CONSTITUTIONAL LAW

PSDA-2

RESEARCH PAPER

Judicial Appointments in India: A Shifting

Landscape of Independence and Reform

SUBMITTED BY: KHWAISH BANSAL

CLASS/SECTION: 2-M
ENROLLMENT NO.: 14117703524
SUBMITTED TO: MS. KANCHAN LAVANIA
Judicial Appointments in India: A Shifting
Landscape of Independence and Reform

ABSTRACT
This research paper delves into the intricate and evolving landscape of judicial
appointments in India, critically analysing the transition from executive primacy to the
present collegium system. Tracing the historical trajectory from the pre-independence
era, where the Crown held significant discretion, to the adoption of the Constitution
with Articles 124 and 217 vesting appointment power in the President in consultation
with the Chief Justice of India, this paper examines the inherent complexities and
persistent debates surrounding the selection of judges to the Supreme Court and High
Courts.
The study highlights the genesis of the collegium system as a consequence of a trust
deficit between the judiciary and the executive, particularly after the Emergency
period. It analyses the landmark Judges' Cases that progressively established the
judiciary's primacy in appointments. The paper critically assesses the shortcomings of
the collegium, including concerns about transparency and accountability.
Furthermore, the research scrutinizes the attempt to reform the appointment process
through the National Judicial Appointments Commission (NJAC), established by the
99th Constitutional Amendment Act, 2014. It examines the Supreme Court's rationale
for declaring the NJAC unconstitutional in 2015, emphasizing the protection of
judicial independence as a basic structure of the Constitution. The paper also
considers the dissenting opinions and the ongoing debate regarding the balance
between judicial independence and democratic legislative processes.
Drawing upon the historical evolution and the analysis of the collegium and the
NJAC, the paper explores various suggestions for ameliorating the judicial
appointment process. These include enhancing transparency, broadening eligibility
criteria, establishing a dedicated secretariat, and incorporating lessons from other
jurisdictions like the UK. The paper concludes by reflecting on the critical design
principles for a legitimate and effective judicial appointment system in a democratic
framework, emphasizing the need for a balance between judicial independence,
executive involvement, transparency, and public accountability.
Introduction:
The appointment of judges to the Supreme Court and High Courts of India is a critical
aspect of the nation's constitutional framework, directly impacting the independence
and effectiveness of the judiciary. The process, initially outlined in the Constitution,
has undergone significant evolution, primarily shaped by landmark Supreme Court
rulings, leading to the establishment of the unique 'Collegium system'. This system,
where judges primarily appoint other judges, has been a subject of intense debate,
balancing the need for judicial independence with concerns about transparency and
accountability. More recently, the attempt to reform the appointment process through
the National Judicial Appointments Commission (NJAC) and its subsequent striking
down by the Supreme Court has further highlighted the complex dynamics at play.
This paper will delve into the constitutional provisions governing judicial
appointments, trace the evolution of the appointment process through key judicial
pronouncements, analyze the rise and fall of the NJAC, examine the criticisms and
potential reforms of the existing system, and briefly consider comparative
perspectives to provide a comprehensive overview of judicial appointments in India.

Constitutional Provisions for Judicial Appointments:

The Constitution of India lays down specific articles addressing the appointment of
judges to the higher judiciary. Article 124(2) deals with the appointment of Supreme
Court judges, stating that "every Judge of the Supreme Court shall be appointed by the
President" after "consultation" with such judges of the Supreme Court and High
Courts as the President may deem necessary. Notably, in the case of appointing a
judge other than the Chief Justice of India (CJI), the CJI shall always be consulted.
Similarly, Article 217 governs the appointment of High Court judges, stipulating that
the President shall make the appointment in consultation with the CJI, the Governor of
the State, and, in the case of appointing a judge other than the Chief Justice of the
High Court, the Chief Justice of that High Court. Over time, a convention of
appointing the seniormost Supreme Court judge as the CJI has been strictly followed,
particularly after the supersession controversies of the 1970s. Initially, the Union Law
Minister would typically seek the recommendation of the outgoing CJI regarding their
successor, a communication then forwarded to the Prime Minister who would advise
the President on the appointment.
The Evolving Role of the Judiciary: From Consultation to
Concurrence:
The interpretation of the term "consultation" in Articles 124(2) and 217 has been
central to the evolution of the judicial appointment process in India. The Supreme
Court's rulings in the "Judges Cases" series significantly altered the balance of power
between the executive and the judiciary in this matter.
• First Judges Case (S.P. Gupta v. Union of India, 1981): The Supreme Court
held that "consultation" with the CJI did not mean "concurrence" but merely an
exchange of views. The court ruled that the executive could refuse the CJI's
recommendation for "cogent reasons," effectively granting primacy to the
executive in judicial appointments. This judgment faced criticism for
subverting the intent of the Constitution makers.
• Second Judges Case (Supreme Court Advocates-on-Record Association v.
Union of India, 1993): This landmark ruling reversed the decision of the First
Judges Case. The Supreme Court declared that "consultation" with the CJI now
meant "concurrence," making the CJI's advice binding on the President in
judicial appointments. The court further mandated that the CJI would consult
two of his senior-most colleagues to form a "collegium," whose
recommendation would be binding on the government. The collegium was also
empowered to veto the government's choices even if sent back for
reconsideration. The primary rationale behind this shift was to ensure the
independence of the judiciary by giving it primacy in its own appointments.
• Third Judges Case (In re Special Reference No.1 of 1998): Following a
Presidential Reference, the Supreme Court reaffirmed the Collegium system
and further elaborated its composition. The court opined that the CJI's opinion
should reflect the view of the judiciary, necessitating a plurality in its
formation. It was decided that the CJI should consult four senior-most puisne
judges instead of two for appointments to the Supreme Court. This case also
clarified the phrase "legitimate expectation" concerning the seniority of High
Court judges for elevation to the Supreme Court. The court reiterated that while
seniority is a factor, the selection should prioritize the "best" and "suitable"
candidates.
Thus, through these judicial pronouncements, the power of judicial appointments in
India transitioned from executive primacy to a system where the judiciary, through the
Collegium, holds the decisive role. This evolution was largely a response to concerns
about potential executive interference in the independence of the judiciary,
particularly in the aftermath of politically motivated supersessions during the
Emergency.

The National Judicial Appointments Commission (NJAC): An

Attempt at Reform:
In 2014, the Parliament of India passed the Constitution (99th Amendment) Act,
2014, introducing Articles 124A, 124B, and 124C into the Constitution, and the
National Judicial Appointments Commission (NJAC) Act, 2014. This legislation
aimed to establish a new commission responsible for the appointment and transfer of
judges to the Supreme Court and High Courts, seeking to make the process more
democratic and transparent.
The NJAC was to be composed of:
• The Chief Justice of India (Chairperson)
• Two senior-most Supreme Court judges
• The Union Law Minister
• Two eminent persons from civil society, nominated by a committee comprising
the Prime Minister, the CJI, and the Leader of Opposition in the Lok Sabha.
The rationale behind the NJAC was to include a broader range of stakeholders in the
appointment process, moving away from the perceived opacity of the Collegium
system where decisions were made behind closed doors by a select group of senior
judges. It was argued that the NJAC could potentially speed up judicial nominations.
However, this attempt at reform was short-lived. In 2015, the Supreme Court, in
Supreme Court Advocates on Record Association v. Union of India (Fourth
Judges Case), struck down both the 99th Amendment Act and the NJAC Act as
unconstitutional.
The Supreme Court held that the NJAC undermined the independence of the judiciary,
a fundamental aspect of the Constitution's basic structure, by allowing the executive
branch a significant say in judicial appointments. The court argued that the primacy of
the judiciary, particularly the CJI, in appointing judges was essential to maintain this
independence and prevent potential executive influence. The inclusion of the Law
Minister and the provision for two eminent persons nominated by a committee with
executive representation were seen as jeopardizing the impartiality and objectivity of
the appointment process. While some legal professionals, including former judges,
argued that the NJAC offered a better system, the Supreme Court ultimately upheld
the centrality of judicial input and control over appointments.
Criticisms of the Collegium System and the Need for Reform:
Despite the Supreme Court's defence of the Collegium system as a bulwark against
executive interference, the system itself has faced considerable criticism. Key
concerns include:
• Opacity and Lack of Transparency: The Collegium's deliberations and the
reasons behind its recommendations are largely kept confidential, leading to
accusations of a secretive and opaque process. This lack of transparency can
breed suspicion and undermine public trust in the judiciary.
• Potential for Nepotism and Favouritism: The closed-door nature of the
Collegium has raised concerns about the possibility of nepotism and
favouritism influencing appointments, with allegations that relatives of sitting
or former judges might receive undue consideration.
• Overburdening of Judges: The judges involved in the Collegium bear the
responsibility of both their judicial duties and the administrative function of
recommending and transferring judges, potentially leading to an overload of
work.
• Lack of Clearly Defined Eligibility Criteria: Critics argue that the criteria for
selecting judges under the Collegium system are not well-defined or publicly
accessible.
• Social Homogeneity: Concerns have been raised about the lack of adequate
representation from marginalized communities, women, and minorities in the
higher judiciary appointed through the Collegium system.
Acknowledging the shortcomings of the Collegium system, the Supreme Court, while
striking down the NJAC, invited suggestions for its improvement. Areas for potential
reform identified included transparency in the appointment process, clearer eligibility
criteria, the establishment of a permanent secretariat to assist the Collegium, and
mechanisms for addressing complaints.

