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Assistant Professor




ROLL NO: 2041














I hereby declare that the work reported in the BBA. LL.B (Hons.) Project
submitted at Chanakya National Law University is an authentic record of my
work carried out under the supervision of Dr Pratyush Kaushik sir . I have not
submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.



ROLL NO. 2041



I would like to thank my faculty Dr. Pratyush Kaushik Sir whose guidance helped
me a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen
hands that helped me out at every stage of my project.



COURSE: BBA. LL.B. (Hons.)

ROLL NO: 2041



“Judges have, of course, the power, though not the right, to ignore the mandate
of a statute, and render judgment in despite of it. They have the power, though
not the right, to travel beyond the walls of the intertices, the bounds set to
judicial innovation by precedent and custom. None the less, by the abuse of
power, they violate the law”1
Benjamin N.Cardozo

The framers of India’s written Constitution wisely built into it checks and
balances in order bring about a harmonious balance in the powers and
responsibilities of the three branches — the Executive, the Legislature and the
Judiciary — of the Government. They knew that in a democratic set up, the
absence of such a balance, and the distortion and even perversity resulting
therefrom, would render effective governance an impossibility. The people
particularly look up to the judiciary to maintain and preserve the equilibrium by
its interpretation of various laws and decisions on the legality and
constitutionality of the exercise of their functions by various authorities, in
cases coming before it. Though under the Indian Constitution the polity is dual,
the Indian judiciary unlike United States of America which is dual (consisting
of federal and state courts) is integrated which can interpret and adjudicate upon
both the Central and State laws. The structure of the judiciary in the country is
pyramidical in nature. At the apex, is the Supreme Court. Most of the States
have a High Court of their own. Some States have a common High Court. The
appointment of Judges of the Supreme Court and their removal are governed by

Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135

Article 124 of the Constitution of India. Articles 125 to 129 provide for certain
incidental matters. The appointment and removal of the Judges of the High
Courts are governed by Article 217. Articles 218 to 221 and 223 to 224A
provide for certain matters incidental thereto.
The issue of appointment and removal of judges in India has been in
controversy since long time and has been a matter of debate amongst the
legislature, executive and judiciary in the recent past. The present position as to
the process of appointment of judges is the consequence of the judicial
interpretation laid down in Judges cases I, II and III - S. P. Gupta vs. UOI2,
Supreme Court Advocates-on-Record Association vs. UOI3 and Special
Reference No.14 which was a departure from the established existing system of
process appointment of judges which prevailed till the year 1981.Till then the
process of appointment of judges were practically made by the executive in
consultation with the judiciary and it played a dominant role, but doubts were
made as to the primacy of the opinion of the executive since then as to the
process of appointment of judges which led to judicial interpretations out of
which none of the interpretations were in consonance with the express
constitutional provisions, thereby keeping the process of appointment of Judges
vague and devoid of transparency.

AIR 1982 SC 149
(1993) 4 SCC 441; AIR (1994) SC 268
Special Reference No.1 of 1998,RE (1998) 7 SCC 739


1. This project work makes the analysis of the process of appointment of judges .

2. The project would also critically examine the Judges cases I, II and III and
the possibility for fair and efficient judicial process in the administration of
justice reconsideration of those cases which are the law of land as to the process
of appointment of judges


The research work will be guided by the following proposition/hypothesis

which are based on a close examination of constitutional provisions relating
to appointment of judges, their history, interpretation and application, and
the problems faced during their operation:-

1. The Constitution makers did not want the appointment of Judges to be made
exclusively by the executive.

2. Doubts were expressed from the very beginning whether the formula for the
appointment of Judges adopted in the Constitution will serve the purpose of
establishing and maintaining an ‘independent and competent judiciary’ which
undoubtedly was one of the foremost objectives of the Constitution makers.


The research problem addressed in this project work is that whether the
provisions of the Indian Constitution as to the process of appointment of judges
are clear and unambiguous or it needs to be supplemented by the judicial
interpretation or it needs a constitutional amendment.
Secondly, the project would also analyse the feasibility of other alternative
methods of appointment of judges in India which ensures judicial independence
and public confidence in judiciary.


