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SUBJECT: BASICS OF LEGISLATION

AREA: CONSTITUTION OF INDIA

TOPIC: APPOINTMENT OF JUDGES-REVIEW OF CONSTITUTIONAL


PROVISIONS

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 3
STATEMENT OF PROBLEM ....................................................................................................... 4
OBJECTIVE ................................................................................................................................... 4
HYPOTHESIS ................................................................................................................................ 4
RESEARCH METHODOLOGY.................................................................................................... 5
CHAPTER 1: APPOINTMENT OF JUDGES ............................................................................... 6
Appointment of Judges to the SC ............................................................................................... 6
Appointment of Judges to HC..................................................................................................... 6
Appointment to the Subordinate Judiciary ................................................................................. 7
CHAPTER 2: INDEPENDENCE OF JUDICIARY....................................................................... 7
CHAPTER 3: THE CONTENTION ............................................................................................... 9
The Collegium System ................................................................................................................ 9
CHAPTER 4: ATTEMPTS AT REFORM ................................................................................... 11
CONCLUSION ............................................................................................................................. 16
BIBLIOGRAPHY ......................................................................................................................... 17

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INTRODUCTION

The superior judiciary in India has performed exceedingly well over the last five decades and has
contributed significantly to the advancement of public good and good governance. It has
succeeded in preserving, protecting and promoting the Fundamental Rights of the citizens and
vulnerable groups of citizens against the “innovations of exerted democracy” and for that
purpose it has drawn substantially upon the Directive Principles of State Policy enshrined in Part
IV. It has upheld the balance between the Union and the States, effectively enforced the rule of
law and has advanced the cause of human rights. This has proved possible because of many a
strong, independent and learned judges, of whom any nation can be justly proud of. Courts have
not been infallible. The judiciary has performed well and that they have furnished the highest
example of adequate results of any branch of Government. Over the last decade or two,
however, certain weaknesses in the system have come to light, regarding which every Indian
feels concerned. Indeed judiciary itself has been grappling with these problems which has
ultimately led to the judiciary practically taking over the function of appointing and transferring
the members of judiciary in as much as a proper selection of judges lies at the heart of all the
problems facing the judiciary.

Judiciary is one of the three wings of the State. Though under the Constitution the polity is dual
the judiciary is integrated which can interpret and adjudicate upon both the Central and State
laws. The structure of the judiciary in the country is pyramidical in nature. At the apex, is the
Supreme Court. Most of the States have a High Court of their own. Some States have a
common High Court.

The appointment of Judges of the Supreme Court and their removal are governed by Article 124
of the Constitution of India. The appointment and removal of the Judges of the High Courts are
governed by Article 217. Articles 218 to 221 and 223 to 224A provide for certain matters
incidental thereto. Article 222 provides for transfer of Judges from one High Court to another.

So far as the subordinate judiciary is concerned, the constitutional provisions relating thereto are
contained in Articles 233 to 237. These provisions are, of course, supplemented by the rules
made by the respective Governors of the States under the proviso to Article 309 of the
Constitution.

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STATEMENT OF PROBLEM

 What does constitution say about of appointment judges in various courts of India?

 What is the concept “primacy” of highest judiciary over the executive and the independence
of judiciary?

 What have been the controversies regarding appointment of judges over period of time?

 What are various reforms made in the procedure of appointment of judges?

OBJECTIVE

 To study constitutional provisions regarding appointment of judges.

 To study the concept of independence of judiciary.

 To find out the controversies regarding appointment of judges.

 To analyze the various reforms proposed and made in the context.

HYPOTHESIS

 The appointment of Judges of the SC and their removal are governed by Art. 124 of the
Constitution of India. Art. 125 to 129 provide for certain incidental matters. The
appointment and removal of the Judges of the HC are governed by Art. 217. Art. 218 to 221
and 223 to 224A provide for certain matters incidental thereto. Art. 222 provides for transfer
of Judges from one HC to another. The constitutional provisions relating to subordinate
judiciary thereto are contained in Articles 233 to 237.
 Among the various pillars of a state, judiciary is the strongest pillar of Indian Democratic
System. Our constitutional framers always wanted judiciary to be independent and separated
from the executive and the same is enshrined in our constitutional provisions. The provisions
regarding in our Constitution appointments of judges itself portraits the independence of
Indian judiciary.
 The appointment of judges in India has always been controversial. The Govt. in many
circumstances tried to restrict the autonomy of the judiciary but the judiciary upholding its