Potential Reforms and Comparative Perspectives:

Drawing inspiration from other jurisdictions, particularly the United Kingdom, has
been suggested as a way to improve the Collegium system. The UK's Judicial
Appointments Commission (JAC), an independent body with a diverse membership
including laypersons, judicial members, and professional members, oversees the
selection of judges for most judicial posts. While the final say in appointments rests
with the executive, the JAC's transparent processes, widely advertised vacancies,
clearly defined merit criteria, and "good character" policy offer potential lessons for
India. The JAC also actively works to promote diversity in the judiciary without
compromising merit, through initiatives like candidate seminars targeting under-
represented groups and a Diversity Forum.
The judicial appointment processes in South Africa, involving the Judicial Service
Commission (JSC) with a broad membership, and France, where the President
safeguards judicial independence but does not directly select judges, also highlight
different models for balancing judicial independence and other considerations. These
comparative examples underscore that there is no single "right" way to appoint judges
and that the ideal system should be cognisant of a country's constitutional history and
political climate.

The Ongoing Debate: Judicial Independence vs. Democratic Will:

The debate surrounding judicial appointments in India fundamentally revolves around
the delicate balance between maintaining the independence of the judiciary and
upholding the principles of democratic governance and accountability. The Supreme
Court's insistence on judicial primacy in appointments stems from a concern that
executive involvement could lead to a "committed judiciary" susceptible to political
influence, as witnessed during the Emergency. On the other hand, proponents of
reform, like those who supported the NJAC, argue for greater executive and
legislative involvement to enhance transparency and reflect the democratic will.
Justice Chelameswar's dissenting opinion in the Fourth Judges Case raised critical
questions about the unchecked power of the judiciary in the appointment process and
the potential for an "alternate constitutional morality" that might undermine the theory
of checks and balances. The debate also touches upon the definition of judicial
independence itself, with some arguing for a more holistic view that encompasses not
just independence from executive pressure but also freedom from biases and
prejudices, and the need for a more representative judiciary.

Conclusion:
Judicial appointments in India have traversed a complex path, evolving from a system
with executive primacy to one dominated by the judiciary through the Collegium.
While the Supreme Court has staunchly defended the Collegium as essential for
safeguarding judicial independence, the system's lack of transparency and other
shortcomings have fuelled calls for reform. The NJAC represented a significant
attempt to reshape the appointment process but was ultimately struck down by the
judiciary. Moving forward, the challenge lies in finding a balanced approach that
addresses the legitimate concerns about the opacity and potential for bias within the
Collegium, while ensuring the continued independence of the judiciary from undue
executive or political influence. Incorporating elements of transparency, clearer
criteria, and potentially a more inclusive selection mechanism, drawing lessons from
successful models in other democracies, may be crucial in fostering greater public
trust in the judicial appointment process and ensuring an efficient and diverse
judiciary that upholds the rule of law in India. The ongoing dialogue and willingness
of all stakeholders to engage in constructive reforms are essential to navigate this
critical aspect of Indian democracy.