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, Lucknow.
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 with 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 with the CJI, the governor of the concerned
state and the chief justice of the concerned high court. This simply worded prescription
expressed in Articles 124(2) and 217(1) worked well in practice for the first two decades. By
convention, whosoever the CJI recommended as judge was, almost invariably, appointed; whom
the CJI did not recommend was not appointed.
But in 1981, in the S.P. Gupta case, much later known as the first judges case, a bench of
seven judges of the Supreme Court presided over by Justice P.N. Bhagwati held (4:3) that the
recommendations of the CJI for judges to be appointed in the higher judiciary were,
constitutionally, not binding on the government of India. The (Congress) government, then in
office, was delighted. It was now payback time. So when Bhagwati assumed office as CJI, the
Congress government, still in office, declined to appoint judges recommended by him, since it
was he who had judicially declared (in the S.P. Gupta case) that consultation in Article 124 did
not mean concurrence.
It was much later, with the accumulated experience of the deleterious consequences flowing from
the majority judgment in the first judges case, that new faces on the bench decided to take a
fresh look at Article 124(2). In what has now become known as the second judges case
(1993), a bench of nine judges held (by a majority, 7:2) that a collegiate opinion of a collectivity
of judges was to be preferred to the opinion of the CJI. It also said that if the government did not
accept the recommendation of the collegium (then consisting of the three senior-most
judges), it would be presumed that the government had not acted bona fide.
Even after the judgment in the second judges case, recommendations made by the collegium
were not made in the spirit in which the new doctrine had been propounded, since the collegiate
of the three highest constitutional functionaries (the senior-most judges of the court) could not
see eye to eye in the matter of appointment of judges to the higher judiciary. So when (again, by
convention) the then senior-most judge, Justice M.M. Punchhi, became the CJI in January 1998

and recommended, with the concurrence of his two senior-most colleagues, that a particular list
of five named persons be appointed to fill the vacancies in the highest court (all strictly in
accordance with the methodology laid down in the second judges case), the government took
exception to some of the names justifiably, according to disinterested and knowledgeable
persons.
But the CJI was adamant. When the government said that some of the names suggested could be
accepted, but not all, the CJI said: It will be all or none. Apprehending the initiation of
contempt proceedings, the government of the day (the NDA government with the BJP in the
driving seat) thought it expedient to seek a presidential reference under Article 143 of the
Constitution for the advisory opinion of the Supreme Court on certain dicta expressed in the
second judges case.
All that ultimately happened after the presidential reference was that the collegiate was enlarged
(by judicial diktat) from three to five of the senior-most justices, perhaps on the principle that
there was greater safety in larger numbers. Meanwhile, Chief Justice Punchhi demitted office
since he had reached the constitutional age of retirement. His successor, along with the four
senior-most justices in the collegium, recommended names of appointees, which were accepted.
This shows (it is said) that the collegium system worked. The response of lawyers has been,
Yes, but not always in this manner.
The truth is that the system of recommendation for judicial appointments by a collegium of the
five senior-most judges (like that of the three that went before) is not institutionalised: no
mechanism is prescribed (by the collegium itself), no office is set up, no data gathered in
advance, no criteria evolved as to who among the high court judges all aspirants to a place in
the Supreme Court should be recommended. There is no reason given as to why a broad
consensus among all the justices of the Supreme Court is not to be preferred to the views only of
the five senior-most.
The entire system operates ad hoc, based on no principle. And the choice of judges to be
recommended has varied in quality with the collegiums fast-changing composition. The system
has failed, according to me and many others. But in the opinion of the judges, including a
succession of chief justices of India, it has not. More importantly, the BJP government that is
now in office had, as part of the NDA government in 1998, categorically informed the nine-judge
bench hearing the presidential reference that it was not seeking a review of the judgment in the
second judges case the judgment that first initiated the novel idea of a collegium of seniormost judges.
In this situation, what would be the right thing to do? I believe that before embarking on the new
experiment of a broad-based National Judicial Commission, even one loaded with a majority of
sitting judges as members, it is imperative that there should be meaningful dialogue between the
executive and the collectivity of all the judges of the Supreme Court (represented by its chief

justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is
the need of the hour, because we cannot risk another judicial decision. The executive, the judges
and the lawyers must resolve to avoid, at all cost, a fourth judges case.
The writer is a constitutional jurist and senior advocate to the Supreme Court

First, insulate the judge from politics

BY: RAM JETHMALANI
The thesis of committed judiciary has been abandoned, but its practice continues unabated.
That is the real problem, writes RAM JETHMALANI.
A judge is the guardian of the small man and his bundle of rights, which enable him to realise his
fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body,
mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge
must brace himself for a life of tension with both in the intelligent and stout defence of his ward,
who needs constant protection against the insolence of unfeeling officials, the venality of
politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially
a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be
sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and
undemocratic.
This role of the judge makes one think about elected judges. But the system of elected judges has
been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you
will find is that in a certain US state, the Democratic Party found a judge paralysed from the
waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four
successive elections but before the fifth, a Republican Party official said to his superior, Sir, we
have found a solution to our problem. He asked, What is it? The answer: Sir, this time we
have found a judge who is paralysed from the waist upwards. It will not work in India anyway.
Economics may have dominated the world most of the time and probably does dominate in some
sense even now. But today, politics has overtaken economics in its influence. In the past few
decades, all institutions, including the judiciary and of course the Bar, have struggled with the
temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring
ones who consider favours from a ruling party to be stepping stones for upward mobility in the
field. Usually, but not always, judges do often violate their oath of administering justice without
fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an
effective mechanism of insulating judges against politics and involvement in political

machinations of the kind that have disgraced some sections in the past not only in this country,
but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment
of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt
misuse of executive powers. Even a good judge appointed by a corrupt minister will not
command public confidence. The second judges case, the origin of the present collegium system,
was a correct decision, and the current system is vastly superior to the one it supplemented. It
was the one that produced the tellingly sarcastic comment, It has created two kinds of judges
those who know the law and those who know the law minister.
South Africa, in its new constitution, adopted the model of a judicial commission as the method
of selection, which has been operational since 1996. The law minister is formally consulted and
he makes his comments upon the appointees or recommendees of the judiciary. The comments of
the law minister are considered with respect and attention, but the final word lies with the
commission. I am committed to this mechanism as our final solution. I must hasten to explain
why.
I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent
article in The Hindu: The present secretive process followed by the collegium excludes public
scrutiny, violates the citizens right to know and leads to diminishing respect for the judiciary.
Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges
seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law
of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the
common man, not so inhibited, produces an impressive volume of popular corruption folklore.
The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished
lawyer and politician, claimed that judicial appointments could not be made without reference to
the social philosophy of the judges. The judge, being an important decision-maker, makes
decisions that are bound to affect the lives of the people, and his decisions are influenced by his
social philosophy. Therefore, independent India should have judges who are committed not
only to the social philosophy of the Constitution, but also to that of the government. This was
controversial. However, Indira Gandhis government implemented his views during the
Emergency.
Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated.
While judges associated with the ruling establishment are invariably appointed, those having any
form of association with opposition parties are scrupulously avoided. How successive chief
justices, who are supposed to be totally judicial even in the discharge of their administrative
function, habitually enter into convenient compromises escapes comprehension. The inevitable
answer is the creation of a national judicial commission in which the judiciary, government,

opposition, the Bar and academic community have an equal voice. Judges should hold office
only during the pleasure of the commission. It should have the power to appoint, transfer and
dismiss of course, in accordance with procedure established by law, or what is also known as
due process. The Lokpal may well be a useful addition to the list of participants.
The 79th report of the Law Commission suggested ways to plug loopholes in the existing system
of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme
Court unless, for a period of not less than seven years, he has snapped all affiliations with
political parties and unless, during the preceding seven years, he has distinguished himself for his
independence, dispassionate approach and freedom from political prejudice.
The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must
gracefully quit office. It is just not true that only weak and obliging judges are popular with the
Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar
Association can, by its adverse criticism, make the mighty president of the US withdraw his
nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy
appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.
The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister
(June 1999-July 2000)