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independence as the basic doctrine of the Constitution and thus cannot be amended had
declared many moves of the executive null and void. Recently, the Govt. tried to replace the
collegiums system with NJAC which was declared null and void by the SC.
 For the effective functioning of judiciary, both judiciary and executive have to give their
contributions and for the same purpose there have been attempts made to overcome the
loopholes in the existing system of appointment of judges. Likewise, committees like Sapru
Committee, HC Arrears Committee and Fourteenth Report of the Law Commission of India
put forward their recommendations to improve the efficiency of the system. Recently the
government came with NJAC which was struck down by the SCas unconstitutional. Both the
judiciary and executive works toward the better reforms and it’s the judiciary which checks
its validity being the custodian of the constitution of India.

RESEARCH METHODOLOGY

The research methodology adopted in this project is Doctrinal. The primary resources referred to
are the case laws and the legislations and secondary resources are the books , arcticles and
journals.

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CHAPTER 1: APPOINTMENT OF JUDGES

Appointment of Judges to the SC

Under our constitutional scheme, the President is the constitutional head. In exercise of the
powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of
Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union
Council of Ministers in the name of the President1.

Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India,
Judges of the SC or with the Judges of the HC . The expression is not “concurrence”. The
Constituent Assembly debates show that when it was suggested by some of the members that the
expression should be ‘concurrence’ and not ‘consultation’, it was not agreed to.

Practice followed till 1981: A practice had developed over the last several decades according to
which the Chief Justice of India initiated the proposal, very often in consultation with his senior
colleagues and his recommendation was considered by the President (in the sense explained
hereinabove) and, if agreed to, the appointment was made. By and large, this was the position
till 1981.

Seniority to be followed in appointment of Chief Justice of India: So far as the appointment of


the Chief Justice of the SC of India is concerned, both the 1993 decision and the 1998 opinion
lay down that the senior-most judge should always be appointed as the Chief Justice of India.

Appointment of Judges to HC2

The procedure for appointment of Judges of the HC s is slightly different from the one
concerning the appointment of Judges of the SC. Clause (1) of Art 217 says that every judge of a
HC shall be appointed by the President. A reading of this clause shows that while the
appointment is made by the President, it has to be made after consultation with three authorities,
namely, the Chief Justice of India, the Governor of the State and the Chief Justice of the HC .
(Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice
is not required). Just as the President is the constitutional head, so are the Governors.

1
M P Jain, Indian Constitutional Law (6th edn, Lexis Nexis,2013).
2
Vigyan Bhawan Annexe,’ A Consultation Paper on SUPERIOR
JUDICIARYhttp://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm accessed 23 October 2017.

6
Appointment to the Subordinate Judiciary

The appointment to subordinate judiciary is governed by Articles 233 to 237 of the Constitution
and the rules made under the proviso to Article 309. The district judges, who are at the highest
rung of the subordinate judiciary, are appointed both by direct recruitment and by promotion.
The selection of direct recruit district judges is made by the HC. On the basis of the
recommendation of the HC, the Governor appoints them. So far as promotion to the post of
district judge is concerned, it is also made by the HC alone, formal orders being issued by the
Governor. So far as the appointment of munsiffs and magistrates (the lowest rung in the
subordinate judiciary) is concerned, their selection is made by the Public Service Commission
and the HC. The practice in many States is that a Judge of the HC nominated by the Chief
Justice of that Court sits with the Public Service Commission for the purpose of selection. In
some States, the power of selection is vested exclusively in the HC. Here again the appointment
is made by the Governor on the basis of the recommendation made by the designated judge and
the Public Service Commission or by the HC , as the case may be. So far as promotion from
munsiff/magistrate to the intermediate higher level of subordinate judge /assistant sessions judge
is concerned, it is made by the HC itself. In short, in the matter of selection for appointment,
promotion and postings of subordinate judiciary, the HC is the real authority and the role of the
State Government is formal in character.

CHAPTER 2: INDEPENDENCE OF JUDICIARY

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. This concern of the members of the
constituent assembly was responded by Dr. B.R. Ambedkar in the following words3: “There can
be no difference of opinion in the House that our judiciary must be both independent of the
executive and must also be competent in itself. And the question is how these two objects can be
secured”.

