Collegium System and National Judicial Appointments Commission

8/9/2019 Collegium System and National Judicial Appointments Commission

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Articles by eminent people on Collegium System and National

Judicial Appointments Commission for a discussion to be organized

by Legal Discussion Forum, Amity Law School, Lucnow!

Needed" Dialogue, statesmanship

Fali S Nariman

In the Constitution of India, 1950, the appointing authority for judges in the higher judiciary is

the government of India, acting in the name of the president of India. Judges of the Supreme

Court are appointed after consultation ith the chief justice of India !CJI" and other judges of the

Supreme Court !or high courts" as the appointing authority deems necessary for the purpose#

judges of high courts are appointed after consultation ith the CJI, the governor of the concerned

state and the chief justice of the concerned high court. $his simply orded prescription %

e&pressed in 'rticles 1()!(" and (1*!1" % or+ed ell in practice for the first to decades. y

convention, hosoever the CJI recommended as judge as, almost invaria-ly, appointed# hom

the CJI did not recommend as not appointed.

ut in 191, in the S./. upta case, much later +non as the first judge2s case3, a -ench of

seven judges of the Supreme Court presided over -y Justice /.4. hagati held !)6" that the

recommendations of the CJI for judges to -e appointed in the higher judiciary ere,

constitutionally, not -inding on the government of India. $he !Congress" government, then in

office, as delighted. It as no pay-ac+ time. So hen hagati assumed office as CJI, the

Congress government, still in office, declined to appoint judges recommended -y him, since it

as he ho had judicially declared !in the S./. upta case" that consultation3 in 'rticle 1() did

not mean concurrence3.

It as much later, ith the accumulated e&perience of the deleterious conse7uences floing from

the majority judgment in the first judges case, that ne faces on the -ench decided to ta+e a

fresh loo+3 at 'rticle 1()!(". In hat has no -ecome +non as the second judges case3

!1996", a -ench of nine judges held !-y a majority, *(" that a collegiate opinion of a collectivity

of judges as to -e preferred to the opinion of the CJI. It also said that if the government did not

accept the recommendation3 of the collegium3 !then consisting of the three senior8most

judges", it ould -e presumed that the government had not acted -ona fide.

ven after the judgment in the second judges case, recommendations made -y the collegium

ere not made in the spirit in hich the ne doctrine had -een propounded, since the collegiate

of the three highest constitutional functionaries !the senior8most judges of the court" could not

see eye to eye in the matter of appointment of judges to the higher judiciary. So hen !again, -y

convention" the then senior8most judge, Justice :.:. /unchhi, -ecame the CJI in January 199


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and recommended, ith the concurrence of his to senior8most colleagues, that a particular list

of five named persons -e appointed to fill the vacancies in the highest court !all strictly in

accordance ith the methodology laid don in the second judges case", the government too+

e&ception to some of the names % justifia-ly, according to disinterested and +noledgea-le

persons.

ut the CJI as adamant. ;hen the government said that some of the names suggested could -e

accepted, -ut not all, the CJI said It ill -e all or none.3 'pprehending the initiation of

contempt proceedings, the government of the day !the 4


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justice", so that a mutually accepta-le solution can -e found. It must -e found. Statesmanship is

the need of the hour, -ecause e cannot ris+ another judicial decision. $he e&ecutive, the judges

and the layers must resolve to avoid, at all cost, a fourth judges case.

$he riter is a constitutional jurist and senior advocate to the Supreme Court

First, insulate the #udge from politics

> @': J$=:'A'4I

$he thesis of Bcommitted2 judiciary has -een a-andoned, -ut its practice continues una-ated.

$hat is the real pro-lem, rites @': J$=:'A'4I.

' judge is the guardian of the small man and his -undle of rights, hich ena-le him to realise hisfullest material, moral and spiritual potential, and e&pand to the utmost frontiers of his -ody,

mind and soul. 4o judge must aspire to harmony ith the legislature and e&ecutive. very judge

must -race himself for a life of tension ith -oth in the intelligent and stout defence of his ard,

ho needs constant protection against the insolence of unfeeling officials, the venality of

politicians and the misdeeds of ic+ed neigh-ours and fello citiens. very court is essentially

a court of ards# the Supreme Court has the entire citienry as its ard. Dur judges need not -e

sensitive to the oft8mounted attac+ that they are not elected and are, therefore, unaccounta-le and

undemocratic.

$his role of the judge ma+es one thin+ a-out elected judges. ut the system of elected judges has -een tried elsehere and I -elieve that it has produced jo+es. $he most instructive jo+e that you

ill find is that in a certain ES state, the


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machinations of the +ind that have disgraced some sections in the past not only in this country,

-ut also elsehere.

/oliticians as a class and the e&ecutive in poer must therefore have no voice in the appointment

of judges. $he e&ecutive is the -iggest litigant in cases of citien complaints of the oft8corrupt

misuse of e&ecutive poers. ven a good judge appointed -y a corrupt minister ill notcommand pu-lic confidence. $he second judges case, the origin of the present collegium system,

as a correct decision, and the current system is vastly superior to the one it supplemented. It

as the one that produced the tellingly sarcastic comment, It has created to +inds of judges %

those ho +no the la and those ho +no the la minister.3

South 'frica, in its ne constitution, adopted the model of a judicial commission as the method

of selection, hich has -een operational since 199G. $he la minister is formally consulted and

he ma+es his comments upon the appointees or recommendees of the judiciary. $he comments of

the la minister are considered ith respect and attention, -ut the final ord lies ith the

commission. I am committed to this mechanism as our final solution. I must hasten to e&plainhy.

I agree ith the eighty opinion of my erudite friend, senior counsel 'nil


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opposition, the ar and academic community have an e7ual voice. Judges should hold office

only during the pleasure of the commission. It should have the poer to appoint, transfer and

dismiss % of course, in accordance ith procedure esta-lished -y la, or hat is also +non as

due process. $he Ao+pal may ell -e a useful addition to the list of participants.

$he *9th report of the Aa Commission suggested ays to plug loopholes in the e&isting systemof appointment of Supreme Court judges. 4o one should -e appointed a judge of the Supreme

Court unless, for a period of not less than seven years, he has snapped all affiliations ith

political parties and unless, during the preceding seven years, he has distinguished himself for his

independence, dispassionate approach and freedom from political prejudice.

$he practising ar is the constituency of a judge. If he cannot retain its confidence, he must

gracefully 7uit office. It is just not true that only ea+ and o-liging judges are popular ith the

ar. :em-ers of the ar +no the -lac+ sheep on the -ench. 4o onder, the 'merican ar

'ssociation can, -y its adverse criticism, ma+e the mighty president of the ES ithdra his

nominees for judicial office. ' lord chancellor of ngland admitted that if he made an unorthyappointment, he could not possi-ly loo+ into the eyes of the layers at ar dinners.

$he writer, a lawyer and %a#ya Sabha &' from %a#asthan, is a former (nion law minister

)June *+++July -.../

Change must respect basic structure

(pendra 0a1i

$he relationship -eteen democracy3 and secrecy3 has alays -een de-ated, and it has -een

highlighted -y the system of judicial appointments. $he proposed judicial appointments

commission !J'C" see+s to partly anser that 7uestion. Ender revie is the judicial collegium

method of appointments, in use since the 1990s !hich consists today in the supremacy of five

senior8most justices of the Supreme Court, including the chief justice of India", as against the

constitutional method in place -eteen the 1950s and the 1990s !here the e&ecutive nominated

candidates in consultation ith the CJI and such other justices as it deemed fit".

