Nirma University
Institute of Law

V Semester B.A.L.L.B. (Hons.)Course

Article Writing Submission
In Constitutional Law - II on the topic

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Appointment of Judges in Higher Judiciary: A Step Towards Landmark Or Marked Land

As a part of Project Work
For the academic year 2013- 2014

Prepared & Submitted by: Submitted To :
Ashish Somani Asst. Professor 12BAL051 Ms. Alunkrita Tripathi
‘A’ section

Appointment of Judges in Higher Judiciary: A Step Towards Landmark Or Marked Land

ABSTRACT
In India, the judiciary is regarded as the most efficient organ of the government from the legislation, executive and the judiciary which stands at par in their powers deriving from the constitution of India. As said by Shri D.D. Basu, a renowned jurist in India, there should be a check and balance system between the organs of the government but it should not encroach upon the ancillary functions.
In the six decades of India being a republic this check and balance system, especially in the judicial appointments in the higher judiciary India has witnessed certain topsy- turvy situation. From the inception of the constitution the appointments of the higher judiciary is by the executive that is the president which was followed by various cases leading to the judges transfer III cases wherein the constitutionality of the collegiums system of five members was upheld.
With the introduction of Judicial Appointment Commission (Bill), a debate has begun regarding the encroaching powers of the legislation and executive influence in the judicial appointments.
So, in this research paper researcher wants to analysis all the aspects related to the Judicial Appointment and all the recent issues related to the rejection of the name of Gopal Subramaniam from the post of Judge. Also the researcher through this project would like to emphasize upon the impact of the new bill in the appointment of the higher judiciary and its comparison with the present system thereof.

“I foresee a storm of conflict brewing in its application” by Punchi, J. on the SCAORA Judgment

INTRODUCTION
There are three important organs of any government i.e. Executive, Legislature and Judiciary. These are commonly known as branches of government. In Indian government also, we have these three branches. Role of these three branches are: the Executive branch has the sole duty to administer all the states of the country, Legislature has the duty of law making and Judiciary review the laws which are made by the legislature.
Among all the three it is the Judiciary which performs its roles and functions sincerely to some extent. As we know that laws are the important part of any person as they govern the behavior of people, and it is Judiciary which interprets the laws made by the legislature and gives justice to people who are need of it. People look towards Judiciary as a savior of their fundamental rights, hopes and aspirations. Therefore, expectations from Judiciary are very high as compare to other two organs. Hence, it is important for Judiciary to perform its duties freely and in a justifiable manner.
Judiciary an organ of the state, courts the institution and judges being persons through whom courts functions. It’s the judges which ultimately applies the law reasonably and solve the cases and tries to bring justice in the society. Hence, the process of appointment of judges should be done freely and in a fair and reasonable manner but that is not so in this system. Appointment of judiciary was done according to the collegiums system. The collegium is secretive in nature and no information is revealed out regarding the manner of the selection of judges. This secretive nature of the collegium system brought much criticism in the legal fraternity. The defence taken by the judiciary was that it is necessary that such acts should be confidential as it leads to disturbance in the proper functioning and efficacy of the judicial system in the country. Judiciary said that the independence is necessary for the judges to be appointed as it is absolute necessity for the judiciary to maintain effective judicial administration in the country. Seervai argues that in ensuring the independence of the judiciary, the Constitutional Provisions bearing upon the appointment of Judges to the Supreme Court and the High Courts should not be interpreted as conferring absolute or unfettered power on the executive. He further states that any interpretation of Article 217 (“Appointment –of a Judge of a High Court”) which puts judicial independence at the mercy of an Executive must be rejected. Further, the arguments came in against of it that to bring transparency and maintain good reputation of the judiciary it is necessary that the informations and recommendations about the appointment should be revealed.