In India judiciary is separated from executive and both work in their respective ambit in the
democratic system. The independence of judiciary(a basic feature of the Constitution) is an
important framework of the democracy and in India this independence and high esteem is

3
Atin Kumar Das,’ Independence Of Judiciary In India:A Critical
Analysis’http://mulnivasiorganiser.bamcef.org/?p=482 accessed 23 October 2017.

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secured to the judiciary by our constitution and the various legislations parliament has framed
time to time to maintain a distance between executive and judiciary.

Many provisions are provided in our constitution to ensure the independence of the judiciary.
The constitutional provisions are discussed below:

1. Security of Tenure: The judges of the SC and HC have been given the security of the
tenure. Once appointed, they continue to remain in office till they reach the age of retirement
which is 65 years in the case of judges of SC (Art. 124(2)) and 62 years in the case of judges
of the HC (Art. 217(1)). They cannot be removed from the office except by an order of the
President and that too on the ground of proven misbehavior and incapacity.

2. Salaries and Allowances: The salaries and allowances of the judges is also a factor which
makes the judges independent as their salaries and allowances are fixed and are not subject to
a vote of the legislature4. They are charged on the Consolidated Fund of India in case of SC
judges and the Consolidated Fund of state in the case of HC judges.

3. Powers and Jurisdiction of SC: Parliament can only add to the powers and jurisdiction of
the SC but cannot curtail them. Powers of the SCcannot be taken away. Making judiciary
independent.

4. No discussion on conduct of Judge in State Legislature / Parliament: There shall be no


discussion in the Parliament or legislature of the state with respect to the conduct of any
judge of SC or of HC in the discharge of his duties except upon a motion for presenting an
address to the President praying for the removal of the judge5.

5. Power to punish for contempt: Both the SC and the HC have the power to punish any
person for their contempt6.

6. Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the

4
Constitution of India, Art 125.
5
Constitution of India, Art 211&121.
6
Constitution of India, Art 129&215.

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judiciary from the executive in the public services of the state. The object behind the
Directive Principle is to secure the independence of the judiciary from the executive.

CHAPTER 3: THE CONTENTION

The appointments of judges to the SC and the HC have always evoked controversies but
subordinate judiciary is somewhat stable in comparison. This is so the government has always
tried to put restrictions on the judiciary thereby grabbing its autonomy. But the SC declares it
null and void as it is against the basic structure of the constitution. The spat between the
executive and the judiciary seems to be alive from a long and it is great threat to the democratic
set up where the top executive and the top judiciary are themselves indulged in a war how will
they calm down other issues.

The Collegium System

The collegium system has its genesis in a series of judgments called “Judges Cases”. The
collegium came into being through interpretations of pertinent constitutional provisions by the
Supreme Court in the Judges Cases.

First Judges Case: In S P Gupta Vs Union of India7, 1981, the Supreme Court by a majority
judgment held that the concept of primacy of the Chief Justice of India was not really to be found
in the Constitution. It held that the proposal for appointment to a High Court can emanate from
any of the constitutional functionaries mentioned in Article 217 and not necessarily from the
Chief Justice of the High Court. The Constitution Bench also held that the term “consultation”
used in Articles 124 and 217 was not “concurrence” — meaning that although the President will
consult these functionaries, his decision was not bound to be in concurrence with all of them.
The judgment tilted the balance of power in appointments of judges of High Courts in favour of
the executive. This situation prevailed for the next 12 years.

Second Judges Case: In The Supreme Court Advocates-on-Record Association Vs Union of


India, 1993, a nine-judge Constitution Bench overruled the decision in S P Gupta and devised a
specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the
higher judiciary. Underlining that the top court must act in “protecting the integrity and guarding

7
SP Gupta v President Of India And Ors AIR 1982 SC 149.

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the independence of the judiciary”, the majority verdict accorded primacy to the CJI in matters of
appointment and transfers while also ruling that the the term “consultation” would not diminish
the primary role of the CJI in judicial appointments.

“The role of the CJI is primal in nature because this being a topic within the judicial family, the
executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a
mini form. Should the executive have an equal role and be in divergence of many a proposal,
germs of indiscipline would grow in the judiciary,” it held.

Ushering in the collegium system, the court said that the recommendation should be made by the
CJI in consultation with his two seniormost colleagues, and that such recommendation should
normally be given effect to by the executive. It added that although it was open to the executive
to ask the collegium to reconsider the matter if it had an objection to the name recommended, if,
on reconsideration, the collegium reiterated the recommendation, the executive was bound to
make the appointment.