4either method can -e said to have failed or succeeded, -ecause the citien has no ay of

+noing ho the candidates are, ho they are selected and hy. 4o empirical study of judicial

appointments is possi-le -ecause the records are not availa-le, and li+e the electoral nomination

of candidates, the right to information does not e&ist so far as judicial elevations or transfers of

high court justices are concerned. Stories in hich judges, layers, la ministers and journalists

tell us a-out the system3 are a-undant, -ut such anecdotal evidence is hearsay and not

ordinarily admissi-le in a court of la.


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In the three judges cases, including a reference for advisory opinion, the court arrogated the

poer to elevate !and transfer high court" justices through a tortured interpretation of 'rticles

1() and (1* of the Constitution, -y saying that the ord consultation3 shall mean the consent3

of the CJI. ut a constitutional convention giving primacy to the CJI as already in place %

according to the la secretary2s affidavit, only seven out of some 6) recommendations ere

negatived -y the Central government. If the system of e&ecutive nomination has or+ed so ell,

hy the change?

're the CJIs, in some cases, constrained to approve e&ecutive8dominated elevations? Justice

:ar+andey Hatju2s recent e&pose suggests that the CJI is vulnera-le to alleged manoeuvring -y

the prime minister2s office. $he justices in the judges cases seemed to thin+ so, given that they

accorded primacy first to the CJI, then to to judges and the CJI, and finally to a collegium of

five justices.

$o its credit, the E/' government introduced nearly half a doen -ills for judicial appointments

and transfers, and contemplated a sle of measures on judicial standards, accounta-ility, non8impeachment offences and transparency of the judicial process. $he ne government is

espousing the cause# it clearly disfavours the political -ravado that inspired a Enion la minister

to say that he had justices in his poc+ets# this is no longer the signature tune of modern

governance. @ather, the state no ants a J'C that ould avoid the vices of politicians

appointing judges, and of the justices appointing their on.

$his is elcome, as is the agreement that the senior8most judge may only -e the CJI !at least till

(0(1, hen even reforms contemplating a minimum tenure for the CJI may occur". $he many

E/' -ills made the CJI the chair of the J'C, converged in ma+ing to senior8most justices of

the Supreme Court mem-ers, provided a

process to identify to eminent citiens, and finally culminated in the 1(0th constitutional

amendment -ill, hich too lapsed in the Ao+ Sa-ha. $he 4


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' greater fundamental difficulty is posed -y the -asic structure doctrine. I have previously

argued in these pages !BJust governance2, I, June 10" and at a 4e


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First, the appointment of judges -y the Supreme Court collegium has no foundation in our

Constitution. 'rticle 1() of the Constitution provides that every judge of the Supreme Court is to

-e appointed -y the president after consultation ith the chief justice of the Supreme Court and

other judges of the Supreme Court and high courts. Similar poer is given -y 'rticle (1* to the

president in consultation ith the chief justice of India !CJI", the governor of the state and chief

justice of the high court for the appointment of judges to high courts.

In 191, in hat is +non as the first judges2 case, the Supreme Court held that the poer of

appointment of judges of the superior courts resided solely and e&clusively in the president, that

is, the Central government, su-ject to full and effective consultation ith the constitutional

functionaries referred to in 'rticles 1() and (1*. =oever, in 199(, the Supreme Court, in the

second judges2 case, professing to safeguard the independence of the judiciary, reversed the first

verdict and rerote the constitutional provisions to hold that the primacy in the appointment of a

judge of the Supreme Court as ith the CJI, ho ould ma+e his recommendation to the

president after consultation ith to of his senior judges. $he president ould only have the

limited poer of e&pressing his dou-ts on the recommendation of the CJI. $he president2s dou-ts

ould not hoever prevail if the CJI reiterated his recommendation on the appointment of the

judge. In a later judgment, +non as the third judges2 case, the Supreme Court diluted the

primacy of the CJI, and gave the poer of appointment to a collegium of the CJI and four of his

senior8most colleagues.

$he judgments in the second and third judges2 cases are an e&traordinary tour de force in the

name of securing the independence of the judiciary. $he court has reritten the provisions of the

Constitution for the appointment of judges. $he e&ecutive2s function in the appointment process

has for all practical purposes -een eliminated and reduced to the formal approving of a

recommendation made -y the CJI and his collegium. Consultation3 ith the CJI in the

Constitution has -een transmuted into an original poer to appoint -y the CJI and a collegium.

$he Constituent 'ssem-ly2s vie at the time of enacting the constitutional provisions, that the

CJI should not -e the final appointing authority, as disregarded -y the court. In no jurisdiction

in the orld do judges appoint judges.

ven if the collegium2s method for the appointment of judges has no foundation in the

Constitution, it could have -een e&cused had the system or+ed satisfactorily, -ut unfortunately,

for over (0 years, it has not. In the first instance, the collegium system lac+s transparency and is

secretive. $he pu-lic is not aare of the selection of a judge until his name is forarded to the

government -y the collegium. Second, there have -een instances of judges -eing selected or not

selected due to favouritism or prejudice of mem-ers of the collegium. $hird, selection on

competitive merit of the appointees is discarded and judges are generally appointed to the

Supreme Court on their seniority in ran+ing in the high courts. $he late Justice J.S. erma,

principal author of the second judges2 judgment, later admitted that the collegium system had

failed.


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Should the earlier system of the e&ective appointing judges after proper consultation -e restored?

/arado&ically, from 1950 to 19*6, some of the most outstanding judges of our Supreme Court

ere appointed through this system. minent judges li+e :ichael Hir-y of the 'ustralian =igh

Court are strongly in favour of restoring the old system, ith control over it -y /arliament. It

as only during the period of the mergency that this system as su-verted, hich led to the

judiciary appropriating the poer in the second judges2 case. ven today, in 'ustralia and

Canada, it is the e&ecutive that appoints judges after proper consultation.

$o introduce a Judicial 'ppointments Commission !J'C" in India is a fundamental change in the

Constitution. Such a change re7uires careful consideration and evaluation of the system. It is

important to +no that, e&cept for the judicial appointment commission of the EH introduced -y

the Constitutional @eform 'ct, (005, such commissions have not -een successful elsehere. $he

South 'frican constitution provides for a judicial appointment commission, -ut its or+ing is far

from satisfactory and at times appointments have -een influenced -y the government. $he same

is true of judicial appointment commissions in other states in 'frica.

If the J'C is to -e introduced in India, its composition should -e made part of the Constitution

itself and not left to ordinary legislation -y /arliament. $here should -e proper representation of

mem-ers, including of the legal profession, in the J'C. $he J'C ill -e over8stressed and

overor+ed if it has to ma+e appointments for 61 judges to the Supreme Court and over 00

judges to the () high courts. $he CJI and to senior8most judges, ho are to -e part of the

commission, ould have to or+ in the commission to the neglect of their primary judicial duties

of hearing and deciding cases. $here ought to -e to separate judicial commissions, therefore,

one for the Supreme Court and the other for the high courts. $he J'C for high courts ought to

-e composed of retired judges of the Supreme Court or high courts, in addition to other mem-ers. In the EH, there are separate selecting -odies for high court and for supreme court.

$he overriding factor ill -e the merit of the candidate, -ut the commission, as in the EH,

should consider diversity, namely, appointment of omen judges and judges of various regions

ithout of course sacrificing merit.

Dverall, the creation of a J'C re7uires careful consideration and e&tensive consultation ith all

sections of the pu-lic, including the CJI. $he present la minister, @avi Shan+ar /rasad, rightly

convened a meeting on July ( of judges and layers and jurists to discuss the changes to -e

made. It is to -e hoped that such consultations ill -e continued -efore a legislation is

introduced. $he collegium system has not or+ed, -ut e should not have a situation here e jump from the frying pan of the collegium to the -urning fire of a chaotic 4ational Judicial

Commission.