Change must respect basic structure

Upendra Baxi
The relationship between democracy and secrecy has always been debated, and it has been
highlighted by the system of judicial appointments. The proposed judicial appointments
commission (JAC) seeks to partly answer that question. Under review is the judicial collegium
method of appointments, in use since the 1990s (which consists today in the supremacy of five
senior-most justices of the Supreme Court, including the chief justice of India), as against the
constitutional method in place between the 1950s and the 1990s (where the executive nominated
candidates in consultation with the CJI and such other justices as it deemed fit).
Neither method can be said to have failed or succeeded, because the citizen has no way of
knowing who the candidates are, how they are selected and why. No empirical study of judicial
appointments is possible because the records are not available, and like the electoral nomination
of candidates, the right to information does not exist so far as judicial elevations or transfers of
high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists
tell us about the system are abundant, but such anecdotal evidence is hearsay and not
ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the
power to elevate (and transfer high court) justices through a tortured interpretation of Articles
124 and 217 of the Constitution, by saying that the word consultation shall mean the consent
of the CJI. But a constitutional convention giving primacy to the CJI was already in place
according to the law secretarys affidavit, only seven out of some 348 recommendations were
negatived by the Central government. If the system of executive nomination has worked so well,
why the change?
Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice
Markandey Katjus recent expose suggests that the CJI is vulnerable to alleged manoeuvring by
the prime ministers office. The justices in the judges cases seemed to think so, given that they
accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of
five justices.
To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments
and transfers, and contemplated a slew of measures on judicial standards, accountability, nonimpeachment offences and transparency of the judicial process. The new government is
espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister
to say that he had justices in his pockets; this is no longer the signature tune of modern
governance. Rather, the state now wants a JAC that would avoid the vices of politicians
appointing judges, and of the justices appointing their own.
This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till
2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many
UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of
the Supreme Court members, provided a
process to identify two eminent citizens, and finally culminated in the 120th constitutional
amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment
and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred,
the Law Commissions report and other reports make compulsory, if dull, reading on this vexed
subject.
In a consultation with eminent jurists convened by the Union law minister on July 28, while most
went to the extent of saying that the judicial collegium had failed and agreed that the system of
appointments needed to be changed, all the jurists endorsed the dominance of the CJI and his
senior companions. If the advice of the CJI and his companion justices is to have an edge or
dominance, how is it to be achieved? Should the JAC then adopt a weighted voting procedure,
not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will
happen if the justices do not yield? What if some other eminent members, including the Union
law minister, remain recalcitrant? And how much weight, if any, should be given to the
Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously
argued in these pages (Just governance, IE, June 10) and at a New Delhi consultation that the
best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill,
considering whether abolition of the judicial collegium offends the basic structure and if it does,
how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it
clear that the matter can only be settled in a judicial opinion; since the judges cases were decided
judicially, no question arises of a mere administrative order by the court.
The court may advise the president that the basic structure is not violated or that certain changes
to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue
on system change and collaboration, rather than an avoidable conflict between Parliament and
the Supreme Court.
The basic structure here is the independence of the judiciary and judicial review. It is this power
that ultimately decides the essential features of the Constitution. Appointments and transfers of
justices definitely affect the basic structure, and the court should have a say in it. The executive
may present evidence before the justices on why the judicial architecture needs to be reformed,
and how the judicial collegium has failed the nation. Since almost all the leaders of the Bar
believe that the judicial collegium has failed in drawing the best and brightest to become
justices, they should have little difficulty in persuading the court.
The argument against an advisory opinion is that it would take undue time. But the 2G reference
was relatively expeditiously disposed; the non-collegium justices would be justified in
accelerating the opinion. In any event, the time taken for the reference will be democratically
well-invested. The alternative of an adversarial proceeding, where the court may continue via a
stay order to make appointments and transfers, scarcely advances the cause. Even under
Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine),
Parliament has plenary powers to amend the Constitution. However, enacting the JAC without
consulting the court may invite judicial wrath, and even lead to a constitutional crisis.
The writer is professor of law, University of Warwick, and former vice chancellor of the
Universities of South Gujarat and Delhi

A case for two commissions

T R Andhyarujina
There is now a consensus amongst judges, lawyers and legislators that the present system of
appointment of judges to superior courts by a collegium of Supreme Court judges requires to be
changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our
Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to
be appointed by the president after consultation with the chief justice of the Supreme Court and
other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the
president in consultation with 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 1981, in what is known as the first judges case, the Supreme Court held that the power of
appointment of judges of the superior courts resided solely and exclusively in the president, that
is, the Central government, subject to full and effective consultation with the constitutional
functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the
second judges case, professing to safeguard the independence of the judiciary, reversed the first
verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a
judge of the Supreme Court was with the CJI, who would make his recommendation to the
president after consultation with two of his senior judges. The president would only have the
limited power of expressing his doubts on the recommendation of the CJI. The presidents doubts
would not however prevail if the CJI reiterated his recommendation on the appointment of the
judge. In a later judgment, known as the third judges case, the Supreme Court diluted the
primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his
senior-most colleagues.
The judgments in the second and third judges cases are an extraordinary tour de force in the
name of securing the independence of the judiciary. The court has rewritten the provisions of the
Constitution for the appointment of judges. The executives function in the appointment process
has for all practical purposes been eliminated and reduced to the formal approving of a
recommendation made by the CJI and his collegium. Consultation with the CJI in the
Constitution has been transmuted into an original power to appoint by the CJI and a collegium.
The Constituent Assemblys view at the time of enacting the constitutional provisions, that the
CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction
in the world do judges appoint judges.
Even if the collegiums method for the appointment of judges has no foundation in the
Constitution, it could have been excused had the system worked satisfactorily, but unfortunately,
for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is
secretive. The public is not aware of the selection of a judge until his name is forwarded to the
government by the collegium. Second, there have been instances of judges being selected or not
selected due to favouritism or prejudice of members of the collegium. Third, selection on
competitive merit of the appointees is discarded and judges are generally appointed to the
Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma,
principal author of the second judges judgment, later admitted that the collegium system had
failed.

Should the earlier system of the exective appointing judges after proper consultation be restored?
Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court
were appointed through this system. Eminent judges like Michael Kirby of the Australian High
Court are strongly in favour of restoring the old system, with control over it by Parliament. It
was only during the period of the Emergency that this system was subverted, which led to the
judiciary appropriating the power in the second judges case. Even today, in Australia and
Canada, it is the executive that appoints judges after proper consultation.
To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the
Constitution. Such a change requires careful consideration and evaluation of the system. It is
important to know that, except for the judicial appointment commission of the UK introduced by
the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The
South African constitution provides for a judicial appointment commission, but its working is far
from satisfactory and at times appointments have been influenced by the government. The same
is true of judicial appointment commissions in other states in Africa.
If the JAC is to be introduced in India, its composition should be made part of the Constitution
itself and not left to ordinary legislation by Parliament. There should be proper representation of
members, including of the legal profession, in the JAC. The JAC will be over-stressed and
overworked if it has to make appointments for 31 judges to the Supreme Court and over 800
judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the
commission, would have to work in the commission to the neglect of their primary judicial duties
of hearing and deciding cases. There ought to be two separate judicial commissions, therefore,
one for the Supreme Court and the other for the high courts. The JAC for high courts ought to
be composed of retired judges of the Supreme Court or high courts, in addition to other
members. In the UK, there are separate selecting bodies for high court and for supreme court.
The overriding factor will be the merit of the candidate, but the commission, as in the UK,
should consider diversity, namely, appointment of women judges and judges of various regions
without of course sacrificing merit.
Overall, the creation of a JAC requires careful consideration and extensive consultation with all
sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly
convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be
made. It is to be hoped that such consultations will be continued before a legislation is
introduced. The collegium system has not worked, but we should not have a situation where we
jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial
Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India

