"Our judiciary must both be independent of the executive and must also be
competent in itself. And the question is how these two objects could be
In our nation, the judiciary is the primary cornerstone of democracy, assisting
in the efficient operation of democracy. Judges are the most visible members of
the legal system. Judges must be efficient in order for the judiciary to be
truly effective. While drafting the Indian Constitution, the Founders emphasized
the importance of an autonomous justice system.
As a result, it is critical to ensure that judges are appointed in a proper and
non-biased manner. Several clauses in the Constitution of India govern the
nomination of justices, and they must be followed in every aspect of the
Provisions of Indian Constitution regulating the nomination of Judges:
Controversy and appointment of judges
- District Courts
Article 233 of Constitution of India addresses the nomination of District
Judges. As written in the article. After consultation with the State
governor and also the High Court justices having jurisdiction with in States
can the nomination be made. The High Court has authority over persons in
judicial service in district courts and other subordinate courts, according
to Article 235 of Indian Constitution.
The person has to have at least 7 years of legal experience. The candidate must
not have been working in either Union or State institution and should be
certified for employment by High Court.
- High Court
Judges of High Courts, according to Article 217 of Constitution can be nominated
by only the President's order and stamp, and after engaging the 'Chief Justice
of India' and the governor of the state. To help with appointments, the
consultations must be extremely effective, which means that all relevant
information about the individual being proposed must be provided, with no
material concealed. According to the Third Schedule, the judges appointed must
swear an oath before the Governor.
The chosen person should be an Indian citizen. The nominee should have served on
a judicial post in India for at least ten years or be a lawyer in the High Court
for at least 10 years.
- Supreme Court:
The selection of the Chief Justice and Supreme Court Justices is governed by
Article 124 of the Indian Constitution. To appoint justices, the collegium
procedure is utilized. Every Supreme Court Judge should be chosen by order under
the President's signature, after taking opinion with 'Supreme Court and High
Court Judges' in states deemed appropriate for the objective by the President.
The individual must be an Indian citizen and have served as a Judge of a High
Court or 2 or additional such Courts in succession for at least five years, or
even as a lawyer of a High Court or 2 or additional such Courts in succession
for at least 10 years, or be a significant jurist in the President's perception.
"The expectation from the judiciary, to safeguard the rights of the citizens of
this country, can only be ensured, by keeping it absolutely insulated and
independent, from the other organs of governance"2
Given the fact that it's not stated explicitly, the seniority principle has
always been respected in the selection of Judges3. The President appointed
justices after consulting with the Chief Justice and other judges But, the
nomination of "Justice A.N. Ray" as Chief Justice of India in April 19734
created a huge political fight since he was selected, bypassing senior judges.
The principles of law relating with nomination and transfer of judges were
reviewed in "S.P. Gupta vs. Union of India"5,1981 wherein the Supreme Court held
that Chief Justice's opinion did not have supreme authority so Union Govt wasn't
really obligated to act in accordance with the opinion of judiciary since the
Executive was responsible. This was one of the first instances where the court
ruled against itself.
This point of view was concerned with clarity; the phrase "consultation" was not
at all confusing. It is also noteworthy that the court reached this conclusion
only eight years after Kesavananda Bharati6. The judiciary acted with restraint.
It should be emphasized that the verdict was issued in December 1981, after
Indira Gandhi reclaimed power with an overwhelming majority following two
short-lived and weak regimes.7
Formation of collegium
The "First Judges Case", nevertheless, was overridden by "Second Judges Case",
19938, which held that in the occurrence of a conflict during consultation, the
judiciary's viewpoint was fundamental and the executive can nominate judges only
if that was in conformance with Chief Justice's view. In the "Second Judges
Case", Collegium system was introduced. Eventually, in the "Third Justices
Case"9, the Supreme Court maintained its 1993 judgement and expanded the
Collegium to include Chief Justice of India as well as the 4 senior justices
after the Chief Justice of India. Consequently, the Collegium selection system
National Judicial Appointments Commission case
The National Judicial Appointments Commission was a planned entity that would be
in charge of appointing and transferring judges in the country. According to
NJAC, the commission would take the place of the previous collegium system for
In what was the NJAC case10, the Supreme Court ruled that Article 124A was
unconstitutional and overturned the 99th Amendment of the constitution11. As a
result, it ruled the NJAC Act, 2014 to be unconstitutional. The overall
consequence of this decision was to 'reaffirm' the primacy of the collegium
Prior to the first judge's appointment. The judges were selected by the
president with the "assistance and advice of the council of ministers," with
appropriate regard for the view of the CJI. However, after the case, the Supreme
Court ruled that justices must be selected based on the opinions of the CJI and
senior judges, or the collegium. Which would make the government obligated.