Third Judges Case: In 1998, President K R Narayanan issued a Presidential Reference8 to the
Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution
(advisory jurisdiction). The question was whether “consultation” required consultation with a
number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself
constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the
functioning of the coram for appointments and transfers — this has come to be the present form
of the collegium, and has been prevalent ever since. This opinion laid down that the
recommendation should be made by the CJI and his four seniormost colleagues, instead of two.
It also held that Supreme Court judges who hailed from the High Court for which the proposed
name came, should also be consulted. It was also held that even if two judges gave an adverse
opinion, the CJI should not send the recommendation to the government.

Critics argue that the system is non-transparent, since it does not involve any official mechanism
or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility
criteria or even the selection procedure. There is no public knowledge of how and when a

8
AIR 1999 SC 1.

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collegium meets, and how it takes its decisions. Lawyers too are usually in the dark on whether
their names have been considered for elevation as a judge9.

The NDA government has tried twice, unsuccessfully both times, to replace the collegium
system with a National Judicial Appointments Commission (NJAC). The BJP-led government of
1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there
was need to change the collegium system. The Commission favoured change, and prescribed an
NJAC consisting of the CJI and two seniormost judges, the Law Minister, and an eminent person
from the public, to be chosen by the President in consultation with the CJI. A clutch of petitions
were subsequently filed in the Supreme Court, arguing that the law undermined the
independence of the judiciary, and the basic structure of the Constitution.

In 2015, a five-judge Constitution Bench declared as unconstitutional the constitutional


amendment that sought to create the NJAC, which had envisioned a significant role for the
executive in appointing judges in the higher judiciary. The Bench sealed the fate of the proposed
system with a 4:1 majority verdict that held that judges’ appointments shall continue to be made
by the collegium system in which the CJI will have “the last word”. “There is no question of
accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter
of selection and appointment of judges to the higher judiciary,” said the majority opinion. Justice
J Chelameswar wrote a dissenting verdict, criticising the collegium system by holding that
“proceedings of the collegium were absolutely opaque and inaccessible both to public and
history, barring occasional leaks”.

CHAPTER 4: ATTEMPTS AT REFORM

For a proper appreciation of the problem dealt with herein, it is relevant to notice the several
suggestions put forward and attempts at reform tried in last several years in this behalf .There
always have various steps to overcome the shortcomings of the collegiums system and equal
participation of judiciary and executive in the appointments to make them more credible. The
various committees and commissions put forward their recommendations to improve the
efficiency of the system. Recently the government came with NJAC which was struck down by

9
Utkarsh Anand, ‘How judges appoint judges,the debate around it’
http://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-
transferred-the-debate-around-it-4375719/accessed 23 October 2017.

11
the SC as unconstitutional. Likewise both the judiciary and executive works toward the better
reforms and it’s the judiciary which checks its validity being the custodian of the constitution of
India. Some of them are as follows:

i. Recommendations of Sapru Committee: In the year 1945, the Sapru Committee


(constituted to look into this aspect in view of the impending independence of the country)
recommended that “Justices of the SC and the HC should be appointed by the head of State
in consultation with the Chief Justice of SC, and, in the case of HC Judges, in consultation
additionally with the HC Chief Justice and the head of the unit concerned.”
ii. Recommendations of the High Powered Committee appointed by the Constituent
Assembly10: The Constituent Assembly appointed a high-powered ad hoc committee
consisting of outstanding jurists of the country for recommending the best method of
selecting Judges for the SC. The committee submitted a unanimous report opining that it
would not be desirable to leave the power of appointing Judges of the SC with the President
alone. It recommended two alternative methods in that behalf, namely, (i) the President
should, in consultation with the Chief Justice of the SC , nominate a person to be appointed
as Judge of the SC and the nomination should be confirmed by a majority of at least seven
out of a panel of eleven (composed of some of the Chief Justices of the HC s, some members
of both the Houses of Central legislature and some of the law officers of the Union); (ii) the
said panel of eleven should recommend three names out of which the President, in
consultation with the Chief Justice, may select a Judge for appointment. The same procedure
should be followed for the appointment of Chief Justice of the SC except of course that in his
case there should be no consultation with the Chief Justice.
iii. Fourteenth Report of the Law Commission of India: In its Fourteenth Report (1958), the
First Law Commission of India, headed by first Attorney General of India, Shri M.C.
Setalvad, and composed of some very distinguished personalities of the time, examined this
issue at length. After noticing that the appointments made have not always been on merit, the
Report observed: “It is widely felt that communal and regional considerations have prevailed
in making the selection of judge. What perhaps is still more to be regretted is the general
impression that now and again executive influence exerted from the highest quarters has