Lay down standards of transparency

Prashant Bhushan
The change of mind in Pakistan via-a-vis India is real. But foreign offices of both countries
remain addicted to deadlocks.
How we decide the vexed issue of the method of selection of judges of the Supreme Court and
the high courts would determine the future of our democracy and the rule of law in the country.
We are faced with the twin problem of selecting the best judges and also ensuring that the
judiciary would be insulated from executive interference.
The attempt to undermine the independence of the judiciary originated in 1973 after the
landmark Kesavananda Bharati judgment of the Supreme Court. Indira Gandhi decided that only
those judges who are committed to the ideology of the government should be appointed. At that
time, judges were appointed by the government in consultation with the Chief Justice of India
(CJI) as provided by the Constitution. The government then said that it was not bound by the
advice of the CJI. Successive Congress governments thereafter appointed judges who had
proximity to the government. The saying, that in order to become a judge, it was not important to
know the law, but more important to know the law minister, became the prevailing wisdom. The
subversion of the independence of the judiciary by the appointment of convenient judges became
a major issue, especially with increasing corruption within the executive.
Finally, in 1993, the system prevailing at that time was reversed and the judiciary wrested the
control in the matter of judicial appointments from the executive. The words in consultation
with the chief justice were interpreted to mean, with the concurrence of the chief justice. The
meaning of chief justice was interpreted as a collegium of the CJI plus two senior judges of the
court. A new elaborate procedure was laid out by the court for the appointment of judges, in
which the role of the government was reduced to returning a name recommended by the
collegium for reconsideration. If the collegium reiterated its recommendation, the president
would have no option but to go through with the appointment. High court appointments would
also go through a similar procedure, except that the recommendations there would originate from
the collegium of the high courts.
In 1998, the Supreme Court further tweaked its judgment of 1993 in a Presidential Reference on
this issue. The collegium was widened from three to five judges. Consultation with other judges
in the court, who came from the same high court as the proposed nominee, was also provided.
But the control over the appointments continued to vest with the judiciary.

This system of appointment of judges by the judiciary did lead to the depoliticisation of the
judiciary to a large extent and did substantially improve its independence. But the process of
appointments was still shrouded in secrecy and keeping the control over appointments with
sitting judges, who had little time from their judicial work, coupled with the lack of transparency
in such appointments led to nepotism and arbitrary appointments. No criterion for selection was
laid down, nor was any system devised to evaluate various candidates in the zone of
consideration on any criteria. No system of inviting any applications or nominations was devised
either. Thus the quality of appointments did not substantially improve even in this system. Even
late Justice J.S. Verma, the author of the original judgment, came to say that he did not anticipate
that his judgment would lead to such poor appointments by the judiciary.
Selecting about 100 judges of the higher judiciary every year in a rational and fair manner is an
onerous task requiring a full-time and not an ex-officio body. An ex-officio body of sitting judges
and ministers cannot devote the kind of time required for this job. We therefore need a broadbased, independent constitutional body that would make appointments of judges in a transparent
manner by calling for applications and nominations of candidates and evaluating them on set
criteria. This body can be on the lines of the Judicial Appointments Commission (JAC) of the
United Kingdom, which is also a full-time body, which has adequate time, expertise and
resources to select the best candidates.
The Committee on Judicial Accountability (a voluntary body of senior lawyers and retired
judges) proposed a bill for the constitution of a full-time and independent body called the JAC
for the selection of judges to the high courts and the Supreme Court. It was proposed that such a
body could be constituted from among retired judges or other eminent persons who are selected
in the following manner: The chairman to be selected by the collegium of all judges of the
Supreme Court. A second member by the collegium of all chief justices of the high courts. A
third member by the Union cabinet. A fourth by a collegium of the leaders of opposition of the
two Houses of Parliament, along with the speaker of the Lok Sabha. A fifth by a collegium of the
CEC, the CAG and the CVC. Each of these members of the JAC would have a tenure of five
years and would thus be independent of the government as well as of the sitting judiciary. This
body would be mandated to function transparently and would have to publish the names of the
persons shortlisted for appointment for the information and comments of the people, before the
final selection. Being a full-time body, it would lay down the criteria for selection and would be
mandated to go about its task in a structured and rational manner. The body would be given
adequate staff and resources to do justice to its onerous work.
However, neither the government nor the judiciary was interested in creating an independent
full-time body as exists in the UK to select judicial appointees. A national judicial commission
bill of 2013 was eventually introduced by the UPA government, which sought to create an
appointments commission in which the appointments pie was sought to be divided almost
equally between the judiciary and the government. The proposed commission was supposed to
have the three senior-most judges of the Supreme Court along with the law minister and two

eminent persons nominated by a committee consisting of the prime minister, leader of opposition
in the Lok Sabha and the CJI. Thus, the commission was still conceived as largely an ex-officio
body of people who would have little time to devote to appointments and it did not lay down any
standards of transparency either in the appointments. The bill, which lapsed with the dissolution
of the Lok Sabha, is much worse than the existing system since it suffers from the vices of both
the pre-1993 system and the existing system, and does not offer any improvement.
It is therefore essential that the government moves a constitutional amendment bill to create a
full-time, broad-based body that would make appointments to constitutional courts in a
transparent and rational manner. The minimum level of transparency would require that the
names of shortlisted candidates ought to be made public so that the public can send any
evidence, if any, against any of the shortlisted candidates to the said body, which would then take
that into account. We need a bill along the lines suggested by the Committee on Judicial
Accountability.
The writer is a lawyer and founding member of the Aam Aadmi Party

A needless confrontation
M. Veerappa Moily
Freedom and independence of the judiciary have been taken to mean, (a) that both the institution
of the judiciary and independent judges are separate and free from interference by the other
branches of the government (executive and legislature), political parties, other powerful interests
or individuals; and (b) that the individual judge or magistrate is independent and at liberty to
make a decision without pressure, inducement or promise from any source whatsoever. An
independent judiciary must not only be independent but also appear to be independent.
Article 124 vests the president with the power 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 with such of the judges of the Supreme Court and of the high
courts as the president may deem necessary. The appointment of judges of the high courts is also
made by the president. The president has to consult the CJI, the governor of the state and the
chief justice of the high court.
The issue of the appointment and removal of judges was examined by the National Commission
to Review the Working of the Constitution chaired by M.N. Venkatachaliah. The commission
recommended the constitution of a national judicial commission, which would have the effective
participation of both the executive and the judicial wings of the state as an integrated scheme
for the machinery for appointment of judges