$he writer is a senior ad2ocate of the Supreme Court and former Solicitor 4eneral of 5ndia


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Lay down standards of transparency

'rashant 0hushan

$he change of mind in /a+istan via8a8vis India is real. ut foreign offices of -oth countries

remain addicted to deadloc+s.

=o e decide the ve&ed issue of the method of selection of judges of the Supreme Court and

the high courts ould determine the future of our democracy and the rule of la in the country.

;e are faced ith the tin pro-lem of selecting the -est judges and also ensuring that the

judiciary ould -e insulated from e&ecutive interference.

$he attempt to undermine the independence of the judiciary originated in 19*6 after the

landmar+ Hesavananda harati judgment of the Supreme Court. Indira andhi decided that only

those judges ho are committed to the ideology of the government should -e appointed. 't that

time, judges ere appointed -y the government in consultation3 ith the Chief Justice of India

!CJI" as provided -y the Constitution. $he government then said that it as not -ound -y the

advice of the CJI. Successive Congress governments thereafter appointed judges ho had

pro&imity to the government. $he saying, that in order to -ecome a judge, it as not important to

+no the la, -ut more important to +no the la minister, -ecame the prevailing isdom. $he

su-version of the independence of the judiciary -y the appointment of convenient judges -ecame

a major issue, especially ith increasing corruption ithin the e&ecutive.

Finally, in 1996, the system prevailing at that time as reversed and the judiciary rested the

control in the matter of judicial appointments from the e&ecutive. $he ords in consultation

ith the chief justice3 ere interpreted to mean, ith the concurrence of the chief justice3. $he

meaning of chief justice3 as interpreted as a collegium of the CJI plus to senior judges of the

court. ' ne ela-orate procedure as laid out -y the court for the appointment of judges, in

hich the role of the government as reduced to returning a name recommended -y the

collegium for reconsideration. If the collegium reiterated its recommendation, the president

ould have no option -ut to go through ith the appointment. =igh court appointments ould

also go through a similar procedure, e&cept that the recommendations there ould originate from

the collegium of the high courts.

In 199, the Supreme Court further tea+ed its judgment of 1996 in a /residential @eference on

this issue. $he collegium as idened from three to five judges. Consultation ith other judges

in the court, ho came from the same high court as the proposed nominee, as also provided.

ut the control over the appointments continued to vest ith the judiciary.


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$his system of appointment of judges -y the judiciary did lead to the depoliticisation of the

judiciary to a large e&tent and did su-stantially improve its independence. ut the process of

appointments as still shrouded in secrecy and +eeping the control over appointments ith

sitting judges, ho had little time from their judicial or+, coupled ith the lac+ of transparency

in such appointments led to nepotism and ar-itrary appointments. 4o criterion for selection as

laid don, nor as any system devised to evaluate various candidates in the one of

consideration on any criteria. 4o system of inviting any applications or nominations as devised

either. $hus the 7uality of appointments did not su-stantially improve even in this system. ven

late Justice J.S. erma, the author of the original judgment, came to say that he did not anticipate

that his judgment ould lead to such poor appointments -y the judiciary.

Selecting a-out 100 judges of the higher judiciary every year in a rational and fair manner is an

onerous tas+ re7uiring a full8time and not an e&8officio -ody. 'n e&8officio -ody of sitting judges

and ministers cannot devote the +ind of time re7uired for this jo-. ;e therefore need a -road8

-ased, independent constitutional -ody that ould ma+e appointments of judges in a transparent

manner -y calling for applications and nominations of candidates and evaluating them on set

criteria. $his -ody can -e on the lines of the Judicial 'ppointments Commission !J'C" of the

Enited Hingdom, hich is also a full8time -ody, hich has ade7uate time, e&pertise and

resources to select the -est candidates.

$he Committee on Judicial 'ccounta-ility !a voluntary -ody of senior layers and retired

judges" proposed a -ill for the constitution of a full8time and independent -ody called the J'C

for the selection of judges to the high courts and the Supreme Court. It as proposed that such a

-ody could -e constituted from among retired judges or other eminent persons ho are selected

in the folloing manner $he chairman to -e selected -y the collegium of all judges of the

Supreme Court. ' second mem-er -y the collegium of all chief justices of the high courts. '

third mem-er -y the Enion ca-inet. ' fourth -y a collegium of the leaders of opposition of the

to =ouses of /arliament, along ith the spea+er of the Ao+ Sa-ha. ' fifth -y a collegium of the

CC, the C' and the CC. ach of these mem-ers of the J'C ould have a tenure of five

years and ould thus -e independent of the government as ell as of the sitting judiciary. $his

-ody ould -e mandated to function transparently and ould have to pu-lish the names of the

persons shortlisted for appointment for the information and comments of the people, -efore the

final selection. eing a full8time -ody, it ould lay don the criteria for selection and ould -e

mandated to go a-out its tas+ in a structured and rational manner. $he -ody ould -e given

ade7uate staff and resources to do justice to its onerous or+.

=oever, neither the government nor the judiciary as interested in creating an independent

full8time -ody as e&ists in the EH to select judicial appointees. ' national judicial commission

-ill of (016 as eventually introduced -y the E/' government, hich sought to create an

appointments commission in hich the appointments pie as sought to -e divided almost

e7ually -eteen the judiciary and the government. $he proposed commission as supposed to

have the three senior8most judges of the Supreme Court along ith the la minister and to


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eminent persons nominated -y a committee consisting of the prime minister, leader of opposition

in the Ao+ Sa-ha and the CJI. $hus, the commission as still conceived as largely an e&8officio

-ody of people ho ould have little time to devote to appointments and it did not lay don any

standards of transparency either in the appointments. $he -ill, hich lapsed ith the dissolution

of the Ao+ Sa-ha, is much orse than the e&isting system since it suffers from the vices of -oth

the pre81996 system and the e&isting system, and does not offer any improvement.

It is therefore essential that the government moves a constitutional amendment -ill to create a

full8time, -road8-ased -ody that ould ma+e appointments to constitutional courts in a

transparent and rational manner. $he minimum level of transparency ould re7uire that the

names of shortlisted candidates ought to -e made pu-lic so that the pu-lic can send any

evidence, if any, against any of the shortlisted candidates to the said -ody, hich ould then ta+e

that into account. ;e need a -ill along the lines suggested -y the Committee on Judicial

'ccounta-ility.

$he writer is a lawyer and founding member of the Aam Aadmi 'arty

A needless confrontation

&! 6eerappa &oily

Freedom and independence of the judiciary have -een ta+en to mean, !a" that -oth the institution

of the judiciary and independent judges are separate and free from interference -y the other

-ranches of the government !e&ecutive and legislature", political parties, other poerful interests

or individuals# and !-" that the individual judge or magistrate is independent and at li-erty toma+e a decision ithout pressure, inducement or promise from any source hatsoever. 'n

independent judiciary must not only -e independent -ut also appear to -e independent.

'rticle 1() vests the president ith the poer to appoint the chief justice of India !CJI" and

judges to the Supreme Court. It is stipulated that the president shall appoint a judge of the

Supreme Court after consultation ith such of the judges of the Supreme Court and of the high

courts as the president may deem necessary. $he appointment of judges of the high courts is also

made -y the president. $he president has to consult the CJI, the governor of the state and the

chief justice of the high court.

$he issue of the appointment and removal of judges as e&amined -y the 4ational Commission

to @evie the ;or+ing of the Constitution chaired -y :.4. en+atachaliah. $he commission

recommended the constitution of a national judicial commission, hich ould have the effective

participation of -oth the e&ecutive and the judicial ings of the state as an integrated scheme

for the machinery for appointment of judges3


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$he government introduced the Constitution !9th 'mendment" ill in the Ao+ Sa-ha in (006.