10
B Shiva Rao The Framing of India’s Constitution (Vol 2)590.

12
been responsible for some appointments to the Bench11”. The report recommended that
every appointment to the HC and the SC should be made with the concurrence of the Chief
Justice of India. In effect, this report sought to revive the idea of ‘concurrence’, which was
not accepted by the Constituent Assembly. Of course, this recommendation was not
implemented.
iv. Recommendations of HC Arrears Committee: In 1970s, the HC Arrears Committee also
went into this question though it did not deal with the format of the mechanism for
appointment. It recommended that if the recommendation made by the Chief Justice of the
HC is not dealt with within one month from the date of its receipt, the State Government
must be deemed to have accepted the recommendation and action must be taken by the
Central Government for expeditious disposal of the proposal.
v. Appointment mechanism suggested by the Convention of the Bar: Following the
controversy arising from the supersession of three senior-most Judges of the SC in the matter
of appointment to the office of the Chief Justice of India in 1973, a Convention of the Bar
of the whole country was held on 11-12 August, 1973. It unanimously adopted a resolution
on the criteria, machinery, and procedure for appointment of Chief Justice and Judges. The
resolution recommended, inter alia, that the appointment of the HC Judges should be made
on the recommendation of a Committee of three senior-most Judges of the HC (including the
Chief Justice) and two senior advocates nominated for the purpose by the Association of the
HC Bar.
vi. Observations of the SC in Shamsher Singh’s Case: In its judgment in Shamsher Singh v.
State of Punjab12 , the Constitution Bench of the SC dealt with the appointment of
Judges. The Bench observed: “In all conceivable cases, consultation with highest dignitary
of Indian justice will and should be accepted by the Government of India and the court will
have an opportunity to examine if any other extraneous circumstances have entered into the
verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In
practice, the last word in such sensitive subject must belong to the Chief Justice of India, the
rejection of his advice being ordinarily regarded as prompted by oblique considerations
vitiating the order.”

11
14th Report of the Law Commission of India.
12
Shamsher Singh v State of Punjab AIR 1974 SC2192.

13
vii. 80th Report of the Law Commission of India: In the year1977, the Law Commission
headed by Shri H. R. Khanna J. went into the matter at length and recommended that while
making a recommendation for appointment of a Judge of a HC , the Chief Justice of the HC
should consult his two senior-most colleagues and while forwarding the recommendation
should incorporate therein the fact of such consultation and indicate the views of the two
colleagues. The unanimous recommendation of this body, it was recommended, should
normally be accepted by the executive13.
viii. 79th Report of the Law Commission of India: In the Seventy-ninth Report of the Law
Commission of India, it was recommended that in the matter of appointment of Judges of the
SC, the Chief Justice of India should consult his three senior most colleagues and should, in
the communication incorporating his recommendation, specify the result of such consultation
and reproduce the views of each of his colleagues so consulted. It appears that this procedure
was followed between 1977 and 1979 but given up thereafter.
ix. Majority view in S.P. Gupta’s case: In S.P. Gupta’s case14 (1981) Justice Bhagwati (who
was in the majority) did not accept the concept of the primacy of the Chief Justice of
India. He opined that proposal for appointment can emanate either from Chief Justice of
India or from any of the other three constitutional functionaries (in the case of appointment to
HC ) and that it was open to the Central Government to override the opinion of Chief Justice
of India or the other two constitutional functionaries. He said that opinion of all the three
functionaries to be consulted (Article 217) stands on equal footing. He added, quite
significantly, that if the opinion of Chief Justice of India and Chief Justice of the HC is
unanimous, the Government should ordinarily accept it. In the course of his opinion, the
learned Judge also referred to the desirability of a collegium to make recommendation to the
President in regard to appointment of SC and HC Judges. He thought that such a collegium
should be broad-based and should make the recommendation in consultation with wider
interests. He referred to the fact that in countries like Australia and New Zealand the idea of
a Judicial Commission has been gaining ground.
x. 121st Report of Law Commission of India for Constitution of a National Judicial Service
Commission: The Law Commission again went into this matter at great length in the year

13
80th Report of the Law Commission of India.
14
SP Gupta v President Of India And Ors AIR 1982 SC 149.