The government introduced the Constitution (98th Amendment) Bill in the Lok Sabha in 2003.
This bill sought to create a national judicial commission (NJC) headed by the CJI with two
judges of the Supreme Court next to the CJI in seniority, the Union minister for law and justice
and one eminent citizen to be nominated by the president in consultation with the prime minister,
as members.
The Second Administrative Reforms Commission is of the view that the appointment of judges
to higher courts should be with the participation of the executive, legislature and the chief
justice, and should be a bipartisan process above day-to-day politics. Therefore, the proposed
NJC should comprise representatives of all three organs of the state the legislature, the
judiciary and the executive. Such a body can devise its own procedures in identifying and
screening candidates for the higher judiciary.
If we consider the international practice for the appointment of judges to supreme courts in
various countries like the UK, US, France or Germany, they are found to be appointed by
political executives, senates or presidents of republics, or by elected bodies. It is only in our
country that, with the system of the collegium, the class of judges appoint themselves.
Ruma Pal, a former Supreme Court judge, has said that the process by which a judge is presently
appointed to the high court or the Supreme Court is one of the best kept secrets in the country.
V.N. Khare points out that prior to 1993, when the primacy vested with the executive, eminent
judges were still appointed to the high courts and the Supreme Court.
Parliament last week passed a constitutional amendment bill to provide for the National Judicial
Appointments Commission (NJAC), which proposes to radically change the process of
appointment of judges by giving both the judiciary and the executive equal say and veto power.
The NJAC is mandated to appoint judges of the Supreme Court and the chief justice and judges
of the high courts. It is also empowered to initiate transfers of high court judges.
The six-member NJAC will comprise the CJI, the two senior-most judges of the Supreme Court,
the Union law and justice minister and two eminent persons. The choice of eminent persons will
be made by a high-powered committee composed of the prime minister, the CJI and the leader of
the opposition or the leader of the largest party in opposition. The two eminent persons will have
a tenure of three years, and one will be a woman, or from a Scheduled Caste, Scheduled Tribe or
minority community.
In an important improvisation on earlier drafts of the NJAC, the bill provides that no name
opposed by two or more of the six-member body can go through. A name recommended for
appointment as judge to the Supreme Court or the high courts can be returned to the NJAC by
the president for reconsideration. The bill also provides for wider consultation with Bar bodies,
senior advocates and eminent persons by the collegium of the high court before recommending a
name for consideration by the NJAC in appointments to the high court. In an important addition,

the bill also requires that the NJAC, before recommending a name for appointment as judge of a
high court, take the views of the concerned state governor and chief minister in writing.
As Upendra Baxi wrote in his contribution earlier (Change must respect basic structure, IE,
August 8): The basic structure here is the independence of the judiciary and judicial review. It is
this power that ultimately decides the essential features of the Constitution. Appointments and
transfers of justices definitely affect the basic structure, and the court should have a say in it. The
executive may present evidence before the justices on why the judicial architecture needs to be
reformed, and how the judicial collegium has failed the nation. Since almost all the leaders of the
Bar believe that the judicial collegium has failed in drawing the best and brightest to become
justices, they should have little difficulty in persuading the court Even under Kesavananda
Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary
powers to amend the Constitution. However, enacting the JAC [judicial appointments
commission] without consulting the court may invite judicial wrath, and even lead to a
constitutional crisis. The Kesavananda Bharti verdict firmly established the judiciary as the
ultimate arbiter of which provision/ law/ act violates the Constitution and which will pass muster.
There is a consensus that the NJAC be considered an instrument to replace the existing
collegium system, obviously without compromising the independence of the judiciary or giving
the executive superseding authority. But the way in which the NDA government has handled the
constitutional amendment bill has set up a series of confrontations between the political
executive and the judiciary. This could have been avoided by taking the judiciary into
confidence. Still, it is not too late to have a proper reconciliation between the judiciary and the
executive.
The writer was Union law minister from May 2009 to 2011

Not just about appointments

Salman Khurshid
The judicial appointments bill passed by Parliament will still need to pass muster in the Supreme
Court of India. There is good reason to believe that the political domain, though by word
committed to the independence of the judiciary, either has a distorted idea of what independence
is or indeed subscribes to different inarticulate versions of the independent but committed
conception of the judiciary. Understandably, the idea is not as dishonest or simple as its
opponents make it out to be. Is there a place in our polity for ideology or should we be
celebrating the end of ideology with the maturing of our democracy? The fact is that the UPA
government had a distinct idea of India much of which the new government may passionately
disagree with but might find it difficult, at least at this moment, to publicly jettison to create
space for its own idea of India or Hindustan. Must this matter to the judges that decide our fate in

many profound ways? If the answer is yes then would that not be relevant to what kind of
judges we have? Our understanding of this conundrum will provide guidance to how we ought to
select judges rather than the common sight these days on television channels and in newspaper
columns of a priori opinions about what is the right way to choose a judge.
So to return to the question of ideology: it is important to make a distinction between popular
ideology (or what common citizens might assume is ideology) of the present as against
institutional ideology of historical validity. This should not be confused with a case for being
captives of the past in form or substance. Institutional ideology is an analytical product of data
about political and philosophical positions taken by society from generation to generation but
under trained scrutiny, cleansed of distortion and adulteration. This exercise can be done by any
trained mind but in our system, it is best done by judges. The principle of stare decisis and
following precedents is a part of that technique. It does not matter that in a particular case, a
judge gets it wrong because the system of appeals reduces the chances of an aberration leaving a
lasting distortion.
The UPA and the NDA may well have dramatically different perceptions of the national good
and institutional morality of our society but deep down in our national psyche there are beliefs
that cannot be affected by it. The greater the consonance between a political outfits stated
positions and the deep institutional tenets, the more likely is the political programme to succeed
in a sustained manner. That is the logic of democracy. Of course, institutional ideology too can
change but by its very nature it can evolve only over a long period. We should not of course
confuse this with status quo because within the institutional morality might well be all the
instruments for change and response to challenges of the new age.
Independence of the judiciary needs many factors, least of all an understanding of the judges
role in society by the judges themselves. There is enormous amount of material available in the
experiences of great judges of our country and the common law world. There are several
fascinating models of the role of the judge, from strict constructionists to creative additional
legislators, conformists and zealous social reformers, relief givers and hanging judges,
philosophers and wordsmiths, leaders and followers. Interestingly judges from different
jurisdictions with vastly varying social conditions still manage to borrow from each other to
fortify their reasoning and analysis. In India, as indeed in many other democracies, we are lucky
that institutional beliefs were distilled into our Constitution at a remarkable moment in history,
when the masses expressed their confidence in the leaders to give to the nation a social compact
of universal acceptance. The amendments that have been made have fleshed out the pristine
principles as it were, but the basic structure doctrine has, in a sense, preserved the essential spirit
of the Independence movement and the document that reflected its spirit in 1950.
This background needs to be kept in mind as we attempt to change the system for appointments
of judges that has been in place for several decades. Many arguments are being heard about
transparency, accountability, exclusion, inclusion, self-perpetuation, that it does not have a

parallel in the world, etc. But if we believe in the Indian genius why must we feel self-conscious
that no one does it this way? Some of the best institutions of the world share many attributes of
the present system of judicial appointments in India, including the shortcomings. This is not an
appeal to leave things as they are because improvements are always possible and desirable. But
we should not be doing something that focuses unduly on one aspect of the judiciary and leave
the rest to continue in the spirit of business as usual. I have some idea about how restless the
judiciary is about its inability to deliver justice that is of high quality, expeditious, affordable and
most of all, easily understood by the common citizen. Judges are not oblivious to the flaws that
exist in the present system and in their own way, attempt to address them. Although we see some
signs of the political class being able to forge consensus on the urgency of the intended reform,
there are some serious questions that have surfaced from the judiciary despite its discreet
demeanour in reacting to such public discussions. Comments from some members of the
judiciary (albeit no longer on the Bench) should not be cited as a compelling reason for haste. An
institutional conversation between the judiciary and the executive (on behalf of the legislature) is
the need of the hour. This is too important a matter to be left to be decided in a contest between
different wings of government, sending out a signal to the people that years after Independence
we remain unclear about the separation of powers.
The writer was Union law minister from May 2011 to October 2012

Seven qualities of highly effective judges

Written by Mohammed Salim
In the wake of recent controversies, the issue of judges appointments has resurfaced. Until 1993,
the executive had a role in the appointment of judges in India. In fact, since the inception of the
system of judicial appointments, it has always remained a prerogative of the sovereign ruler.
In ancient India, kings used to appoint judges (adhikitas) after consulting their social mentors
(rishis). The British, after introducing the present judicial system in India, chose judges on the
basis of advice from the chief justice of the respective high courts, who were invariably British
by birth. During this period, not a single Indian was ever made a chief justice. Thus, British
rulers ensured the judiciary remained loyal to the crown.
The present collegium system was introduced following the 1993 second judges case and the
advisory opinion rendered by a nine-judge bench (decided seven to two) of the Supreme Court in
1998. The Supreme Court effectively amended the Constitution through judicial process, as it
read concurrence into the term consultation as laid out in Article 124. The presidential
reference to the Supreme Court was meant to review the second judges case, but the court
refused to do so expressly and went on instead to strengthen judicial concurrence by increasing
the number from three judges to five.