Researcher in this work has been done having relied mainly on ‘Doctrinal
Method’ of research. The methodology adopted for the present seminar paper is
doctrinal, analytical and descriptive. The researcher mainly depended on the
primary sources like Statutes and Research Committee Report and secondary
sources like books, articles, journals, case laws and websites. Opinions of
research scholars, professors, experts in respective fields and opinions of
advocates who have dealt with this subject are used as real contribution to this
work. Internet has provided with a major contribution of most relevant and
latest information on the web which has helped the researcher to explore the
subject through various dimensions. Opinions of experts published on the web
also contributed to a great extent for conducting research in the subject.

Opinion of the Constituent Assembly of India

During the discussions in the Constituent Assembly on the appointment of

judges of the Supreme Court, three main proposals had come up for
consideration. One was that the President should make appointments with the
concurrence of the CJI; another was that appointments should be subject to
confirmation by 2/3rd vote by Parliament and the third was that they should be
in consultation with the Council of States (Rajya Sabha) Dr Ambedkar in his
reply to the discussions had firmly ruled out any involvement of the legislature
in judicial appointments on the ground that it would be very cumbersome and
would lead to political pressures.

On the question of appointments with the concurrence of the CJI, Dr Ambedkar

had said "to allow the CJI practically a veto upon appointment of judges is
really to transfer the authority to the Chief Justice, which we are not prepared
to vest in the President or the government of the day." As regards appointment
by the President, Dr Ambedkar had explained that it would be after consultation
with persons who are ex-hypothesi well qualified to give proper advice in such
matters. The decision finally taken [Article 124(2)] was for appointment by the
President "after consultation with such of the judges of the Supreme Court and
of the high courts in the state as the President deems necessary for the purpose."
This procedure had worked fairly satisfactorily till 1993 when the Supreme
Court interpreted the words "after consultation" to mean "with the concurrence"
of the Court and the government of the day chose not to seek a review of this
decision by a larger bench. After this the role of the executive at the Central and
state levels became marginal and the decision on the appointment of judges
today rests de facto with the judges themselves.

Past proposals for reforms in the process of appointment of
judges in India

Introduction: For a proper appreciation of the research problem dealt with

herein, it is relevant to notice the several suggestions put forward and attempts
at reform tried in last several years on the issue of appointment of judges in
India. They are briefly discussed, as follows:

Recommendations of Sapru Committee:

In the year 1945, the Sapru Committee (constituted to look into this aspect in
view of the impending independence of the country) recommended that
“Justices of the Supreme Court and the High Courts should be appointed by the
head of State in consultation with the Chief Justice of Supreme Court, and, in
the case of High Court Judges, in consultation additionally with the High Court
Chief Justice and the head of the unit concerned.”

Recommendations of the High Powered Committee appointed by the

Constituent Assembly:
The Constituent Assembly appointed a high-powered ad hoc committee
consisting of outstanding jurists of the country for recommending the best
method of selecting Judges for the Supreme Court. The committee submitted a
unanimous report opining that it would not be desirable to leave the power of
appointing Judges of the Supreme Court with the President alone. It
recommended two alternative methods in that behalf, namely, (i) the President
should, in consultation with the Chief Justice of the Supreme Court (so far as
appointment of puisne Judge is concerned), nominate a person whom he
considers fit to be appointed as Judge of the Supreme Court and the nomination
should be confirmed by a majority of at least seven out of a panel of eleven
(composed of some of the Chief Justices of the High Courts, some members of
both the Houses of Central legislature and some of the law officers of the
Union); (ii) the said panel of eleven should recommend three names out of
which the President, in consultation with the Chief Justice, may select a Judge
for appointment.

