This article deals with the methods of appointment of judges in the
Judiciary. The appointment of judges is an important aspect of judicial
independence which requires that in administering justice judges should be free
from all sorts of direct or indirect influence of political or non political
bodies. The independence for judiciary is very important so that the judges can
be impartial and perform their duties effectively and without any sort of fear
The freedom of judges has a close relationship with judicial
appointment as the appointment of Judge by the head of the state is followed in
most of the countries of the world. Appointment by the head of the state with
the consultation of the Lord Chancellor was essentially the British method which
was adopted in the Indian Constitution provided under Article 124 of Indian
Constitution states that:
Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Court in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of
sixty five years: Provided that in the case of appointment of a Judge other than
the chief Justice, the Chief Justice of India shall always be consulted.
According to this Article, the Judge should be appointed by the President with
the consultation of Chief Justice of India and the senior Judges of the Supreme
Court. The reason for the consultation with the Chief Justice of India and the
Judges of the Supreme Court is that they are well qualified by reason of their
long tenure. But in the case Supreme Court Advocates-On-Record Association V.
Union of India
, popularly known as THREE JUDGES CASE the concept of collegium
system was evolved.
This article includes the concept of collegium system, its origin, advantages
and the disadvantages, what steps were taken to demolish this system and the
solution. In short this paper critically analysis the appointment of the Supreme
Court Judges. Openness and transparency in making appointments essentially
depend on the mechanisms for appointment of judges.
The mechanisms for judicial
appointment plays an important role in selecting the persons having the
professional skills and qualities that are required for judges in an independent
judiciary. This paper seeks to examine the nature of the mechanisms for
judicial appointment which exist around the world. Its main purpose is
to analysis how far the existing mechanisms for judicial appointment are
effective in maintaining judicial independence and public confidence in the
Origin Of The Collegium System:
The word Collegium
is nowhere mentioned in the Constitution, it has come in
force as per Judicial Pronouncement. The origin of the concept for establishment
of the system may be traced by the recommendations of the Bar Council of India
made on 17 October 1981, during a national seminar of the lawyers at Ahmedabad.
It was recommended that there should be a collegium system for the appointment
of the Supreme Court Judges by the following authorities:
- The Chief Justice of India
- Five senior Judges of the Supreme Court
- Two representatives who would be representing the Bar Council of India
and the Supreme Court Bar Association.
The recommendation of such a Collegium system should be binding on the President
though he can say for reconsideration on certain grounds.
Later on, 30 December 1981, Bhagwati Judge of the Supreme Court focused on the
necessity of establishing collegium system in India in the case S.P. Gupta v
Union of India
. In elaborating on the meaning of the word consultation, Bhagwati J endorsed the views of Krishna Iyer J expressed in Union of India v
Sankalchang Himmatlal Sheth that 'We agree with what Krishna Iyer, J. said in
Sankalchan Sheth Case
consultation is different from consentaneity. They
may discuss but may disagree; they confer but may not concur'. This is
reminiscent of the views of Dixon CJ of Canada who had said, '[The Prime
Minister and the Minister of Justice with whom the final choice on appointment
rests] feel free to consult me, I feel free to give views which they are free to
take or not to take'.
However, Bhagwati J in the First Judges' Case expressed
his dissatisfaction with the existing 'mode of appointment of judges in India in
which the authority to select judges has exclusively been vested 'in a single
(the President) whose choice 'may be incorrect or inadequate' and
'may also sometimes be
imperceptibly influenced by extraneous or irrelevant considerations.'
he considered it unwise to entrust power
particularly to make crucial and
appointments, such as judicial appointments, to single individual (the
President) without putting checks and controls
on the exercise of such a
power. Accordingly, he suggested that:
there must be a Collegium to make
recommendation to the President in regard to appointment of a Supreme Court or
High Court Judge. The recommending authority should be more broad-based and
there should be consultation with wider interests.
If the Collegium is composed of persons who are expected to have knowledge of
the persons who may be fit for appointment on the Bench and of qualities
required for appointment and this last requirement is absolutely essential- it
would go a long way towards securing the right kind of Judges, who would be
Establishment Of Collegium System With Judicial Pronouncement:
The Collegium of judges, as proposed by Bhagwati J, could only be established in
India through the passing of an amendment to the provisions of Articles 124(2)
and 217(1) of the Constitution. But in 1993, a majority of Nine-Judge
Constitutional Bench of the Supreme Court in the Second Judges' Case and in
1998, the unanimous opinion of the nine- Judge Constitutional Bench of the
Supreme Court in the Third Judges' Case did accomplish the task of setting up of
the collegium of judges.