It failed to bring about much-needed reform by substituting the collegium with a more
responsible, transparent and accountable system. The advisory opinion simply shuffled persons/
authorities to fructify individual ambitions and choices. There is now a great opportunity for the
legislature to take a comprehensive view and introduce a system that is not only transparent but
also ensures quality.
The National Judicial Appointments Commission (JAC) Bill has been passed by the Lok Sabha.
Many experts, including Law Commission Chairman A.P. Shah and Press Council of India head
Markandey Katju, 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 want a majority say for judges. At the
same time, the unusual strength of the present executive has given rise to apprehensions
regarding its intervention in judges appointments.
Other than Japan, perhaps only in India do judges appoint judges. The present system of
appointment suffers from many infirmities. There is neither any scope for scrutiny nor
transparency. This method of appointments also does not address the diversity in Indian society.
Moreover, it leads to the appointment of judges who hold similar views and have the same broad
orientation. It is also prone to encourage nepotism in the judicial system. The need of the hour is
to strike a balance between the independence of the judiciary and ensuring its impartiality and
accountability.
Given the experience of the Emergency which saw the executives assertion of its role in the
appointment of judges and undue interference thereafter (including the latest one involving
this government in Gopal Subramaniums non-appointment), it is imperative to ensure that the
executive does not end up with a dominant role. A mere shift of primacy cannot be the way to
ensure a transparent and qualitatively sound system of appointments. No objective parameter has
been set in the JAC bill to ensure the selection of an able, competent, honest and educated person
as a judge. On the contrary, the scope of subjective satisfaction of persons who will recommend
judicial appointments is enhanced in the bill. A broad parameter in respect of procedure for the
shortlisting of candidates has to be evolved. In this context, the ancient jurist Katyayanas
observation indicating seven qualities to be considered for the appointment of judges is worth
noting. Those qualities are akrurha (no ill will), madhura (politeness), snigdha (dispassionate),
kshamajuto (forgiveness), bichakshana (educated, having an analytical mind), utsahabana
(spirited and hard-working), and nirlobha (without greed). Unfortunately, the present bill has not
indicated any such qualities. Besides ensuring fairness and transparency in the appointment of
judges to the benches of the higher judiciary, the timely filling up of vacancies in the judiciary is
also an important challenge.
We cant afford to see the appointments of judges in isolation. While making the process more
transparent, broad-based and impartial, we must ensure that justice is made available and
affordable to the vast population. There is no need for a separate body for judicial standards and

accountability. The proposal for a national judicial commission (NJC), with representatives from
three organs of the state the executive, legislature and judiciary must be acted upon.
It should be vested with powers to conduct inquiries into the misbehaviour of judges and to
impose minor punishment. To make it more democratic, transparent and participatory, even
representatives from the Bar Association of India and the general public can be inducted. This
would facilitate wider consultations on assessing the suitability and integrity of potential
appointees.
The NJC should comprise the Chief Justice of India as ex-officio chairperson with one other
judge of the Supreme Court, nominated by the collegium of all judges of the Supreme Court, the
chief justice of one of the high courts, nominated by the collegium of chief justices of all high
courts, the Union minister for law and justice as ex-officio member along with two eminent
persons to be nominated by a collegium consisting of the prime minister and leader of the main
opposition party in the Lok Sabha and, finally, a nominee of the Bar Association of India. It
should be ensured that at least one member is a woman and one eminent person is from the SC/
ST/ OBC/ minority communities, preferably by rotation.
The writer is a CPM MP in the Lok Sabha

In defence of the collegium

K T Thomas
The appointment of judges at the level of the high courts and Supreme Court continues to be
problematic, in spite of cosmetic changes brought in through judicial activism in two stages.
What remains is known as the collegium system. It was formulated by a nine-judge bench of the
Supreme Court after hearing long arguments addressed by top-ranking counsel. Initially, the
collegium system was generally welcomed, despite opposition from politicians on the ground
that the judges had arrogated to themselves the power of choosing judges. But in due course, it
received criticism from different quarters, including members of the Bar. It is true that the
collegium system has remained in force for more than 15 years. As the years have passed,
burgeoning criticism that the present system did not remedy the drawbacks of the erstwhile
mechanism have eventually become more strident.
At least in a few instances, unsuitable persons have found their way to seats of judges in the high
courts. It is, of course, a matter of relief that the number of such persons has not swelled to
alarming proportions. At the same time, it would not be true to say that no unsuitable person has
reached the Supreme Court bench through the collegium system. The lesson to learn is that
however much improvement is sought to be achieved through changes to the appointments

process, the efficacy of its working depends on the vision and dedication of the persons
empowered to manage the system.
The chairman of the Law Commission of India has suggested that a seven-member judicial
appointments commission (JAC), with a preponderance of members from the judiciary, be
instituted. But of what use are the proposed changes if some members of the JAC function in the
same manner as before? What is the guarantee that only persons of impeccable and proven
integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up
the JAC? Having been a member of the collegium of the Supreme Court, I know how outsiders
seek (and get) access so as to canvass for the decision-making process. I doubt that the situation
would change if the proposed composition of the JAC were to be implemented. I am also not
prepared to say that the selection of eminent persons would not become diluted in due course,
particularly because of the vagueness in standardising who these eminent persons can be. I am
sceptical of the outcome of the JAC in the long run, given that the scope for manipulation and
favouritism cannot be fully eliminated even within it.
A former chief justice of the Kerala High Court had evolved an experiment while adhering to the
collegium mechanism. When there were three vacancies of Bar candidates, he invited
recommendations from all his companion judges in the high court, requesting them to send at
least five names each. He got 40 names altogether, and shortlisted them to 10. He studied their
performance and presented his views before the other members of the collegium of the high
court. When there was dissent, he expanded the three-member collegium and obtained their
views also. He made the final recommendation to the Supreme Court. In that process, the Kerala
High Court gained three very fine judges. I thought that the same could be followed by the chief
justices of other high courts and, in fact, I wrote an article in support of it. But on deeper thought,
I sensed that if the practice continued and remained in place for much longer, the scope for
canvassing with other judges for interested persons would have increased greatly and the
experiment would have been rendered ineffective.
The criticism that the executive has now no role in the appointment of judges is, to a great extent,
misplaced. In my view, there should not be any dispute on the proposition that judges should
have the first-stage opportunity to point out who the best candidates for judgeship are. But their
judgements on that score cannot be treated as infallible. When names of candidates are sent by
the collegium to the executive, it is definitely possible for the executive to conduct a thorough
inquiry through such departmental agencies as they could trust. Then the executive can send back
the names to the collegium for further consideration and a final decision. One change I wish to
propose is to permit the executive to propose names to the collegium at the initial stage.
Whenever recommendations are to be made for more than two vacancies (it may go up to 15 and
sometimes even to 20), there could be a temptation for members of the collegium to compromise
in order to accommodate candidates on barter considerations. Whenever bulk recommendations
have occurred in the past, some not-so-suitable (if not totally unsuitable) candidates have

succeeded in getting access to the list. This defect can be effectively eliminated by restricting
recommendations strictly to one or two vacancies at a time, and definitely no more. In my view,
the existing system can continue with the modifications indicated above.
The writer is a former judge of the Supreme Court