The same procedure should be followed for the appointment of Chief Justice of
the Supreme Court except of course that in his case there should be no
consultation with the Chief Justice.5

Majority view in S.P. Gupta’s case:

In S.P. Gupta’s case6Justice Bhagwati (who was in the majority) did not accept
the concept of the primacy of the Chief Justice of India. He opined that
proposal for appointment can emanate either from Chief Justice of India or from
any of the other three constitutional functionaries (in the case of appointment to
High Court) and that it was open to the Central Government to override the
opinion of Chief Justice of India or the other two constitutional functionaries.
He said that opinion of all the three functionaries to be consulted (Article 217)
stands on equal footing. He added, quite significantly, that if the opinion of
Chief Justice of India and Chief Justice of the High Court is unanimous, the
Government should ordinarily accept it. In the course of his opinion, the
learned Judge also referred to the desirability of a collegium to make
recommendation to the President in regard to appointment of Supreme Court
and High Court Judges. He thought that such a collegium should be broad-
based and should make the recommendation in consultation with wider
interests. He referred to the fact that in countries like Australia and New
Zealand the idea of a Judicial Commission has been gaining ground.

121st Report of Law Commission of India for Constitution of a National

Judicial Service Commission:
The Law Commission again went into this matter at great length in the year
1987. Its recommendations are contained in the One Hundred Twenty-first
Report on a New Forum for Judicial Appointments submitted in July, 1987.
After noticing the several recommendations made earlier and the developing
trends in other countries, the Law Commission recommended the constitution of
a National Judicial Service Commission. It opined “a broad based National
Judicial Service Commission representing various interests with pre-eminent
position in favour of the judiciary is the demand of the times.

B.Shiva Rao: The Framing of India’s Constitution. Vol.2 at p. 590.
AIR 1982 SC 149

Constitutional Provisions and process of appointment of
judges in India

Appointment of Judges to the Supreme Court

Article 124(2): Clause (2) of Article 124 inter alia says that:
“every Judge of the Supreme Court shall be appointed by the President by
warrant under his hand and seal after consultation with such of the Judges of
the Supreme Court and of the High Courts in the States as the President may
deem necessary for the purpose and shall hold office until he attains the age of
sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of India shall always be consulted.”

Under our constitutional scheme, the President is the constitutional head. In

exercise of the powers vested in him by the Constitution, he acts upon the aid
and advice of Union Council of Ministers. So far as the executive power of the
Union is concerned, it is exercised by the Union Council of Ministers in the
name of the President. Clause (2) of Article 124 speaks of ‘consultation’,
whether it be with the Chief Justice of India, Judges of the Supreme Court or
with the Judges of the High Court. The expression is not “concurrence”. The
Constituent Assembly debates show that when it was suggested by some of the
members that the expression should be ‘concurrence’ and not ‘consultation’, it
was not agreed to. Similarly, the suggestion to provide for approval of
Parliament or its upper House - probably inspired by the U.S. Constitution –
was also not agreed to by Dr. Ambedkar7

Appointment of Judges to High Courts

The procedure for appointment of Judges of the High Courts is slightly different
from the one concerning the appointment of Judges of the Supreme Court.
Clause (1) of Article 217 says that “every judge of a High Court shall be
appointed by the President by warrant under his hand and seal after consultation
with the Chief Justice of India, the Governor of the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the
Constituent Assembly debates Vol.8 p.258

High Court and shall hold office, in the case of an additional or acting judge, as
provided in Article 224.
And in any other case, until he attains the age of sixty-two years”. A reading of
this clause shows that while the appointment is made by the President, it has to
be made after consultation with three authorities, namely, the Chief Justice of
India, the Governor of the State and the Chief Justice of the High Court. (Of
course, in the matter of appointment of Chief Justice, the consultation with the
Chief Justice is not required). Just as the President is the constitutional head, so
are the Governors. However, according to the practice, which had developed
over the last several decades and which was in vogue till the aforementioned
1981 decision of the Supreme Court (S.P.Gupta), the Chief Justice of the High
Court used to make the recommendation which was considered by the Governor
of the State (Council of Ministers headed by the Chief Minister) who offered his
comments for or against the recommendation. The matter then went to the
Central Government. At that stage, the opinion of the Chief Justice was sought
and based upon such advice; the appointment was either made or declined, as
the case may be.