The composition of the collegiums as contemplated by Bhagwati J
in the First Judges' Case that it 'should be more broad- based and there should
be consultation with wider interests' was completely ignored; the membership of
the Collegium was kept narrow-based (i.e. confined only to the judges of the
The Second Judges’ Case, 1993
In the Second Judge case, J. S. Verma overruled the majority view in the First
Judges Case, giving primacy to President in the matter of appointment of Judges
to superior courts. Verma J held that the opinion given by the CJI in the
consultative process had to be formed taking into account the views of the two
senior most judges of the Supreme Court. This would ensure that the opinion of
the Chief Justice of India was not merely his individual opinion, but an opinion
formed collectively by a body of men at the apex level in the judiciary.
the Chief Justice of India is expected to take into account the views of his
colleagues in the Supreme Court who are likely to be conversant with the affairs
of the concerned High Court. The Chief Justice of India may also ascertain the
views of one or more senior Judges of that High Court whose opinion, according
to the Chief Justice of India, is likely to be significant in the formation of
The great weight should be given to the opinion of CJI and senior most Judges of
Supreme Court. The primacy should be given to CJI in the matters accordance with
the appointment of Judges of Supreme Court. He further elaborated the situations
when non-appointment was permitted and justified.
if the final
opinion of the Chief Justice of India was contrary to the opinion of the senior
judges consulted by the Chief Justice of India and the senior judges were of the
view that the recommended was unsuitable for stated reasons, which were accepted
by the President, then the non-appointment of the candidate recommended by the
Chief Justice of India would be permissible. Similarly, when the recommendation
was for appointment to a High Court, and the opinion of the Chief Justice of the
High Court conflicted with that of the Chief Justice of India, the
non-appointment, for valid reasons to be recorded and communicated to the Chief
Justice of India, would be permissible.
Thus, the President's role as the appointing authority is reduced to the
minimum. The word 'consultation,' used in Articles 124(2) and 217(1) of the
Constitution, tends to be interpreted as 'concurrence' observing that
concurrence of the Chief Justice of India, who was best equipped to assess the
true worth of the candidates for adjudging their suitability, was needed for any
higher judicial appointment except certain cases for strong cogent reasons
disclosed to the Chief Justice by the executive and in the absence of consensus,
his opinion, formed collectively after taking into account the views of senior
colleagues, would hold primacy. This procedure devised by Justice Verma for the
appointment of judges of superior courts in India was, according to him, the
best method, in the 'constitutional scheme'.
Third Judge’ Case
In Third Judges Case, the Nine-Judge Bench opined the following points with
reference to the appointment of judge:
- The opinion of the CJI, having primacy in the consultative process and
reflecting the opinion of the judiciary, has to be formed on the basis of
consultation with the collegium, comprising of the CJI and the four senior most
Judges of the Supreme Court. The Judge, who is to succeed the CJI should also be
included, if he is not one of the four senior most Judges. Their views
should be obtained in writing
- Views of the senior most Judges of the Supreme Court, who hail from the
High Courts where the persons to be recommended are functioning as Judges,
if not the part of the collegium, must be obtained in writing.
- The recommendation of the collegium alongwith the views of its members and
that of the senior most Judges of the Supreme Court who hail from High Courts
where the persons to be recommended are functioning as Judges should be conveyed
by the Chief Justice of India to the Govt. of India.
- The substance of the views of the others consulted by the Chief Justice
of India or on his behalf, particularly those of non-Judges should be stated
in the memorandum and be conveyed to the Govt. of India.
- Normally, the collegium system should make its recommendation on the basis of
consensus but in case of difference of opinion no one would be appointed, if the
- If two or more members of the collegium dissent, CJI should not persist with
- In case of non-appointment of the person recommended, the materials and
information conveyed by the Govt. of India, must be placed before the
original collegium or the reconstituted one, if so, to consider whether the
recommendation should be withdrawn or reiterated. It is only if it unanimously
reiterated that the appointment must be made.
- The CJI may, in his discretion, bring to the knowledge of the person
recommended the reasons disclosed by the Govt. of India for his non-appointment
and ask for his response thereto, which, if made, be considered by the collegium
before withdrawing or retirating the recommendations.
- Merit should be predominant consideration though inter-seniority among
the Judges in their High Courts and their combined seniority on all India
basis should be given weight.
- Cogent and good reasons should be recorded for recommending a person of
outstanding merit regardless of his lower seniority.
- For recommending one of several persons of more or less equal degree of
merit, the factor of the High Courts not represented on the Supreme Court,
may be considered.