Safeguarding judicial autonomy

SUHRITH PARTHASARATHY
Both Houses of Parliament have accorded their legal imprimatur to the 99th Constitution
Amendment Bill. Once ratified by at least half of the countrys State legislatures, and once the
Presidents assent is secured, the amendment will establish a National Judicial Appointments
Commission. The NJAC, the amendment provides, shall comprise the Chief Justice of India as
its ex officio chairperson, the two senior-most judges of the Supreme Court following the Chief
Justice, the Law Minister, and two eminent persons to be nominated jointly by the Prime
Minister, the Chief Justice of India and the Leader of the Opposition. The NJAC will be
responsible for making binding recommendations to the President for appointing judges to the
Supreme Court and to various High Courts.
Criticism of commission
In the immediate wake of Parliaments approval of the amendment, however, criticism of the
proposed commission, which will replace the collegium in making judicial appointments, has
been widespread. Some, such as the Supreme Court Advocates-on-Record Association, have
already moved the Supreme Court challenging the law for violating the Constitutions basic
structure. The focus here has been not only on the composition of the NJAC, but also its
workings as provided by the National Judicial Appointments Commission Bill, 2014, which was
passed simultaneously with the Constitution Amendment Bill. Broadly, the detractors argue that
the proposed laws vest excessive power in the executive, including a potential ability to veto
nominations, thereby impinging on the independence of the judiciary. But these arguments
overlook a number of key considerations. The new laws have their deficiencies, but they are a
product of sustained discussion across all political lines and are examples of a non-partisan
process of law making. Whats more, they have allayed fears that the executive would exercise
unbridled control over judicial appointments. And most crucially, the laws would obliterate the
collegium system which is not only opaque and extra-constitutional, but also, as evidence of the
recent past has shown, an abject failure.

In the Constitution (as originally enacted), the power to appoint judges to High Courts and the
Supreme Court rests with the executive. Article 124 of the Constitution provides that the

President shall appoint judges to the Supreme Court after consultation with such of the judges of
the Supreme Court and of the High Courts in the States as the President may deem necessary for
the purpose. And, where the appointment is of a judge other than the Chief Justice of India, the
President is mandatorily required to consult the Chief Justice. Likewise, Article 217 provides that
the President shall appoint judges to the High Courts after consultation with the Chief Justice of
India, the Governor of the State, and in case of appointment of a judge other than the Chief
Justice, the Chief Justice of the High Court concerned.
Independent of political influence
When drafting the Constitution, the Constituent Assembly took great efforts to ensure that the
judiciary was independent of any coercive political influence. To that end, it introduced a number
of significant provisions in the Constitution. For example, the judges of the Supreme Court and
the High Courts serve not at the pleasure of the President, but until they attain a fixed age; whats
more, salaries and allowances of the judges are charged from the Consolidated Fund of the State
(which is incapable of being a subject of a vote by a Legislative Assembly); discussion in the
State legislatures on the conduct of any judge is expressly barred; powers are conferred on the
High Court to punish for contempt of itself; and, significantly, judges of the higher judiciary can
be removed only through a complicated process of impeachment by Parliament. But, as valued as
judicial independence was to the Assembly, it did not see the vesting of the ultimate power of
appointing judges on the executive as an infraction of that principle; on the contrary, it viewed
such power as a vital cog in the checks and balances required to ensure a proper separation of
powers. A broad process of consultation with several important authorities was mandated to
further validate the system, but the ultimate authority was placed on the President. Such a
system, the Assembly felt, would instil in the courts, which were given wide powers of judicial
review including the power to strike down laws made by Parliament, democratic legitimacy, and
would thereby serve as an effective check on judicial power.
The new laws have their deficiencies, but they are a product of sustained discussion across all
political lines, and are examples of a non-partisan process of law making
When, in Union of India v. Sankal Chand Himatlal Sheth [(1977) SCC (4) 193], the Supreme
Court found that the word consultation did not mean concurrence, it was guided by these
objectives. The Court held that the opinion of the Chief Justice in making transfers was not
binding on the executive, although a departure from his or her opinion could be made in
exceptional circumstances. While this decision was partially affirmed by a majority of seven
judges, insofar as the appointment process is concerned in the First Judges Case (S.P. Gupta v.
Union of India, 1981 Supp (1) SCC 87), the Supreme Court dramatically altered the position in
the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India,
(1993) (4) SCC 441). In the Second Judges Case, it ruled that the word consultation in Articles
124 and 217 denoted concurrence, and that primacy in making judicial appointments is vested
with the Chief Justice. This decision was later affirmed with certain modifications in the Third

Judges Case (In re Presidential Reference, (1998) 7 SCC 739), and it was held that the ultimate
authority to make appointments to the Supreme Court lay with a collegium of judges comprising
the Chief Justice and his or her four senior-most colleagues.
Through the Second and Third Judges cases, the Supreme Court virtually appropriated unto itself
the power to appoint judges. As the nature of appointments made in the last two decades has
showed, the decisions exemplified a concern expressed by James Madison in the American
context: The accumulation of all powers, legislative, executive and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-appointed, or elective, he said,
may justly be pronounced the very definition of tyranny. Had the Supreme Courts decisions in
these cases been substituted by a Constitution amendment by Parliament to the same effect, it is
trite to say that such a law would have been liable to be invalidated for violating the
Constitutions basic structure.
Replacing a failed system
Now, through the 99th Constitution Amendment Bill and the NJAC Bill, Parliament has merely
sought to realign the process of appointments in consonance with a general principle of
separation of powers. It is therefore surprising to note that the Bills have met with such vigorous
dissent from important quarters. Quite contrary to the fears propagated by its critics, the
proposed laws will replace a failed system with a process that maintains, at the least, an element
of fidelity to the Constitutions ideals. The composition of the NJAC may not be perfect, but it is,
in fact, tilted in favour of the judiciary. If any two of the three judges on the panel believe that a
candidate is unsuitable for appointment, they can together veto the elevation of such a nominee.
The Union government, on the other hand, merely has a single vote in the NJAC, and cannot, by
itself, place a proscription on any appointment. It will require the additional backing of either
one of the judges or one of the eminent persons for the government to thwart any nomination.
Any fears that the composition of the NJAC will vest an unrestrained power in the executive
therefore appear unfounded. Even in the U.K., where the Judicial Appointments Commission is
completely divorced from executive involvement, the Lord Chancellor retains the power to reject
a nomination made by such a commission. The NJAC might not be as broadly constructed as the
U.K. Commission, but its constitutional sanction will infuse in the process of judicial
appointments greater transparency and an enhanced democratic involvement, as is the case in the
U.K. No doubt Parliament will have to introduce through legislation, as part of the NJAC,
suitable infrastructure including the presence of full-time staff, to aid its members to arrive at
considered decisions. The failure to include such a support structure is one of the collegiums
many shortcomings. But Article 124C, introduced by the new ConstitutionAmendment, allows
Parliament that authority. Needless to say, any legislation introduced by Parliament in this
regard, if in violation of any provision of the Constitution or the Constitutions basic structure,
can be struck down by the courts as unconstitutional. But the argument that the 99th Constitution

Amendment Bill in itself and by itself is ultra vires the Constitution for infracting the documents
basic structure is, at best, tenuous.
Given that the originally enacted Constitution placed overriding power on the executive to make
judicial appointments, it is unfathomable how the proposed system, which accords the judiciary
not merely a consultative role but a determinative one, can be found to infringe the independence
of the judiciary. The pre-existing provisions, which the drafters of Indias Constitution inserted to
ensure judicial autonomy, continue to remain in force. It is only the process of appointments,
which was arrogated by the judiciary unto itself, which has been calibrated by the proposed
Constitution Amendment. This realignment is both in keeping with the original intent of the
Constitutions framers and also with the larger principle of separation of powers that pervades
the document.
(Suhrith Parthasarathy is an Advocate in the Madras High Court.)