$his -ill sought to create a national judicial commission !4JC" headed -y the CJI ith to

judges of the Supreme Court ne&t to the CJI in seniority, the Enion minister for la and justice

and one eminent citien to -e nominated -y the president in consultation ith the prime minister,

as mem-ers.

$he Second 'dministrative @eforms Commission is of the vie that the appointment of judges

to higher courts should -e ith the participation of the e&ecutive, legislature and the chief

justice, and should -e a -ipartisan process a-ove day8to8day politics. $herefore, the proposed

4JC should comprise representatives of all three organs of the state % the legislature, the

judiciary and the e&ecutive. Such a -ody can devise its on procedures in identifying and

screening candidates for the higher judiciary.

If e consider the international practice for the appointment of judges to supreme courts in

various countries li+e the EH, ES, France or ermany, they are found to -e appointed -y

political e&ecutives, senates or presidents of repu-lics, or -y elected -odies. It is only in our country that, ith the system of the collegium, the class of judges appoint themselves.

@uma /al, a former Supreme Court judge, has said that the process -y hich a judge is presently

appointed to the high court or the Supreme Court is one of the -est +ept secrets in the country3.

.4. Hhare points out that prior to 1996, hen the primacy vested ith the e&ecutive, eminent

judges ere still appointed to the high courts and the Supreme Court.

/arliament last ee+ passed a constitutional amendment -ill to provide for the 4ational Judicial

'ppointments Commission !4J'C", hich proposes to radically change the process of

appointment of judges -y giving -oth the judiciary and the e&ecutive e7ual say and veto poer.$he 4J'C is mandated to appoint judges of the Supreme Court and the chief justice and judges

of the high courts. It is also empoered to initiate transfers of high court judges.

$he si&8mem-er 4J'C ill comprise the CJI, the to senior8most judges of the Supreme Court,

the Enion la and justice minister and to eminent persons. $he choice of eminent persons ill

-e made -y a high8poered committee composed of the prime minister, the CJI and the leader of

the opposition or the leader of the largest party in opposition. $he to eminent persons ill have

a tenure of three years, and one ill -e a oman, or from a Scheduled Caste, Scheduled $ri-e or

minority community.

In an important improvisation on earlier drafts of the 4J'C, the -ill provides that no name

opposed -y to or more of the si&8mem-er -ody can go through. ' name recommended for

appointment as judge to the Supreme Court or the high courts can -e returned to the 4J'C -y

the president for reconsideration. $he -ill also provides for ider consultation ith ar -odies,

senior advocates and eminent persons -y the collegium of the high court -efore recommending a

name for consideration -y the 4J'C in appointments to the high court. In an important addition,


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the -ill also re7uires that the 4J'C, -efore recommending a name for appointment as judge of a

high court, ta+e the vies of the concerned state governor and chief minister in riting.

's Ependra a&i rote in his contri-ution earlier !BChange must respect -asic structure2, I,

'ugust " $he -asic structure here is the independence of the judiciary and judicial revie. It is

this poer that ultimately decides the essential features of the Constitution. 'ppointments andtransfers of justices definitely affect the -asic structure, and the court should have a say in it. $he

e&ecutive may present evidence -efore the justices on hy the judicial architecture needs to -e

reformed, and ho the judicial collegium has failed the nation. Since almost all the leaders of the

ar -elieve that the judicial collegium has failed in draing the -est and -rightest to -ecome

justices, they should have little difficulty in persuading the court ven under Hesavananda

harati vs State of Herala !hich enshrined the -asic structure doctrine", /arliament has plenary

poers to amend the Constitution. =oever, enacting the J'C Kjudicial appointments

commissionL ithout consulting the court may invite judicial rath, and even lead to a

constitutional crisis.3 $he Hesavananda harti verdict firmly esta-lished the judiciary as the

ultimate ar-iter of hich provisionM laM act violates the Constitution and hich ill pass muster.

$here is a consensus that the 4J'C -e considered an instrument to replace the e&isting

collegium system, o-viously ithout compromising the independence of the judiciary or giving

the e&ecutive superseding authority. ut the ay in hich the 4


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many profound ays? If the anser is yes3 then ould that not -e relevant to hat +ind of

judges e have? Dur understanding of this conundrum ill provide guidance to ho e ought to

select judges rather than the common sight these days on television channels and in nespaper

columns of a priori opinions a-out hat is the right ay to choose a judge.

So to return to the 7uestion of ideology it is important to ma+e a distinction -eteen popular ideology !or hat common citiens might assume is ideology" of the present as against

institutional ideology of historical validity. $his should not -e confused ith a case for -eing

captives of the past in form or su-stance. Institutional ideology is an analytical product of data

a-out political and philosophical positions ta+en -y society from generation to generation -ut

under trained scrutiny, cleansed of distortion and adulteration. $his e&ercise can -e done -y any

trained mind -ut in our system, it is -est done -y judges. $he principle of stare decisis and

folloing precedents is a part of that techni7ue. It does not matter that in a particular case, a

judge gets it rong -ecause the system of appeals reduces the chances of an a-erration leaving a

lasting distortion.

$he E/' and the 4


16/30

parallel in the orld, etc. ut if e -elieve in the Indian genius hy must e feel self8conscious

that no one does it this ay? Some of the -est institutions of the orld share many attri-utes of

the present system of judicial appointments in India, including the shortcomings. $his is not an

appeal to leave things as they are -ecause improvements are alays possi-le and desira-le. ut

e should not -e doing something that focuses unduly on one aspect of the judiciary and leave

the rest to continue in the spirit of -usiness as usual. I have some idea a-out ho restless the

judiciary is a-out its ina-ility to deliver justice that is of high 7uality, e&peditious, afforda-le and

most of all, easily understood -y the common citien. Judges are not o-livious to the flas that

e&ist in the present system and in their on ay, attempt to address them. 'lthough e see some

signs of the political class -eing a-le to forge consensus on the urgency of the intended reform,

there are some serious 7uestions that have surfaced from the judiciary despite its discreet

demeanour in reacting to such pu-lic discussions. Comments from some mem-ers of the

judiciary !al-eit no longer on the ench" should not -e cited as a compelling reason for haste. 'n

institutional conversation -eteen the judiciary and the e&ecutive !on -ehalf of the legislature" is

the need of the hour. $his is too important a matter to -e left to -e decided in a contest -eteendifferent ings of government, sending out a signal to the people that years after Independence

e remain unclear a-out the separation of poers.

$he writer was (nion law minister from &ay -.** to 8ctober -.*-

Se2en 9ualities of highly effecti2e #udges

3ritten by &ohammed Salim

In the a+e of recent controversies, the issue of judges2 appointments has resurfaced. Entil 1996,

the e&ecutive had a role in the appointment of judges in India. In fact, since the inception of the

system of judicial appointments, it has alays remained a prerogative of the sovereign ruler.

In ancient India, +ings used to appoint judges !adhi+itas" after consulting their social mentors

!rishis". $he ritish, after introducing the present judicial system in India, chose judges on the

-asis of advice from the chief justice of the respective high courts, ho ere invaria-ly ritish

-y -irth.


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It failed to -ring a-out much8needed reform -y su-stituting the collegium ith a more

responsi-le, transparent and accounta-le system. $he advisory opinion simply shuffled personsM

authorities to fructify individual am-itions and choices. $here is no a great opportunity for the

legislature to ta+e a comprehensive vie and introduce a system that is not only transparent -ut

also ensures 7uality.

$he 4ational Judicial 'ppointments Commission !J'C" ill has -een passed -y the Ao+ Sa-ha.

:any e&perts, including Aa Commission Chairman './. Shah and /ress Council of India head

:ar+andey Hatju, have advanced their suggestions and innovative arguments on the failure of

the current collegium system ironically, they are the product of that very failed system.