- The Judges passed over can be reconsidered unless for strong reasons, it
is recorded that he be never appointed.
- The recommendations made by the CJI without complying with the norms and
requirements, are not binding on the Govt. of India.
According to Bharucha J, the principal objective of consultation with a
plurality of judges, terming it as a Collegium of judges, by the Chief Justice
of India, in the formation of his opinion for recommending candidates for
appointment to the Supreme Court, was to ensure that the best available talent
is brought to the Supreme Court Bench. For, the Chief Justice of India and the
senior most Judges, by reason of their long tenures on the Supreme Court, were
best fitted to achieve this objective.
Therefore, S. P. Bharucha J expressed his
opinion to the effect that 'it is desirable that the Collegium should consist of
the Chief Justice of India and the four senior most Judges of the Supreme
Court.' Thus the number of senior-most judges of the Supreme Court as the member
of the Collegium was increased from two to four.
Distinct View Given By The Judges
Justice J Chelameshwar opposed the collegium system stating that, the need for
transparency is more in the case of appointment process. Proceedings of the
collegium were absolutely opaque and inaccessible both to public and history
barring occasional leaks. The process of appointment was wholly illogical &
inconsistent with the foundations of theory of democracy & a doctrinal hearsay.
Supreme Court Latest Opinion On Collegium System:
Needless to say, in the meanwhile, the process of appointment of judges through
the collegium system will continue and shall not be put on hold.
The court said that the existing collegium system needed to be improved and
sought suggestions from senior lawyers, lawyer’s organization and the general
The following were the suggestion provided in the meeting:
- It must be made compulsory to have a certain number of women judge in
courts and that will go a long way in ensuring sensitivity.
- The MOP should be based on four criteria – transparency, eligibility
criteria for judicial appointments, a permanent secretariat to assist the collegium and a
mechanism for complaints against candidates.
- Court should either leave the MOP entirely to the govt., or direct the
govt. to frame it.
Steps Taken By The Govt
It is ironic that Verma J, the author of the leading judgment in the Second
Judges' Case, which gave a tentative shape to the Collegium system of
appointment of judges in 1993, after a passage of time found faults in the
working of the system and went to the extent of saying that: 'judicial
appointments have become judicial disappointments,' and that 'working of the
judgment now for some time is raising serious questions, which cannot be called
unreasonable; therefore some kind of rethinking is necessary.'
Thus, Verma J
felt the necessity of introducing an improvement in the Collegium system but
stopped short of suggesting replacement of the mechanism. The existing political
dissatisfaction with the present system of appointment would be evident from the
facts that most of the political parties and groups, including the National
Democratic Alliance, the Congress (I), and the left parties had promised in 1999
Lok Sabha election manifestos to establish a National Judicial Commission in
place of the Collegium.
After ten years of the establishment of the Collegium
system in 2003, the Government of the National Democratic Alliance made an
attempt to replace the system of the Collegium with a National Judicial
Commission (consisting of three ex-officio judicial members and two executive
appointees) through the presentation of the Constitution (Ninety-Eighth
Amendment) Bill before the Lok Sabha - the Lower House of the Parliament.
Bill, which was before a Standing Committee, lapsed because of the dissolution
of the Lok Sabha. Later in its Report of 2007, the Parliamentary Standing
Committee on Law and Justice stated that after the 1993 judgment in the Second
Judges' Case, the role of the executive in the appointment of judges has almost
been abolished and, as such, recommended that both executive and judiciary
should be involved in the process of appointment, with the executive having
It also suggested that the empowered committee and the National
Judicial Council could make the final recommendation instead of the Collegium.
The Government accepted the Parliamentary Standing Committee's recommendation to
do away with the Collegium of judges.
However, in order to ensure greater
transparency and role of the executive in the appointment of judges of the
Supreme Court and the 21 High Courts, the Union Law Ministry drafted a
constitution amendment bill to replace the existing Collegium system with a
system of National Judicial Commission- one for the appointment of judges to the
Supreme Court and another for appointment of judges to the High Courts.
July 2012, the Law Ministry introduced changes in the Bill to replace the
proposed two-tier National Judicial Commission system with a single-tier. At the
same time, a new provision has been incorporated into the Bill providing for the
attendance of the relevant Chief Minister in the meeting of the Commission if
his input is considered necessary for the appointment of High Court judges.
provision is aimed at doing away with the time consuming practice of seeking the
Chief Minister's opinion regarding the appointment of High Court judges in file.