A fatally flawed commission

ARVIND P. DATAR
Both Houses of Parliament almost unanimously passed, and with inexplicable haste, two laws
that seek to abolish the collegium system and replace it with a National Judicial Appointments
Commission (NJAC). There was very little debate and it was clear that Members of Parliament
were determined to cut the Supreme Court to size. One would have expected that such
momentous changes would have been referred to a select committee to consider suggestions and
objections of eminent lawyers and various Bar Associations. The Constitution (99th Amendment)
Bill, 2014 and the National Judicial Appointment Commission Act, 2014 are both seriously
flawed and contrary to elementary principles of constitutional law. Both laws will also be wholly
unworkable in practice. The net result is that a flawed but workable collegium system will now
be replaced by an even more flawed and wholly unworkable Commission system.
Unworkable in practice
The 99th amendment to the Constitution inserts three new Articles 124A, 124B, and 124C
and also amends several other Articles under the ostensible objective of providing a meaningful
role to the judiciary, executive and eminent persons to present their viewpoints and make the
participants accountable while also introducing transparency in the selection. But the
amendments actually contain nothing to ensure either accountability or transparency.

The fatal flaw is the failure to give supremacy to the views of the judges in the selection process.
Under Article 124A, the NJAC has six members of whom three are judges the Chief Justice of

India (CJI) and two seniormost judges. The remaining three are the Union Law Minister and two
eminent persons who are to be appointed by the Prime Minister, the Leader of the Opposition
and the CJI. In the Madras Bar Association case, a Constitution Bench of the Supreme Court held
that a selection committee to select members for the National Company Law Tribunal (NCLT)
must have an equal number of judges and civil servants (Secretaries) with a casting vote to the
nominee of the CJI who is the chairperson of that committee. If the views of the judges have to
prevail in selecting members to a Tribunal, it is impermissible that they will not prevail while
appointing Supreme Court and High Court judges. The National Judicial Commission that was
suggested by the Venkatachaliah Committee was a five-member body consisting of three
seniormost Supreme Court judges, the Union Minister and one eminent person.
The constitutional amendments will also be unworkable in practice. What happens if there is a
deadlock? Is it necessary that all the six members must be present at every meeting? Is there any
quorum? What happens if one member absents himself? What happens if the veto power is
misused to appoint someone undesirable? How are the regulations to be framed?
Article 124C is most sinister and enables Parliament to empower the commission to make
regulations for selecting judges and for other matters. Thus, constitutional provisions and
safeguards can easily be thwarted by regulations framed by the commission.
Eminent persons
About 70 Acts prescribe the appointment of eminent persons and 65 of them require
specialised knowledge. For example, the eminent person under the Biodiversity Act has to be
eminent in the field of conservation and sustainable use of biological diversity. Shockingly, there
is no requirement that the eminent persons on the commission should have any knowledge of
law.

This small Act, with just 14 sections, effectively creates a full-time commission with its own
staff and regulations. The commission will now totally control the appointment of Supreme
Court and High Court judges, Chief Justices of High Courts, the transfer of judges and even the
continuance of retired High Court judges under Article 224A.
The NJAC Act is clearly unconstitutional. While Article 124(3) of the Constitution prescribes the
minimum requirement of a person to be eligible to be appointed as a Supreme Court judge,
Section 5(2) of the NJAC Act, 2014 can now prescribe any other criteria of suitability as may be
prescribed by the regulations. Similarly, additional criteria not mentioned in the Constitution
can be added for High Court judges. We now have an absurd situation where the eligibility of
Supreme Court and High Court judges will be determined not just by the Constitution but by
regulations of the Commission.

For the appointment of High Court judges, the NJAC Act, 2014 also requires the views of the
Governor and Chief Minister to be given in writing and as prescribed by the regulations. But
the Act is silent as to what happens if the Governor or Chief Minister or both object. It is now
mandatory that eminent advocates are consulted while appointing High Court judges. Who are
the eminent advocates? Well, that will also be prescribed by the regulations.
The collegium system
The 20-year-old collegium system has been severely criticised even by Supreme Court judges
who were members of the collegium. The main allegation is that there is a total lack of
transparency. Members of the Supreme Court collegium have also been accused of exploiting
their power to appoint their close relatives or particular lawyers as High Court judges. Similarly,
personal animosity has resulted in the delay or denial of appointments to the Supreme Court.
Undoubtedly, the collegium system has its failings. But we cannot forget the manipulation and
humiliation of the judiciary at the hands of political leaders that eventually led to the collegium
system. The controversial Justice Markandey Katju refused to give in to political pressure and it
was the collegium system and a public interest litigation that led to the appointment of 17
competent judges to the Madras High Court.
If the main objection to the collegium system is lack of transparency, the better and simpler
solution is to ensure more transparency and greater objectivity so that the basis of selection is
made known to the public. One does not destroy the building if the plumbing is faulty. Indeed, it
will make far more sense to have the NJAC consist of the three senior-most Supreme Court
judges, two retired Supreme Court judges and two retired Chief Justices of High Courts.
In the end, the NJAC will destroy the independence of the judiciary. The involvement of the Law
Minister, the leader of the Opposition, the Governors and Chief Ministers in the appointment of
High Court judges will inevitably lead to serious political manipulation. In 1973, Indira Gandhi
struck a major blow to judicial independence by the shameful supersession of judges. Forty years
later, Parliament has thoughtlessly created a Commission that the nation will deeply regret. For
the judiciary at least, acche din may soon be over.
(Arvind P. Datar is a senior advocate of the Madras High Court.)

Has collegium system of judges' appointment outlived its utility?

By Ashish Tripathi
How should the judges be selected to higher judiciary?
This question has been bothering not just the top echelons of judiciary in India but the executive
too. Though the collegium system which appoints judges has been in place for quite some time
now, there have been murmurs of dissatisfaction over the practice in different quarters.
The collegium system which is followed in the appointment of judges to the supreme court
and the high courts has recently been challenged in the supreme court. The petitioner, Rajasthanbased Suraz India Trust wants the court to declare the system ultra vires and unconstitutional
because the constitution does not mention it anywhere and it has been brought into existence
through the judgements of the supreme court. The bench, which heard the matter, referred it to
the Chief Justice of India for appropriate direction as the petition raised complicated legal
issues. On its part, the government has said that the matter required reconsideration.
The trust questioned two significant verdicts of the apex court in Advocate on Record
Association vs Union of India and Others (1993) and Special Reference No 1 of 1998 that have
established the primacy and supremacy of the collegium system in the appointment of judges to
the higher courts. The collegium which 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 Delhi high courts chief justice A P Shah, who could not make it to the apex court, quotes
Justice Ruma Pal, formerly supreme court judge to say that the process by which a judge is
presently appointed to the high court or the supreme court is one of the best kept secrets in the
country. The constitution dealing with the appointment of judges of the supreme court (Article
124) and the high court (Article 217) says that the President would appoint such judges in
consultation with other judges.
Initially, the power to appoint judges vested in the executive. That, now, rests with the chief
justice and the senior judges of the court. The constitutional scheme now stands amended with
the concurrence instead of consultation of collegium being made mandatory for the President
to make any appointment of judges in the apex court and the high courts. The votaries of the
present system regard it as a manifestation of the constitutional principles of separation of power.
Besides, they believe that it also reinforces the independence of judiciary.
Currently, the removal proceedings are on against Calcutta high court judge Soumitra Sen and
Sikkim high courts chief justice P D Dinakaran. Had there not been serious charges like land
grabbing, then Karnataka high courts chief justice Dinakaran would have been elevated to the
supreme court. Notably, CBI has recently filed a chargesheet against Justice Nirmal Yadav before
her retirement from Uttrakhand high court for alleged corruption.