Interestingly, they are for the supremacy of judiciary and ant a majority say for judges. 't the

same time, the unusual strength of the present e&ecutive has given rise to apprehensions

regarding its intervention in judges2 appointments.

Dther than Japan, perhaps only in India do judges appoint judges. $he present system of

appointment suffers from many infirmities. $here is neither any scope for scrutiny nor transparency. $his method of appointments also does not address the diversity in Indian society.

:oreover, it leads to the appointment of judges ho hold similar vies and have the same -road

orientation. It is also prone to encourage nepotism in the judicial system. $he need of the hour is

to stri+e a -alance -eteen the independence of the judiciary and ensuring its impartiality and

accounta-ility.

iven the e&perience of the mergency % hich sa the e&ecutive2s assertion of its role in the

appointment of judges % and undue interference thereafter !including the latest one involving

this government in opal Su-ramanium2s non8appointment", it is imperative to ensure that the

e&ecutive does not end up ith a dominant role. ' mere shift of primacy cannot -e the ay toensure a transparent and 7ualitatively sound system of appointments. 4o o-jective parameter has

-een set in the J'C -ill to ensure the selection of an a-le, competent, honest and educated person

as a judge. Dn the contrary, the scope of su-jective satisfaction of persons ho ill recommend

judicial appointments is enhanced in the -ill. ' -road parameter in respect of procedure for the

shortlisting of candidates has to -e evolved. In this conte&t, the ancient jurist Hatyayana2s

o-servation indicating seven 7ualities to -e considered for the appointment of judges is orth

noting. $hose 7ualities are a+rurha !no ill ill", madhura !politeness", snigdha !dispassionate",

+shamajuto !forgiveness", -icha+shana !educated, having an analytical mind", utsaha-ana

!spirited and hard8or+ing", and nirlo-ha !ithout greed". Enfortunately, the present -ill has not

indicated any such 7ualities. esides ensuring fairness and transparency in the appointment of

judges to the -enches of the higher judiciary, the timely filling up of vacancies in the judiciary is

also an important challenge.

;e can2t afford to see the appointments of judges in isolation. ;hile ma+ing the process more

transparent, -road8-ased and impartial, e must ensure that justice is made availa-le and

afforda-le to the vast population. $here is no need for a separate -ody for judicial standards and


18/30

accounta-ility. $he proposal for a national judicial commission !4JC", ith representatives from

three organs of the state % the e&ecutive, legislature and judiciary % must -e acted upon.

It should -e vested ith poers to conduct in7uiries into the mis-ehaviour of judges and to

impose minor punishment. $o ma+e it more democratic, transparent and participatory, even

representatives from the ar 'ssociation of India and the general pu-lic can -e inducted. $hisould facilitate ider consultations on assessing the suita-ility and integrity of potential

appointees.

$he 4JC should comprise the Chief Justice of India as e&8officio chairperson ith one other

judge of the Supreme Court, nominated -y the collegium of all judges of the Supreme Court, the

chief justice of one of the high courts, nominated -y the collegium of chief justices of all high

courts, the Enion minister for la and justice as e&8officio mem-er along ith to eminent

persons to -e nominated -y a collegium consisting of the prime minister and leader of the main

opposition party in the Ao+ Sa-ha and, finally, a nominee of the ar 'ssociation of India. It

should -e ensured that at least one mem-er is a oman and one eminent person is from the SCMS$M DCM minority communities, prefera-ly -y rotation.

$he writer is a C'& &' in the Lo Sabha

5n defence of the collegium

7 $ $homas

$he appointment of judges at the level of the high courts and Supreme Court continues to -e

pro-lematic, in spite of cosmetic changes -rought in through judicial activism in to stages.

;hat remains is +non as the collegium system. It as formulated -y a nine8judge -ench of the

Supreme Court after hearing long arguments addressed -y top8ran+ing counsel. Initially, the

collegium system as generally elcomed, despite opposition from politicians on the ground

that the judges had arrogated to themselves the poer of choosing judges. ut in due course, it

received criticism from different 7uarters, including mem-ers of the ar. It is true that the

collegium system has remained in force for more than 15 years. 's the years have passed,

-urgeoning criticism that the present system did not remedy the dra-ac+s of the ersthile

mechanism have eventually -ecome more strident.

't least in a fe instances, unsuita-le persons have found their ay to seats of judges in the high

courts. It is, of course, a matter of relief that the num-er of such persons has not selled to

alarming proportions. 't the same time, it ould not -e true to say that no unsuita-le person has

reached the Supreme Court -ench through the collegium system. $he lesson to learn is that

hoever much improvement is sought to -e achieved through changes to the appointments


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process, the efficacy of its or+ing depends on the vision and dedication of the persons

empoered to manage the system.

$he chairman of the Aa Commission of India has suggested that a seven8mem-er judicial

appointments commission !J'C", ith a preponderance of mem-ers from the judiciary, -e

instituted. ut of hat use are the proposed changes if some mem-ers of the J'C function in thesame manner as -efore? ;hat is the guarantee that only persons of impecca-le and proven

integrity, coupled ith the moral strength to assert their dissent !if any" on record, ould fill up

the J'C? =aving -een a mem-er of the collegium of the Supreme Court, I +no ho outsiders

see+ !and get" access so as to canvass for the decision8ma+ing process. I dou-t that the situation

ould change if the proposed composition of the J'C ere to -e implemented. I am also not

prepared to say that the selection of eminent persons3 ould not -ecome diluted in due course,

particularly -ecause of the vagueness in standardising ho these eminent persons3 can -e. I am

sceptical of the outcome of the J'C in the long run, given that the scope for manipulation and

favouritism cannot -e fully eliminated even ithin it.

' former chief justice of the Herala =igh Court had evolved an e&periment hile adhering to the

collegium mechanism. ;hen there ere three vacancies of ar candidates, he invited

recommendations from all his companion judges in the high court, re7uesting them to send at

least five names each. =e got )0 names altogether, and shortlisted them to 10. =e studied their

performance and presented his vies -efore the other mem-ers of the collegium of the high

court. ;hen there as dissent, he e&panded the three8mem-er collegium and o-tained their

vies also. =e made the final recommendation to the Supreme Court. In that process, the Herala

=igh Court gained three very fine judges. I thought that the same could -e folloed -y the chief

justices of other high courts and, in fact, I rote an article in support of it. ut on deeper thought,

I sensed that if the practice continued and remained in place for much longer, the scope for

canvassing ith other judges for interested persons ould have increased greatly and the

e&periment ould have -een rendered ineffective.

$he criticism that the e&ecutive has no no role in the appointment of judges is, to a great e&tent,

misplaced. In my vie, there should not -e any dispute on the proposition that judges should

have the first8stage opportunity to point out ho the -est candidates for judgeship are. ut their

judgements on that score cannot -e treated as infalli-le. ;hen names of candidates are sent -y

the collegium to the e&ecutive, it is definitely possi-le for the e&ecutive to conduct a thorough

in7uiry through such departmental agencies as they could trust. $hen the e&ecutive can send -ac+

the names to the collegium for further consideration and a final decision. Dne change I ish to

propose is to permit the e&ecutive to propose names to the collegium at the initial stage.

;henever recommendations are to -e made for more than to vacancies !it may go up to 15 and

sometimes even to (0", there could -e a temptation for mem-ers of the collegium to compromise

in order to accommodate candidates on -arter considerations. ;henever -ul+ recommendations

have occurred in the past, some not8so8suita-le !if not totally unsuita-le" candidates have


20/30

succeeded in getting access to the list. $his defect can -e effectively eliminated -y restricting

recommendations strictly to one or to vacancies at a time, and definitely no more. In my vie,

the e&isting system can continue ith the modifications indicated a-ove.