Although the government has been drafting and redrafting the Bill for nearly two
years, it does not have the requisite majority in the Parliament to get the Bill
passed without the support of the opposition party, the BJP, which has, in the
meantime, expressed its reluctance to support the Bill.
The Central Govt. has criticized the collegium system by stating that it has
created an imperium in imperio that means empire within an empire i.e. within
the Supreme Court. This has given the Supreme Court immense power and that can
lead to the misuse of the power and that will harm the regulation of the
To make the judiciary more transparent, the Govt. brought 99th Amendment in 2014
and the National Judicial Appointment Commission Act, 2014. However, both the
Amendment and the Act were challenged in the Supreme Court. Supreme Court
declared both unconstitutional as well as void.
NJAC is a committee that consist of six people- CJI, 2 Senior Judges of Supreme
Court, law Minister and two eminent persons. Eminent person is to nominated for
3 years’ term by committee consisting of Chief Justice, Prime Minister and
leader of opposition in Lok Sabha and they are not eligible for re- nomination.
In NJAC, members have veto power. If two members veto a nomination or decision,
the matter of appointment is dropped. But the act and amendment was declared as
void by the Supreme Court.
Advantages And Disadvantages Of Collegium System:
- The collegium system increases secrecy. Ruma Pal, a former Judge of the
Supreme Court of India, stated that this system is one of the best kept secret
in the country. It kept secret within the four walls of the body for proper and
effective functioning of the institution that makes the system opaquer.
- The collegium system makes Judiciary independent from the politics. It
separates the judiciary from the influence of executive and legislative. With
the Govt.’s influence judiciary can work without any fear and any sort of
favour. This ensures the regulation of the doctrine of separation of power.
- There are many cases in which the judges of the Supreme Court were
transferred because of the political influences. So the power given to
executive organ for transferring the judges would lead to decrease the
independence of judiciary as well as it will stop the judiciary organ to
work effectively. For fair functioning collegium system would be best as it ensures the independence
and allows the judge to perform their duty without any fear or without any
interference and influence.
- The executive organ is not specialist or does not have the knowledge
regarding the requirements of the Judge as comparative to the CJI. Collegium
system ensures that the deserving one is sitting in the position of the Judge in
- This system does not provide any guidelines in selecting the candidates
for the judge position of the Supreme Court because of which it leads to
wide scope for the nepotism and favoritism. Because of which the deserving
candidates are unable to appointed as the Judge.
- The collegium system does not have any criteria for testing the candidate as
well as they don’t investigate any background of the candidates and they are not
accountable to any administrative body that may lead to wrong choice of the
candidate while overlooking the right candidate.
- Already there are many cases pending in the Court, they are having
limited time the power given to them for the appointment would lead to
burden to Judiciary.
- The principle of check and balance is violated in this system. In India,
three organs work partially independently but they keep check and balance
and control on the excessive powers of any organ. As Judiciary is dependent
on the executive for the appointment of the Judges with the consultation of CJI and the
senior most Judges of SC; but this system gives the immense power to Judiciary
to appoint Judges, so the check on the excessive powers would not be ensured and
misuse of powers can be done.
- This system leads to non transparency of the judicial system, which is
very harmful for the regulation of law and order in the country.
Rule Of Law Convention, 2018 On Collegium
The Bar Association of India held the Rule Of Law Convention 2018 on Judicial
Reform between 9 and 11 February, 2018; saw a participation of nearly 200
delegates from 21 states representing Bar Councils and High Court and District
The Conference was addressed by Mr. Vikas Singh, President, Supreme Court Bar
A number of critical topics including Acute Shortage OfJudges, Appointment,
Transfer and Posting of Judges in Higher Judiciary, How to ensure speedy
justice, Relook on Collegium System, Substantial non-utilization of funds for
judiciary and transparency in the Higher Judiciary were discussed.
The main proposition was that whether the Collegium system of appointments
should function as it was rejected completely and unanimously. The proposition
as to whether Collegium system should be abolished and the Executive should be
allowed to play a role in selection of judges was also rejected only 14 votes in
favour and lastly whether the Collegium system of appointment be continued with
significant reforms and changes to bring in transparency and evolving mechanisms
to ensure the best talent is appointed to court was carried.
Some suggestions were discussed that are mentioned below:
Additional Solitor General, Pinky Anand Stated That:
- Judicial appointments should not get delayed or postponed due to non-
finalization of the Judges. The filling of judicial vacancies is the duty of
every organ of state.
- It was noted that checking of background while appointing is flawed and
such ground checks are purposely leaked in public domain to create doubts
about integrity of candidates. Also, the machinery to carry out background
checks is not misused must be assured.