14
1987. Its recommendations are contained in the One Hundred Twenty-first Report on a New
Forum for Judicial Appointments submitted in July, 1987. After noticing the several
recommendations made earlier and the developing trends in other countries, the Law
Commission recommended the constitution of a National Judicial Service Commission. It
opined “a broad based National Judicial Service Commission representing various interests
with pre-eminent position in favour of the judiciary is the demand of the times15.” The
Report recommended that the Judicial Service Commission should be composed of eleven
persons, namely, the Chief Justice of India and three senior most Judges of the SC, the
immediate predecessor in office of the Chief Justice of India, three senior most Chief Justices
of the HC s, Minister for Law and Justice, the Attorney General of India and an outstanding
law academic. The report further opined that it must be left to such Commission to devise its
own procedure for initiation of proposal for recommending individuals for appointment and
that no hard and fast rule can be laid down in that behalf. It was observed that
recommendation of such a Commission should be binding upon the President but it shall be
open to the President to refer the recommendation back to the Commission in any given case
along with information in his possession regarding the suitability of the candidate. If,
however, after reconsideration, the Commission reiterates its recommendation, the President
shall be bound to make the appointment. It was also recommended that the Chief Justice of
the HC , to which appointment is proposed to be made, should be co-opted as a member of
the Commission. Besides the Chief Justice of the HC , the Chief Minister of the State
(wherein the HC is situated) was also recommended to be co-opted. It is evident that the
Law Commission had in mind the appointment to HC only. It does not appear to have dealt
with appointment to SCin this Report.

15
121st Report of Law Commission of India.

15
CONCLUSION

Judiciary is the strongest pillar of a state. In a democratic state like India, judiciary stands above
all the organs. But irony is that the judiciary’s independence is always at stake. The appointment
of judges, the main constituent of the independent judiciary, has always been in controversy
since the adoption and enactment of the constitution of India. Judicial appointments, an integral
facet of judicial independence, are part of the basic structure. Judicial primacy in judicial
appointments (with executive participation) is also part of the basic structure.

The Collegium system is at present the procedure for appointment of judges. This system has
been followed for a long period. It allows for Executive participation while maintaining judicial
primacy through the Collegium. Later on, the executive intrudes in the judicial sphere by
bringing up NJAC. The NJAC violates the basic structure by doing away with judicial primacy
through its veto provisions, thereby, SC declares the 121st constitutional amendment
unconstitutional and primacy of judiciary is restored to some extent. But this does not end the
tusle between executive and judiciary. The direct impact of this is that there are less competent
judges and the appointments of judges are prolonged. The vacancies keep on increasing and
justice gets delayed. Thus there has to be end long dispute of the participation of Executive in the
appointments of judges without affecting the independence of judiciary.

16
BIBLIOGRAPHY
Statutes
Constitution of India, Art 125. ........................................................................................................ 9
Constitution of India, Art 129&215. ............................................................................................. 10
Constitution of India, Art 211&121. ............................................................................................... 9
Cases
Shamsher Singh v State of Punjab AIR 1974 SC2192 ................................................................. 14
SP Gupta v President Of India And Ors AIR 1982 SC 149 ................................................... 10, 15
Other Authorities
121st Report of Law Commission of India. .................................................................................. 16
80th Report of the Law Commission of India. ............................................................................. 15
Books
B Shiva Rao The Framing of India’s Constitution (Vol 2)590. .................................................. 13
M P Jain, Indian Constitutional Law (6th edn, Lexis Nexis,2013) ................................................ 7
Online Journals
Atin Kumar Das,’ Independence Of Judiciary In India:A Critical
Analysis’http://mulnivasiorganiser.bamcef.org/?p=482 accessed 23 October 2017 .................. 8
Utkarsh Anand, ‘How judges appoint judges,the debate around it’
http://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-
appointed-and-transferred-the-debate-around-it-4375719/accessed 23 October 2017. ............ 12
Vigyan Bhawan Annexe,’ A Consultation Paper on SUPERIOR
JUDICIARYhttp://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm accessed 23 October 2017. . 7

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