$he writer is a former #udge of the Supreme Court

Safeguarding #udicial autonomy

S(:%5$: 'A%$:ASA%A$:;

oth =ouses of /arliament have accorded their legal imprimatur to the 99th Constitution

'mendment ill. Dnce ratified -y at least half of the country2s State legislatures, and once the

/resident2s assent is secured, the amendment ill esta-lish a 4ational Judicial 'ppointments

Commission. $he 4J'C, the amendment provides, shall comprise the Chief Justice of India as

its e& officio chairperson, the to senior8most judges of the Supreme Court folloing the Chief

Justice, the Aa :inister, and to Beminent persons2 to -e nominated jointly -y the /rime

:inister, the Chief Justice of India and the Aeader of the Dpposition. $he 4J'C ill -e

responsi-le for ma+ing -inding recommendations to the /resident for appointing judges to the

Supreme Court and to various =igh Courts.

Criticism of commission

In the immediate a+e of /arliament2s approval of the amendment, hoever, criticism of the

proposed commission, hich ill replace the collegium in ma+ing judicial appointments, has

-een idespread. Some, such as the Supreme Court 'dvocates8on8@ecord 'ssociation, havealready moved the Supreme Court challenging the la for violating the Constitution2s -asic

structure. $he focus here has -een not only on the composition of the 4J'C, -ut also its

or+ings as provided -y the 4ational Judicial 'ppointments Commission ill, (01), hich as

passed simultaneously ith the Constitution 'mendment ill. roadly, the detractors argue that

the proposed las vest e&cessive poer in the e&ecutive, including a potential a-ility to veto

nominations, there-y impinging on the independence of the judiciary. ut these arguments

overloo+ a num-er of +ey considerations. $he ne las have their deficiencies, -ut they are a

product of sustained discussion across all political lines and are e&amples of a non8partisan

process of la ma+ing. ;hat2s more, they have allayed fears that the e&ecutive ould e&ercise

un-ridled control over judicial appointments. 'nd most crucially, the las ould o-literate the

collegium system hich is not only opa7ue and e&tra8constitutional, -ut also, as evidence of the

recent past has shon, an a-ject failure.

In the Constitution !as originally enacted", the poer to appoint judges to =igh Courts and the

Supreme Court rests ith the e&ecutive. 'rticle 1() of the Constitution provides that the


21/30

/resident shall appoint judges to the Supreme Court after consultation ith such of the judges of

the Supreme Court and of the =igh Courts in the States as the /resident may deem necessary for

the purpose. 'nd, here the appointment is of a judge other than the Chief Justice of India, the

/resident is mandatorily re7uired to consult the Chief Justice. Ai+eise, 'rticle (1* provides that

the /resident shall appoint judges to the =igh Courts after consultation ith the Chief Justice of

India, the overnor of the State, and in case of appointment of a judge other than the Chief

Justice, the Chief Justice of the =igh Court concerned.

5ndependent of political influence

;hen drafting the Constitution, the Constituent 'ssem-ly too+ great efforts to ensure that the

judiciary as independent of any coercive political influence. $o that end, it introduced a num-er

of significant provisions in the Constitution. For e&ample, the judges of the Supreme Court and

the =igh Courts serve not at the pleasure of the /resident, -ut until they attain a fi&ed age# hat2s

more, salaries and alloances of the judges are charged from the Consolidated Fund of the State

!hich is incapa-le of -eing a su-ject of a vote -y a Aegislative 'ssem-ly"# discussion in theState legislatures on the conduct of any judge is e&pressly -arred# poers are conferred on the

=igh Court to punish for contempt of itself# and, significantly, judges of the higher judiciary can

-e removed only through a complicated process of impeachment -y /arliament. ut, as valued as

judicial independence as to the 'ssem-ly, it did not see the vesting of the ultimate poer of

appointing judges on the e&ecutive as an infraction of that principle# on the contrary, it vieed

such poer as a vital cog in the chec+s and -alances re7uired to ensure a proper separation of

poers. ' -road process of consultation ith several important authorities as mandated to

further validate the system, -ut the ultimate authority as placed on the /resident. Such a

system, the 'ssem-ly felt, ould instil in the courts, hich ere given ide poers of judicial

revie including the poer to stri+e don las made -y /arliament, democratic legitimacy, and

ould there-y serve as an effective chec+ on judicial poer.

$he ne las have their deficiencies, -ut they are a product of sustained discussion across all

political lines, and are e&amples of a non8partisan process of la ma+ing3

;hen, in Enion of India v. San+al Chand =imatlal Sheth K!19**" SCC !)" 196L, the Supreme

Court found that the ord consultation3 did not mean concurrence,3 it as guided -y these

o-jectives. $he Court held that the opinion of the Chief Justice in ma+ing transfers as not

-inding on the e&ecutive, although a departure from his or her opinion could -e made in

e&ceptional circumstances. ;hile this decision as partially affirmed -y a majority of seven judges, insofar as the appointment process is concerned in the First Judges Case !S./. upta v.

Enion of India, 191 Supp !1" SCC *", the Supreme Court dramatically altered the position in

the Second Judges Case !Supreme Court 'dvocates8on8@ecord 'ssociation v. Enion of India,

!1996" !)" SCC ))1". In the Second Judges Case, it ruled that the ord consultation3 in 'rticles

1() and (1* denoted concurrence,3 and that primacy in ma+ing judicial appointments is vested

ith the Chief Justice. $his decision as later affirmed ith certain modifications in the $hird


22/30

Judges Case !In re /residential @eference, !199" * SCC *69", and it as held that the ultimate

authority to ma+e appointments to the Supreme Court lay ith a collegium of judges comprising

the Chief Justice and his or her four senior8most colleagues.

$hrough the Second and $hird Judges cases, the Supreme Court virtually appropriated unto itself

the poer to appoint judges. 's the nature of appointments made in the last to decades hasshoed, the decisions e&emplified a concern e&pressed -y James :adison in the 'merican

conte&t $he accumulation of all poers, legislative, e&ecutive and judiciary, in the same hands,

hether of one, a fe, or many, and hether hereditary, self8appointed, or elective,3 he said,

may justly -e pronounced the very definition of tyranny.3 =ad the Supreme Court2s decisions in

these cases -een su-stituted -y a Constitution amendment -y /arliament to the same effect, it is

trite to say that such a la ould have -een lia-le to -e invalidated for violating the

Constitution2s -asic structure.

%eplacing a failed system

4o, through the 99th Constitution 'mendment ill and the 4J'C ill, /arliament has merely

sought to realign the process of appointments in consonance ith a general principle of

separation of poers. It is therefore surprising to note that the ills have met ith such vigorous

dissent from important 7uarters. Nuite contrary to the fears propagated -y its critics, the

proposed las ill replace a failed system ith a process that maintains, at the least, an element

of fidelity to the Constitution2s ideals. $he composition of the 4J'C may not -e perfect, -ut it is,

in fact, tilted in favour of the judiciary. If any to of the three judges on the panel -elieve that a

candidate is unsuita-le for appointment, they can together veto the elevation of such a nominee.

$he Enion government, on the other hand, merely has a single vote in the 4J'C, and cannot, -y

itself, place a proscription on any appointment. It ill re7uire the additional -ac+ing of either one of the judges or one of the Beminent persons2 for the government to thart any nomination.