APPOINTMENT OF JUDGES
Under article 124(2) of Indian Constitution there is procedure regarding the appointment of Supreme Court judges. It states that:
Article.124 Establishment and constitution of Supreme Court-
(2) 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.
It means that it is President who has warrant under his hand and seal while appointing any judge. However, the President, before such appointment is obliged to consult with the such judges of Supreme Court and of the High Courts as he deems necessary. Further, in the case of appointment of a Judge other than the Chief Justice, the President shall consult the Chief Justice of India (“CJI”).
Now here comes two points to be noted in mind. The first is that no matter Art. 124(2) gives power to president for appointment of judges but ultimately it is union executive which exercises the power because President appoints judges on the advice given by the cabinet ministers. The second is that the consultation part is there in the Constitution because to restrain the Executive powers in judicial appointment and now if we allow Executive to exercise its powers then it would hamper the image of independent judiciary.
The procedure for appointment of a judge in High Court is given in Article 217 of Indian Constitution. It states that:
Article.217 Appointment and conditions of the office of a Judge of a High Court (1) 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 High Court
Now the question comes up that what does the consultation process includes. Many questions were raised regarding this process. Such questions were as follows which were framed by the Supreme Court in In Re: Presidential Reference case.
“Whether the consultation with the Chief Justice of India" in articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles”. Further whether the opinion of CJI will prevail or of President and several other questions were being raised regarding consultation. Such questions were answered in the case that “the expression "consultation with the Chief Justice of India" in articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles”. According to M.P Singh “The process of appointment of Judges is initiated by the CJI through a collegium consisting of himself and four of the senior-most judges of the Court. Recommendation of the collegium is binding on the President. However, the President may not appoint a person whom for specific reasons he does not consider suitable for appointment. In such a case, the collegium must reconsider its recommendation. On reconsideration, it may either drop the name of the person not found suitable by the President or reiterate its recommendation. In the later case, the President is bound to accept the recommendation”.
The first case related to appointment of judge is Union of India vs Sankal Chand Himatlal Sheth And Anr. In this case President issued notification in exercise of the powers given under Article 222(1) of the Constitution, president after consultation with CJI transferred Justice Sankalchand Himatlal Sheth, Judge of High Court of Gujarat to judge of Andhra Pradesh High Court. The notification was issued to all law departments, ministry of law and judge complied with the order but before taking the charge of the judge of Andhra Pradesh High Court, he filed a petition in Gujarat High Court and challenged the notification. The notification was challenged on the following grounds that his consent was not taken while passing the order and such consent must necessarily be there according to Article 222(1) of the Constitution; the transfer was not made in public interest which is given under Article 222(1) of the constitution; most importantly the consultation with the CJI as not taken. The majority opinion held that “Art. 222(1) casts an absolute obligation on the President to consult the Chief Justice of India before transferring a Judge from one High Court to another. This is in the nature of a condition precedent to the actual transfer of the Judge. Consultation within the meaning of Art. 222(1) means full and effective, not formal or unproductive consultation.”
This case leads the Supreme Court to safeguard the judiciary from the executive actions and Supreme Court through First, Second and Third Judge's case tried to maintain the independence of judiciary.

FIRST JUDGE'S CASE: S.P. GUPTA v. UNION OF INDIA
In this case the questions were raised regarding the appointment of the judges that what is the meaning of consultation, what is the validity of the opinion of CJI, who will be given primacy etc. According to the bench the consultation means which has the same meaning as under article 222(1) of Constitution. The consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India means a full and effective consultation not formal or unproductive consultation. This case held that the The President could override the opinion given by the functionaries. The action of President means acting through the Council of Ministers. No primacy could be given on the opinion of Chief Justice of India. The action of the President can only be challenged on grounds of mala fide or on the grounds of extraneous considerations. The word ‘consultation' does not mean concurrence. The expression ‘concurrence' was explicitly rejected by the Constituent Assembly. Justice Bhagwati in this case said that: the power of appointment of Judges is left to the Executive appears to be that the Executive is responsible to the Legislature and through the Legislature, it is accountable to the people who are consumers of justice. The power of appointment of Judges is not entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not have any accountability to the people”.
This judgment brought many criticism as the independence of judiciary was hampered because the primacy of judiciary was not given upper hand in appointing judges as CJI and CJ of High Court have knowledge regarding such appointment. Such powers were given in favor of executive which is an excessive power. But this judgment was overruled in second judges case.

SECOND JUDGE'S CASE: SUPREME COURT ADVOCATES ON RECORD ASSN. V. UNION OF INDIA
Before this case decided, there was one case namely Subhash Sharma v. Union of India. In this case Supreme Court stated that appointment of judges is not an executive act. In this case court also reconsidered regarding the fixation of judge strength, which was held non justiciable in the first judges case. It should be noted that of the 547 appointments to the higher judiciary in the decade ending 1993 only 7 were not in accordance with the opinion of the Chief Justice of India.
The Second Judges case overruled the first judges case. SC held that the primacy over appointment of judges is to be of CJI. “The debate on primacy is intended to determine who amongst the constitutional functionaries involved in the integrated process of appointment is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice. It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge, and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge. The primacy must, therefore, lie in the final opinion of the Chief Justice of the India unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that the appointment is not suitable."
Court also made it clear that the appointment is to be done after consultation with a collegium of judges of Supreme Court. This collegiums consist of CJI and two senior most judges of Supreme Court. THIRD JUDGE'S CASE: In Re: Presidential Reference
The present case has been filed by then President in exercise of powers given to him under article 143 of Constitution of India. The President has made the current reference containing questions related and doubts related to the appointment of judges of Supreme Court and High Court and transfer of judges from one High Court to another. The main question in this was that “Whether the consultation with the Chief Justice of India" in articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles”. Whether the transfer of judges is judicially reviewable in the light of second judges case.
The Supreme Court answered the above and other such questions related to it. It held that the expression "consultation with the Chief Justice of India" in articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles. It held that the transfer of judges can be judicially reviewable only to the extent that the consultation with other 4 senior most judges is taken or not and effected or not. Further, it said that the appointment of a judge of Supreme Court who is Chief Justice of High Court must be recommended by the CJI in consultation with four senior judges of Supreme Court. In case of appointment of a judge of High Court, recommendation must be made in consultation with two senior most judges of Supreme Court. Only the recommendation of CJI will not be given primacy, recommendation with consultation of judges of Supreme Court will be valid. In writing the recommendations positive reasons are needed to be recorded.

