion that has been subject to criticism by a
number of members of the judiciary and others, that leads to arbitrary action. Therefore, the
aforementioned criterions have to be incorporated as a set mode of eligibility and the same must
be made public for the selection of the judges.
All India Judicial Service
This mode of setting up a All India Judicial Service is heavily linked with the opinion that there
is a need to set up such a system in order to reform the Judiciary from the bottom up by the
employing of such a mode of selection. Accordingly, it was made as a reference in the report
submitted that it would be necessary to institute an All India Judicial Service in order to reform
the system from the sub ordinate judiciary itself. Therefore, researcher shall merely check for the
viability and need for such a proposal as a final condition that is required for the improving the
efficient judiciary. Accordingly, one can state that, this formulation of the All India Judicial
Service would be the final nail in the box to include the reformation of the judiciary itself and the
Collegium itself as the case may be and end up creating an efficient mode of appointments and
also the transparent and accountable body. The Aforementioned steps if taken would result in the
formation of a Collegium system that is efficient. Additionally it needs to be seen that any other
61 Id. at p 21

changes can be imported later on, on a case to case basis, to create an open and acceptable
system.

CONCLUSION:
The existing collegium system with improvements like transperancy ,credibility,eligibility
criterion changes can make the collegium system a flawless system. The judiciary is one of the
most important organs of a civil and democratic society. Of the judiciary, it is imperative that the
sovereign institution remains independent and also functions independent of the executive power
as well as the legislative authority. In this regard it is to be noted that, the Supreme Court in the
instant case has allowed the Judiciary to be completely independent of the other two institutions
of the Government. Accordingly, as a product of judicial interpretation, the Collegium system
came into existence thereby making it a first of its kind model that is unique to the Indian
system. However, a number of blockades were being formed for such continuance of the model
based solely off its inefficiency

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