'ny fears that the composition of the 4J'C ill vest an unrestrained poer in the e&ecutive

therefore appear unfounded. ven in the E.H., here the Judicial 'ppointments Commission is

completely divorced from e&ecutive involvement, the Aord Chancellor retains the poer to reject

a nomination made -y such a commission. $he 4J'C might not -e as -roadly constructed as the

E.H. Commission, -ut its constitutional sanction ill infuse in the process of judicial

appointments greater transparency and an enhanced democratic involvement, as is the case in the

E.H. 4o dou-t /arliament ill have to introduce through legislation, as part of the 4J'C,

suita-le infrastructure including the presence of full8time staff, to aid its mem-ers to arrive atconsidered decisions. $he failure to include such a support structure is one of the collegium2s

many shortcomings. ut 'rticle 1()C, introduced -y the ne Constitution'mendment, allos

/arliament that authority. 4eedless to say, any legislation introduced -y /arliament in this

regard, if in violation of any provision of the Constitution or the Constitution2s -asic structure,

can -e struc+ don -y the courts as unconstitutional. ut the argument that the 99th Constitution


23/30

'mendment ill in itself and -y itself is ultra vires the Constitution for infracting the document2s

-asic structure is, at -est, tenuous.

iven that the originally enacted Constitution placed overriding poer on the e&ecutive to ma+e

judicial appointments, it is unfathoma-le ho the proposed system, hich accords the judiciary

not merely a consultative role -ut a determinative one, can -e found to infringe the independenceof the judiciary. $he pre8e&isting provisions, hich the drafters of India2s Constitution inserted to

ensure judicial autonomy, continue to remain in force. It is only the process of appointments,

hich as arrogated -y the judiciary unto itself, hich has -een cali-rated -y the proposed

Constitution 'mendment. $his realignment is -oth in +eeping ith the original intent of the

Constitution2s framers and also ith the larger principle of separation of poers that pervades

the document.

)Suhrith 'arthasarathy is an Ad2ocate in the &adras :igh Court!/

A fatally flawed commission

A%65ND '! DA$A%

oth =ouses of /arliament almost unanimously passed, and ith ine&plica-le haste, to las

that see+ to a-olish the collegium system and replace it ith a 4ational Judicial 'ppointments

Commission !4J'C". $here as very little de-ate and it as clear that :em-ers of /arliament

ere determined to cut the Supreme Court to sie. Dne ould have e&pected that such

momentous changes ould have -een referred to a select committee to consider suggestions and

o-jections of eminent layers and various ar 'ssociations. $he Constitution !99th 'mendment"ill, (01) and the 4ational Judicial 'ppointment Commission 'ct, (01) are -oth seriously

flaed and contrary to elementary principles of constitutional la. oth las ill also -e holly

unor+a-le in practice. $he net result is that a flaed -ut or+a-le collegium system ill no

-e replaced -y an even more flaed and holly unor+a-le Commission system.

(nworable in practice

$he 99th amendment to the Constitution inserts three ne 'rticles % 1()', 1(), and 1()C %

and also amends several other 'rticles under the ostensi-le o-jective of providing a meaningful

role to the judiciary, e&ecutive and eminent persons to present their viepoints and ma+e the

participants accounta-le hile also introducing transparency in the selection.3 ut the

amendments actually contain nothing to ensure either accounta-ility or transparency.

$he fatal fla is the failure to give supremacy to the vies of the judges in the selection process.

Ender 'rticle 1()', the 4J'C has si& mem-ers of hom three are judges % the Chief Justice of


24/30

India !CJI" and to seniormost judges. $he remaining three are the Enion Aa :inister and to

eminent persons3 ho are to -e appointed -y the /rime :inister, the Aeader of the Dpposition

and the CJI. In the :adras ar 'ssociation case, a Constitution ench of the Supreme Court held

that a selection committee to select mem-ers for the 4ational Company Aa $ri-unal !4CA$"

must have an e7ual num-er of judges and civil servants !Secretaries" ith a casting vote to the

nominee of the CJI ho is the chairperson of that committee. If the vies of the judges have to

prevail in selecting mem-ers to a $ri-unal, it is impermissi-le that they ill not prevail hile

appointing Supreme Court and =igh Court judges. $he 4ational Judicial Commission that as

suggested -y the en+atachaliah Committee as a five8mem-er -ody consisting of three

seniormost Supreme Court judges, the Enion :inister and one eminent person.

$he constitutional amendments ill also -e unor+a-le in practice. ;hat happens if there is a

deadloc+? Is it necessary that all the si& mem-ers must -e present at every meeting? Is there any

7uorum? ;hat happens if one mem-er a-sents himself? ;hat happens if the veto poer is

misused to appoint someone undesira-le? =o are the regulations to -e framed?

'rticle 1()C is most sinister and ena-les /arliament to empoer the commission to ma+e

regulations for selecting judges and for other matters.3 $hus, constitutional provisions and

safeguards can easily -e tharted -y regulations framed -y the commission.


25/30

For the appointment of =igh Court judges, the 4J'C 'ct, (01) also re7uires the vies of the

overnor and Chief :inister to -e given in riting and as prescri-ed -y the regulations.3 ut

the 'ct is silent as to hat happens if the overnor or Chief :inister or -oth o-ject. It is no

mandatory that eminent advocates are consulted hile appointing =igh Court judges. ;ho are

the eminent advocates3? ;ell, that ill also -e prescri-ed -y the regulations.

$he collegium system

$he (08year8old collegium system has -een severely criticised even -y Supreme Court judges

ho ere mem-ers of the collegium. $he main allegation is that there is a total lac+ of

transparency. :em-ers of the Supreme Court collegium have also -een accused of e&ploiting

their poer to appoint their close relatives or particular layers as =igh Court judges. Similarly,

personal animosity has resulted in the delay or denial of appointments to the Supreme Court.

Endou-tedly, the collegium system has its failings. ut e cannot forget the manipulation and

humiliation of the judiciary at the hands of political leaders that eventually led to the collegiumsystem. $he controversial Justice :ar+andey Hatju refused to give in to political pressure and it

as the collegium system and a pu-lic interest litigation that led to the appointment of 1*

competent judges to the :adras =igh Court.

If the main o-jection to the collegium system is lac+ of transparency, the -etter and simpler

solution is to ensure more transparency and greater o-jectivity so that the -asis of selection is

made +non to the pu-lic. Dne does not destroy the -uilding if the plum-ing is faulty. Indeed, it

ill ma+e far more sense to have the 4J'C consist of the three senior8most Supreme Court

judges, to retired Supreme Court judges and to retired Chief Justices of =igh Courts.

In the end, the 4J'C ill destroy the independence of the judiciary. $he involvement of the Aa

:inister, the leader of the Dpposition, the overnors and Chief :inisters in the appointment of

=igh Court judges ill inevita-ly lead to serious political manipulation. In 19*6, Indira andhi

struc+ a major -lo to judicial independence -y the shameful supersession of judges. Forty years

later, /arliament has thoughtlessly created a Commission that the nation ill deeply regret. For

the judiciary at least, acche din3 may soon -e over.

)Ar2ind '! Datar is a senior ad2ocate of the &adras :igh Court!/

:as collegium system of #udges= appointment outli2ed its utility>


26/30

0y Ashish $ripathi

=o should the judges -e selected to higher judiciary?

$his 7uestion has -een -othering not just the top echelons of judiciary in India -ut the e&ecutive

too. $hough the Bcollegium system2 hich appoints judges has -een in place for 7uite some timeno, there have -een murmurs of dissatisfaction over the practice in different 7uarters.

$he collegium system % hich is folloed in the appointment of judges to the supreme court

and the high courts has recently -een challenged in the supreme court. $he petitioner, @ajasthan8

-ased Sura India $rust ants the court to declare the system Bultra vires2 and Bunconstitutional2

-ecause the constitution does not mention it anyhere and it has -een -rought into e&istence

through the judgements of the supreme court. $he -ench, hich heard the matter, referred it to

the Chief Justice of India for Bappropriate direction2 as the petition raised Bcomplicated legal

issues.2 Dn its part, the government has said that the matter re7uired Breconsideration.2

$he trust 7uestioned to significant verdicts of the ape& court in 'dvocate on @ecord

'ssociation vs Enion of India and Dthers2 !1996" and Special @eference 4o 1 of 199 that have

esta-lished the primacy and supremacy of the collegium system in the appointment of judges to

the higher courts. $he collegium % hich the critics call as judges appointing themselves %

comprises four senior most judges in the supreme court and the Chief Justice of India and three

more senior most judges in a particular high court including its chief justice.