Probably, that is why former Delhi high court judge R S Sodhi feels the collegium system has not
been able to deliver so far. He dubs it as a total failure, when it comes to inducting judges of
quality. Keeping the system of appointment of judges within the four walls of collegium has
given rise to a lot of criticism like uncle-and-son-syndrome, justice Sodhi opines.
Representation to executive
However, former Chief Justice of India V N Khare differs with justice Sodhi. He does not call it
bad as such. But, he does not mind making a way for representation to the executive in it. Since
there has been talk of making it more participatory, I feel one or two persons as nominees of the
president can be included in the collegium or selection committee, he says. Justice Khare, under
whose tenure Justice S H Kapadia was elevated as the Chief Justice of India, feels the president
can nominate a renowned jurist or a former judge or a Chief Justice of India in the collegium. He
points out that prior to 1993, when the primacy vested with the executive, very eminent judges
were still appointed to the high courts and the supreme court.
Justice Shah, whose elevation to the supreme court was said to have been stalled, says the
present system of judicial appointments in the constitutional courts exemplifies the
misalignment between the core values of judicial independence and accountability. Our
current appointments system is out of step with democratic culture primarily because it lacks
transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in
largely unknown circumstances reflects an increasing democratic deficit, Justice Shah points
out. He calls for taking lessons from other countries like the UK and South Africa where a
transparent process of appointment of judges is followed, while maintaining judicial
independence. International consensus seems to favour appointments to the higher judiciary
through an independent commission, he says.
A supreme court bench, which heard the plea challenging the collegium system, saw some
questions being framed such as whether the clear language of Article 124 (2) can be altered by
judicial verdicts and whether there was any convention that the president is bound by the advice
of the Chief Justice of India and four senior most judges of the supreme court while appointing a
supreme court judge.
Justice Sodhi says There has to be some kind of minimum standards written test, exams or
interview. We can no longer bank upon present system as the judges selected by it have failed to
meet the aspiration of the office.

Questioning the National Judicial Appointments Commission Act, 2014

By Smaran Shetty

With the passage of the 121st Constitutional Amendment Bill and the attendant National Judicial
Appointments Commission Bill, the collegium system of appointments, now 21 years in the
making, is sought to be replaced by the newly created National Judicial Appointments
Commission (NJAC). Unsurprisingly, concerns over this new method of judicial appointments
have been articulated both in terms of a perceived incursion intojudicial independence as well as
the logistical uncertainties for the NJAC, which is tasked with appointments to all courts of the
higher judiciary. This stance is tempered with a candid admission as to the limitations of the
collegium system, which as is argued, although imperfect, still remains a relatively better mode
of appointments in comparison to the proposed NJAC.
All of these fears are valid, from a stand point of preserving a constitutional balance intended to
secure an optimal degree of judicial independence as well as questions of efficacious
constitutional design. I wish to however move away from these macro level concerns, voiced in
terms of how the NJAC may eventually vote, the undefined criteria of appointment of eminent
persons, the dangers of a veto and possible executive capture of the NJAC. In this post, I wish
to discuss certain alarming provisions within NJAC Act, that should alert us to the possible ways
in which pervasive legislative control may be exercised over the newly contemplated
appointment procedure.
The NJAC Act, 2014 is passed in pursuance of the newly inserted Article 124A and 124B which
establishes and gives to the National Judicial Appointments Commission constitutional status,
while at the same time describing its composition, functions and powers. Under the NJAC Act,
the procedure to be followed for appointments to the High Court as well as the Supreme Court is
clearly spelt out. Most importantly, in furtherance of the newly inserted Article 124C, the NJAC
Act, vests both the Central Government as well as the Commission itself, with rule making
power to further define the manner in which appointments are to be made.
The rule making power of the Central Government is rooted in Section 11, which provides for
the power to fix the remuneration and other service conditions for the members of the NJAC.
Section 11(2)(c), in the nature of a residuary clause, considerably expands this rule making
power by stating any other matter which is to be, or may be, prescribed, in respect of which
provision is to be made by the rules. On the other hand, the rule making power of the NJAC
itself is rooted in Section 12, and empowers the Commission to prescribe regulations for the
criteria to be considered for judicial appointments, the criteria for consulting members of the bar
for such appointments and other important substantive and procedural questions.
An immediate concern, given the wide and overlapping rule making power of the Commission
and the Central Government, is a potential for conflicting rules, and an uncertainty as to which
set of regulations would prevail, if such a conflict were ever to arise. This fear is not entirely
unfounded, since the Law Ministry is actively involved in the functioning of the Commission.
The Law Minister himself is a member of the NJAC, and the Ministry is tasked with promptly
forwarding details as to prospective judicial vacancies, to ensure timely appointments.

Considering this intimate interface between the Law Ministry and the NJAC, it would be natural
to foresee a situation in which the Law Ministry seeks to regulate the functioning of the NJAC,
which may potentially over lap, and worse still, conflict the rules of the Commission.
More troubling however is Section 13 of the NJAC Act, which subjects the rules, made in
furtherance of this act (both by the Central Government as well as the NJAC) to alteration by
both houses of parliament. Sub-ordinate legislation drafted by the executive is not subject to a
uniform standard of review by Parliament, and may vary depending on the terms of the statute
vesting such power. Generally however, statutes require that drafted rules be laid before both
houses, and changes may be made by the parliament within 30 days of such laying (resembling
Section 13 of the NJAC Act). Rarely, is the operationalization of such rules subject to prior
parliamentary approval. Sub-ordinate legislation drafted by judicial bodies under the Indian
constitution are qualitatively distinct, and are not subject to similar oversight. For instance, under
Articles 145 and 229, the Supreme Court and High Court respectively, are granted rule-making
powers for the discharge of their constitutional duties as organs of the higher judiciary.
Although the scope this rule making power varies, the purpose behind the vesting of such power
in constitutional courts, is to empower them to draft such regulations as may be necessary for the
proper discharge of their duties. Towards that end, as well as to further secure judicial
independence, the rules drafted by the Supreme Court under Article 145 are not made subject to
the Union Parliament, but instead subject to the confirmation by the President. Similarly, rules
made by the respective High Courts are not subject to modification or approval by the State
Legislatures, but are subject to approval from the Governor of such a state.
Considering the proposed NJAC is a constitutional body, and that it performs a vital judicial
function, without however being a judicial organ, the rules made by the Commission, should not
be subject to parliamentary modification. The ability of parliament to alter, in any manner,
howsoever insignificant, the regulations of the commission, seriously impedes the ability of the
NJAC to determine for itself, the relevant criteria to be considered for the manner and method
for judicial appointments. This is not to suggest that the regulations of the NJAC would be
subject to no safeguards whatsoever. Under Article 145 and 229, rules drafted by judicial organs
continue to be subject to judicial review, and may be struck down if repugnant to any
constitutional provision. The rules of the NJAC, should therefore be treated of such a like nature,
and should be made subject only to judicial review.
Section 13 of the NJAC Act, should then alert us to the indirect, yet significant manner in which
the government may continue to retain unjustified supervisory powers over the Commission. If
the rationale for the creation of the NJAC is that judicial appointments must be reclaimed from
the exclusive domain the judiciary, then surely, it must also be insulated from governmental
interference in the finer points of its functioning and parameters of deliberation. Importantly
then, is the need to debate the constitutionality of the NJAC, not merely in broad claims of
judicial independence, but in the more minute details of how such functionaries are to operate

and whether the intended constitutional space for such a Commission to operate in, is
encumbered by unwarranted government presence.
Interestingly, Arun Jaitley (the then leader of opposition) delivered a strident and informed
speech in support of the new appointment procedure. Among the many valid points he made, he
called for a shift away from impressionistic judicial appointments towards a more objective
criteria for assessing prospective judges. He illustratively stated that the proposed commission
while deciding the merits of a candidate should look into his/her performance at the bar,
academic and scholarly work, record of reported judgments (if any) and probity as a judicial
officer. These are no doubt valid points of consideration, and will surely form the basis of further
regulation of the NJAC. If these criteria are meant to substitute judicial opaqueness in
appointments, which they undoubtedly should, then these criteria must equally not be subject to
suspect alteration by the Union Parliament.