Judicial interpretations on the process of appointment of

judges in India: The Turning Point

The beginning and end of judicial reform is the appointment of the right kind of
judges, be it in the Supreme Court, the High Court or the subordinate judiciary.
The appointment of judges is the prime and foremost link in the chain of
judicial reform. As Justice Bhagwati would say, a right appointment “would go
a long way towards securing the right kind of judges who would invest the
judicial process with significance and meaning, for the deprived and exploited
sections of humanity.
The procedure as laid in the constitutional text, underwent a change after the
three pronouncements of the Supreme Court, which need to be considered for a
fuller and more incisive understanding of the present scenario and its effect on
the selection and appointment of judges.

In SP Gupta’s case (1st judges case)

The decision of the majority of the seven judges, affirmed the power of the
executive to decide these issues and dismissed the petitions. The question of
initial appointment of judges was nowhere in issue, but the majority judgment,
holding that the expression ‘consultation’ used in Art 124 (2) and 217 of the
Constitution did not mean ‘concurrence’, declared that the Executive could
appoint a judge, even if the Chief Justice had different views in the matter.
Justice Bhagwati, delivering the majority judgment, also held that ‘consultation’
with the Chief Justice would mean that there should be a ‘collegium’to advise
the Chief Justice. It was, however, not spelt out as to what should be the
composition of the collegium, at this stage. It was also held that the solitary
view of the Chief Justice would not constitute ‘consultation’ within the meaning
of Articles 217 and 224 (2). Thus, the expression ‘colleguim’ came to be used
for the first time in paragraph 29 of the judgment and it was a virtual insertion
into the Constitution.

In the year 1991, doubts were expressed about soundness of the S.P. Gupta
judgment in Subhash Sharma vs. Union of India8, by a Bench presided over by
Justice Ranganath Misra, CJ in regard to the interpretation of the word
‘consultation’ occurring in Articles 217 and 224 (2) of the Constitution and the
matter was referred to a larger Bench on two points: “The view that the four
learned judges shared in SP Gupta’s case, in our opinion does not recognise the
special and pivotal position of the Chief Justice of India. The correctness of the
opinion of the majority in S.P. Gupta’s case9, relating to the status and
importance of the Chief Justice of India and the view that the judge strength is
not justiciable, should be reconsidered by a larger Bench”.
Consequently, a Bench of nine judges was constituted and judgment was
pronounced on 6-10-1993, in what we shall call the 2nd judges case. The
judgment runs into 306 pages and travels far beyond the order of reference.

AIR 1991 SC 631

( 2nd Judges Case )

The 2nd judge case declared that “the opinion given by the Chief Justice in the
consultation process has to be formed taking into account the views of the two
senior most judges of the Supreme Court. The Chief Justice of India is also
expected to ascertain the views of the senior most judge of the Supreme Court,
whose opinion is likely to be significant in adjudging the suitability of the
candidate by reason of the fact that he has come from the same High Court or
otherwise. Article 124 (2) is an indicator that ascertainment of the views of
some other judges of the Supreme Court is requisite. The object underlying 124
(2) is achieved in this manner as the Chief Justice of India consults them for the
formation of his opinion”.

“In matters relating to appointments in the High Courts, the Chief Justice of
India is expected to take into account the views of his colleagues in the Supreme
Court, which are likely to be conversant with the affairs of the concerned High
Court. The Chief Justice may also ascertain one or more senior judges of that
High Court, whose opinion according to the Chief Justice of India is likely to be
significant in the formation of his opinion.The opinion of the Chief Justice of
High Court must be formed after ascertaining the views of at least the two
senior most judges of the High Court”.

This procedure continued till the President of India, Rashtrapati K.R.

Narayanan had doubts and required clarification and light from the Supreme
Court in regard to the appointment procedure, and that is how the 3rd Judges
case came to be made under Article 143 of the Constitution.

3rd Judges case ( Special Reference No. 1 of 1998)

A Bench of 9 judges was again constituted, headed by Justice S.P.

Bharucha. Normally, an advisory opinion under Article 143 does not have to be
binding, but the Attorney General made a statement before the Court that
government would abide by the opinion of the Court.
The 9 judge Bench consisting of S.P. Bharucha, M.K. Muhkerjee, S.B.
Majumdar, Sujata V. Manohar, G.T. Nanavati, S Saghin Ahmad, K
Venkataswami, B.N. Kinful and G.B. Patnaik- JJ answered the reference

The Chief Justice of India must make a recommendation to appoint a judge of

the Supreme Court and to transfer a Chief Justice or puisne judge of a High
Court in consultation with the four senior most puisne judges of the Supreme
Court. In so far as an appointment to the High Court is concerned, the
recommendation must be made in consultation with the two senior most -puisne
judges of the Supreme Court.