Former


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/ro-a-ly, that is hy former


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;ith the passage of the 1(1st Constitutional 'mendment ill and the attendant 4ational Judicial

'ppointments Commission ill, the collegium system of appointments, no (1 years in the

ma+ing, is sought to -e replaced -y the nely created 4ational Judicial 'ppointments

Commission !B4J'C2". Ensurprisingly, concerns over this ne method of judicial appointments

have -een articulated -oth in terms of a perceived incursion intojudicial independence as ell as

the logistical uncertainties for the 4J'C, hich is tas+ed ith appointments to all courts of the

higher judiciary. $his stance is tempered ith a candid admission as to the limitations of the

collegium system, hich as is argued, although imperfect, still remains a relatively -etter mode

of appointments in comparison to the proposed 4J'C.

'll of these fears are valid, from a stand point of preserving a constitutional -alance intended to

secure an optimal degree of judicial independence as ell as 7uestions of efficacious

constitutional design. I ish to hoever move aay from these macro level concerns, voiced in

terms of ho the 4J'C may eventually vote, the undefined criteria of appointment of eminent

persons3, the dangers of a veto and possi-le e&ecutive capture of the 4J'C. In this post, I ish

to discuss certain alarming provisions ithin 4J'C 'ct, that should alert us to the possi-le ays

in hich pervasive legislative control may -e e&ercised over the nely contemplated

appointment procedure.

$he 4J'C 'ct, (01) is passed in pursuance of the nely inserted 'rticle 1()' and 1() hich

esta-lishes and gives to the 4ational Judicial 'ppointments Commission constitutional status,

hile at the same time descri-ing its composition, functions and poers. Ender the 4J'C 'ct,

the procedure to -e folloed for appointments to the =igh Court as ell as the Supreme Court is

clearly spelt out. :ost importantly, in furtherance of the nely inserted 'rticle 1()C, the 4J'C

'ct, vests -oth the Central overnment as ell as the Commission itself, ith rule ma+ing

poer to further define the manner in hich appointments are to -e made.

$he rule ma+ing poer of the Central overnment is rooted in Section 11, hich provides for

the poer to fi& the remuneration and other service conditions for the mem-ers of the 4J'C.

Section 11!("!c", in the nature of a residuary clause, considera-ly e&pands this rule ma+ing

poer -y stating any other matter hich is to -e, or may -e, prescri-ed, in respect of hich

provision is to -e made -y the rules.3 Dn the other hand, the rule ma+ing poer of the 4J'C

itself is rooted in Section 1(, and empoers the Commission to prescri-e regulations for the

criteria to -e considered for judicial appointments, the criteria for consulting mem-ers of the -ar

for such appointments and other important su-stantive and procedural 7uestions.

'n immediate concern, given the ide and overlapping rule ma+ing poer of the Commission

and the Central overnment, is a potential for conflicting rules, and an uncertainty as to hich

set of regulations ould prevail, if such a conflict ere ever to arise. $his fear is not entirely

unfounded, since the Aa :inistry is actively involved in the functioning of the Commission.

$he Aa :inister himself is a mem-er of the 4J'C, and the :inistry is tas+ed ith promptly

forarding details as to prospective judicial vacancies, to ensure timely appointments.


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Considering this intimate interface -eteen the Aa :inistry and the 4J'C, it ould -e natural

to foresee a situation in hich the Aa :inistry see+s to regulate the functioning of the 4J'C,

hich may potentially over lap, and orse still, conflict the rules of the Commission.

:ore trou-ling hoever is Section 16 of the 4J'C 'ct, hich su-jects the rules, made in

furtherance of this act !-oth -y the Central overnment as ell as the 4J'C" to alteration -y -oth houses of parliament. Su-8ordinate legislation drafted -y the e&ecutive is not su-ject to a

uniform standard of revie -y /arliament, and may vary depending on the terms of the statute

vesting such poer. enerally hoever, statutes re7uire that drafted rules -e laid -efore -oth

houses, and changes may -e made -y the parliament ithin 60 days of such laying !resem-ling

Section 16 of the 4J'C 'ct". @arely, is the operationaliation of such rules su-ject to prior

parliamentary approval. Su-8ordinate legislation drafted -y judicial -odies under the Indian

constitution are 7ualitatively distinct, and are not su-ject to similar oversight. For instance, under

'rticles 1)5 and ((9, the Supreme Court and =igh Court respectively, are granted rule8ma+ing

poers for the discharge of their constitutional duties as organs of the higher judiciary.

'lthough the scope this rule ma+ing poer varies, the purpose -ehind the vesting of such poer

in constitutional courts, is to empoer them to draft such regulations as may -e necessary for the

proper discharge of their duties. $oards that end, as ell as to further secure judicial

independence, the rules drafted -y the Supreme Court under 'rticle 1)5 are not made su-ject to

the Enion /arliament, -ut instead su-ject to the confirmation -y the /resident. Similarly, rules

made -y the respective =igh Courts are not su-ject to modification or approval -y the State

Aegislatures, -ut are su-ject to approval from the overnor of such a state.

Considering the proposed 4J'C is a constitutional -ody, and that it performs a vital judicial

function, ithout hoever -eing a judicial organ, the rules made -y the Commission, should not -e su-ject to parliamentary modification. $he a-ility of parliament to alter, in any manner,

hosoever insignificant, the regulations of the commission, seriously impedes the a-ility of the

4J'C to determine for itself, the relevant criteria to -e considered for the manner and method

for judicial appointments. $his is not to suggest that the regulations of the 4J'C ould -e

su-ject to no safeguards hatsoever. Ender 'rticle 1)5 and ((9, rules drafted -y judicial organs

continue to -e su-ject to judicial revie, and may -e struc+ don if repugnant to any

constitutional provision. $he rules of the 4J'C, should therefore -e treated of such a li+e nature,

and should -e made su-ject only to judicial revie.

Section 16 of the 4J'C 'ct, should then alert us to the indirect, yet significant manner in hichthe government may continue to retain unjustified supervisory poers over the Commission. If

the rationale for the creation of the 4J'C is that judicial appointments must -e reclaimed from

the e&clusive domain the judiciary, then surely, it must also -e insulated from governmental

interference in the finer points of its functioning and parameters of deli-eration. Importantly

then, is the need to de-ate the constitutionality of the 4J'C, not merely in -road claims of

judicial independence, -ut in the more minute details of ho such functionaries are to operate


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and hether the intended constitutional space for such a Commission to operate in, is

encum-ered -y unarranted government presence.

Interestingly, 'run Jaitley !the then leader of opposition" delivered a strident and informed

speech in support of the ne appointment procedure. 'mong the many valid points he made, he

called for a shift aay from impressionistic3 judicial appointments toards a more o-jectivecriteria for assessing prospective judges. =e illustratively stated that the proposed commission

hile deciding the merits of a candidate should loo+ into hisMher performance at the -ar,

academic and scholarly or+, record of reported judgments !if any" and pro-ity as a judicial

officer. $hese are no dou-t valid points of consideration, and ill surely form the -asis of further

regulation of the 4J'C. If these criteria are meant to su-stitute judicial opa7ueness in

appointments, hich they undou-tedly should, then these criteria must e7ually not -e su-ject to

suspect alteration -y the Enion /arliament.

Collegium System and National Judicial Appointments Commission

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