- A well resourced independent secretariat for judicial appointments and a
data base of eligible candidate be created. So that vacancies are known in
advance for faster judicial remedy.
- Both the Judiciary and the Executive should work together in a spirit of
collaboration to ensure speedy filling up of vacancies by keeping supreme
the national and public interest in mind.
the paradox we are facing
today is that problem resolvers are the problem makers. Further she added that
sum and substance of views taken by such committees is that power of appointment
of judges should be vested either with the govt. or with an independent judicial
She further pointed out that we had the 99th Constitutional Amendment,
approved and ratified by both the Houses, a rare feature, almost universally
ratified by all parties across the board, and yet it was struck down by the
She concluded by saying that, what do we look for in a system? We
look for Constitutional validity and even if does not meet the test of
constitutionality, it may still pass the test if it delivers the goods. The collegium system fails on both parameters. That is why we are here today to try
and bolster our institutions.
We need to ensure that institutional creditability is upheld by whatever means
it takes even if it needs a perestroika to overturn this entire position as it
stands today which has proved to be a disaster.
Comparison With Alternative Option Of Appointment Of Judges
In Canada:The power to appoint the judges resides with the federal Govt. the federal
Minister of Justice. The Federal Minister of Justice appointed special advisers
to gather the information about the potential and the deserving judges and then
the list is transferred to the Canadian Bar Association National Committee who
check the background of the candidates before pronouncing the candidates
qualified or not qualified for judicial office. The final selection is laid
before the Cabinet for approval and forwarding to the Governor General, in whose
name the appointment is made.
In Germany:The appointment of the Judges is made through the process of the election. Half
the members of the Federal Constitutional Court are elected by the executive and
half by the legislative.
In USA:The appointments are made by the President. Judges of the Supreme Court are
nominated by the President and confirmed by the United States Senate.
In UkThe SC Judges are appointed by a five peoples’ selection commission. That
committee consists of SC President, his deputy and one member each appointed by
the JACs which consist of lay person, members of judiciary and the bar; of
England, Scotland and Northern Ireland.
All mechanisms for judicial appointment may have some advantages
and disadvantages and therefore, no particular system can be treated as the
best system. Despite this, in order to maintain public confidence in the
appointment system and to ensure judicial independence the commission system is
perhaps a very effective mechanism for judicial appointment.
However, to ensure the effectiveness of this mechanism the commission should be
representative in nature comprising members of the executive, legislature,
judiciary, legal profession and lay persons. In addition, it should be ensured
that the commission uses a system which is transparent and open to public
scrutiny. In this regard the composition and working system of the South African
Judicial Service Commission may be an acceptable model. Such a mechanism may be
very effective to ensure the appointment of the best-qualified people to
However, the Collegium of judges has not been performing its task of
recommending candidates for appointment as judges in the superior courts
satisfactorily. No guidelines or criteria are being followed by the Collegium in
discharging its functions. Its decisions 'are secrecy, a mystery and enigma'.68
In the words of Iyer, the Collegium 'has been dilatory, arbitrary and smeared by
favorites and the 'present collegiate elitism is the vanishing point of
democratic values in the justice pyramid.'
Nevertheless, the Government of India made an abortive attempt in 2002 to give a
decent burial to the Collegium system of appointment of judges by establishing a
National Judicial Commission with a predominance of judicial members. The
Constitution (98th Amendment) Bill, placed before the Lower House of the
Parliament for the establishment of the Commission, was ultimately lapsed.
The Union Law Ministry has presently (in May 2012) been preparing a draft bill
for establishing two Judicial Commissions in India, one for dealing with the
appointment of judges of the Supreme Court and another for the appointment of
Judges of the High Courts. On the other hand, a writ petition challenging the
legality of the establishment of Collegium of judges has been pending before the
Supreme Court of India for decision.
Therefore, it can reasonably be expected that, within a short period of time,
two judicial commissions would be established in India, in order to ensure that
the matter of appointment of judges in the superior courts of India does not
result in a politically biased judges who are or feel beholden to the appointing
In this context, the immortal words of former Chief Justice of Australia, Sir
, are worth-quoting:
Judicial commissions, advisory Committees and procedures for consultation [with
the Chief Justice] will be useless unless there exists, among the politicians of
all parties, a realization that the interest of the community requires that
neither political nor personalpatronage nor a desire to placate any section of a
society, should play any part in making judicial appointments.
- The Indian Constitution by Durga Das Basu
- The bare Act of Indian Constitution
- Hein Online
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