The court further held that “the requirement of consultation by the Chief Justice
of India with his colleagues, who are likely to be conversant with the affairs of
the High Court concerned, does not refer only to those judges who have that
High Court as a parent High Court. It does not exclude judges who have
occupied the office of a judge or Chief Justice of that High Court on transfer”

The court also clarified that “the views of the other judges consulted should be
in writing and should be conveyed to the Government of India by the Chief
Justice of India along with his views...”

Conclusion and Suggestions

From the above discussions it can be concluded that in the three judges cases, I,
II & III – S.P.Gupta Vs UOI reported inAIR1982 Supreme Court149, Supreme
Court Advocates on Record Association Vs UOI reported in 1993(4) SCC 441
and Special Reference 1 of 1998 reported in 1998(7) SCC 739, the Supreme
Court has virtually re-written Articles 124(2) and Articles 217 which pertain to
appointment of Supreme Court Judges respectively

At the end it is stated that the point of conflict as to the process of appointment
of Judges is the question of primacy of the opinion between the executive and
judiciary during the process of consultation. It is well known that the constituent
makers excluded the word “concurrence” and instead used “consultation”. Their
aim was clearly to maintain the balance between the two wings and it was
intended that both the wings need to play a co-operative role in the selection and
appointment of judges. The present controversy as to the process of
appointment of judges in India is the outcome of wrong interpretations made in
Judges Case-I, II and III.

The interpretations as to Article 124 and 217 went beyond what the constitution
has actually provided, it infact amounted to re-writing of those provisions. The
pretext for such an interpretation given by the judiciary is that any interpretation
ensures or supplement to the basic feature of judicial independence is justified.
But in my opinion Independence of judiciary must be ensured within the four
corners of the constitution and cannot go beyond the constitution.

Further, the concept of ‘independence of judiciary’ must not be applicable to the

matters of the appointment of judges, it is applicable only when judges are
exercising there judicial function, i.e. after their appointments. It is pertinent to
mention herein that the concept of ‘independence of judiciary’ is borrowed from
the U.S Constitution, but during the process of appointment of judges in U.S it
is seen that judiciary is completely excluded from the process of appointment
and the concept of independence of judiciary has never been associated with the
process of appointment of judges.

The Second and Third Judges’ cases are a naked usurpation of the legislative
function under the thin guise of interpretation. Such an interpretation endangers
public confidence in the political impartiality of the judiciary which is essential
to the continuance of the rule of law.

The delicate balance of ‘judicial independence’ and ‘judicial accountability’ as

formulated by the constituent makers under Article 124 and 217 of the Indian
Constitution has been disturbed by the judicial interpretation and subject to
judicial review.

It is highly unfortunate that, the Supreme Court instead of bringing more

transparency and clarity in the process of appointment of judges by being within
the constitutional framework has surpassed the written text of the constitution.
The Constituent assembly clearly rejected the term ‘concurrence’ and instead
used ‘consultation’ thereby giving primacy neither to the executive nor the
judiciary and intended for consensual decision amongst the executive and the
judiciary for the appointment of judges. The judges hopelessly misconceived
the very nature of judicial function.

It is also unfortunate that such a violation is still continuing and is been

facilitated by a fractured polity, a divided bar, and weak legal academia.
Concluding, a National Judicial Commission should be set up, by constitutional
amendment, to wipe out these rulings. The Court’s basic approach must be
corrected. The warning ‘be you ever so high, the law is above you’ applies to
judges as well as to politicians in power.

As Aristotle said, for a judge to seek to be wiser than the law is to the very thing
which is, by wise laws, forbidden.


The researcher has consulted following sources to complete the Project:






 B.Shiva Rao, “The Framing of the Indian Constitution”, edited by

 Dr. Ranbir Singh & Dr. A Laxshminath, “Constitutional Law”