While the cases freed the judiciary from the grips of the administration, they
also posted significant challenges and turned it into a closed institution to
which only a few had accesses.
The NJAC sought to strike a balance in this regard. Many criticized the NJAC for
not being neutral and the Supreme Court overturned the Act because they violated
the fundamental framework of the Constitution. this begs the obvious question:
how can a balance be found, and what should a competent judicial selection
No 'Distinguished Jurist' Appointment as Supreme Court Judge Yet12 - Ashok Kini
"Why in the age of RTI, nobody is entitled to know what decision is taken by
The collegium, which consists of the Chief Justice of India and the Supreme
Court's senior most justices, can appoint judges to India's higher courts. The
collegium has failed to recognize the contribution of legal academics, resulting
in a lack of diversity in the upper courts. Second, full-time law professors are
not permitted to practice as advocates. This is in accordance with the
regulations established by the "Bar Council of India under the Advocates Act",
As a result of this restriction, law professors are denied the opportunity to
apply their knowledge and abilities in court. It should be recognized, however,
that academics are autonomous, self-motivated professionals. Because they are
already immersed in the study of law
Academics are the people that speak out against injustices. A large number of
professors are active in social activity. Law professors preach in their classes
about the need of fighting for justice. They should be given a chance to do so
in court. They may put their knowledge to work outside of the classroom. Because
of these constraints, the distance between the 'law in books' and the 'law in
action' has increased.
There has been widespread criticism of political power bias affecting collegium
choices, which has not only denied India of its greatest chance of converting a
law professor into a Justice, but has also left jewels of the judiciary
unnoticed. Furthermore, this appointment method has been criticized for having
nepotistic inclinations. Several researchers and authors have pointed out that a
system in which the court determines who becomes a member of the judiciary is
particularly prone to favoritism.
As example, the omission of Justice Kureshi13, although qualifying as the senior
most judge, from the most recent list of new Supreme Court judges adds to the
dispute. The hideous character of the collegium and the role of higher
authorities in establishing bias in judicial selection requires us to reconsider
the judicial appointment system. The current system must be reviewed in an open
and democratic manner.
The nomination of Judges should be carried out correctly, and great attention
must be taken in appointing the Judges. Judges ought not be relocated unless
there is a legitimate reason, and transfers must be made only if there is a
solid reason. Judges must not be transferred based on individual or political
motivations. The government and the judiciary must regard the nomination of
justices as a serious matter which must be addressed with extreme caution.
- INDIAN constituent ASSEMBLY: Deliberations on democracy, (2019)
- M. P. Singh, Securing the independence of THE judiciary--the Indian
Experience, 10 Indiana International & Comparative Law Review 245–292
- Bhagwan D. Dua, A study in executive-judicial conflict: The indian case,
23 Asian Survey 463–483 (1983).
- NewIndianXpress, Concerns over judicial appointments The New Indian
Express (2021), https://www.newindianexpress.com/opinions/2021/aug/29/concernsover-judicialappointments-2351215.html
(last visited Sep 8, 2021).
- S.P. Gupta vs. Union of India 1982, AIR 1982 SC 149, 1981 Supp (1) SCC
87, 1982 2 SCR 365
- Kesavananda Bharati v. State of Kerala, 1973 4 SCC 225; AIR 1973 SC 1461
- Indira Gandhi, Encyclopædia Britannica, https://www.britannica.com/biography/Indira-Gandhi
(last visited Sep 8, 2021).
- Supreme Court Advocates-on Record Association vs Union of India,1993 AIR
1994 SC 268
- Special Reference No.1 of 1998 AIR 1999 SC 1
- Supreme Court Advocates-on-record Association & Anr. vs. Union of
India,2015 (2016) 5 SCC 1, (2016) 2 SCC (LS) 253
- Surjeet Singh, 99Th amendment in Constitution of India 99th Amendment in
Constitution of India (2017), https://www.indianconstitution.in/2017/09/99th-amendment-in-constitution-of-india.html
(last visited Sep 8, 2021).