COLLEGIUM SYSTEM Vs. NATIONAL JUDICIAL APPOINTMENTS COMMISSION (NJAC)
The collegium is a system under which judges of the Supreme Court and High Court are appointed and transferred by a forum comprising of the Chief Justice of India, along with four senior-most judges of the Supreme Court. This system emerged in the judgment of Second Judges case. According to this judgment the collegium will consist of CJI and 2 senior most judges of SC. Further, in Third Judges case SC held that the collegium will consist of CJI and 4 senior most judges of SC. This case however made clear that the appointment of judges must be in consonance with the opinion of CJI, which will reflect the opinion of plurality of judges of collegium.
Advantages of Collegium System: 1. As discussed earlier that the judges are better aware of other judges and not executive. They will be in a better position as compare to executive in recommending the names of judges for the post of higher judiciary. 2. The performance of the judges are better known by the judges only and it is the main consideration in recommending the names. 3. Delay will not be there as they are aware of the performance of the judge hence the process for appointment will be speedy.
But, as there is saying that no one is perfect, this system also has some lacuna like transparency in appointment, etc.
These questions against the collegiums system were raised only after the revelations done by Justice Markandey Katju, former Judge Supreme Court, who has said that one madras High Court Judge was appointed in the judiciary despite having corruption charges against him and name of one judge who has done commendable job in judiciary was dropped. J. Katju further added that the system is highly unreliable as there is no transparency and requires executive to take part in it. Such series of events lead to birth of National Judicial Appointment Commission Bill which was passed by Parliament in August, 2014 and gives the commission a Constitutional recognition.
According to this the Commission will comprise of the Chief Justice of India, who will act as the Chairperson, two senior-most judges of the Supreme Court, Union Law Minister and two eminent citizens to be nominated by the Chief Justice of India, Prime Minister and Leader of opposition or Leader of largest opponent party in the Lok Sabha. One of the eminent citizens will be nominated from among the SC/ST, OBC, minorities or women.

CONCLUSION
Definitely this new commission for appointment of judges is better as it leads to transparency in the appointment process, accountability of judiciary increases, and eminent citizens now can be an important part in appointment of judges. But there are major drawbacks in this new system as executive is part of this system which leads to political intervention in the appointment of judiciary, no speedy appointments will be done as there are peoples who are not part of judiciary will take time to decide who is to appoint, most importantly it is hampering the doctrine of Separation of Powers, which is basic structure of Constitution. After all the controversies which were happened regarding the appointment and transfer of judges we need to ask the question that whether we are in need of this new system or we can brought little bit changes in the earlier system? Whether such step will not hamper the independence of judiciary to large extent or for the sake of politics we have transgress the independence of judiciary?
India’s renowned lawyer and eminent jurist Mr. Ram Jethmalani has vehemently opposed the Union Law Minister as a member in the commission because most of the Law Ministers are advocates by profession and after few years they would have to appear in front of the same judge they have appointed while they were the member of the commission. The judge in that case might favour the then Law Minister and be biased towards him.
Now, if judiciary wants to maintain its independence it needs to have a dominant role in the commission and not to sway by the decision of other members. I am not criticizing the new commission but what I am suggesting is that this new system was not the need of hour in the current system. No one is perfect the judiciary at some point of time digress from its objects and duties but it is not a kid that requires every time parents (executive). Judiciary is capable enough to maintain and do all its jobs on its own and no role of executive is needed in it.

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[ 2 ]. Ashish Somani 12bal051 BA L.L.B (hons.) A section V Semester, Institute of Law, Nirma University.
[ 3 ]. S.C. Advocates on-record Association Vs. Union of India, (1993) 4 SCC 441
[ 4 ]. http://www.lawteacher.net/judicial-law/essays/judiciary-of-hope-and-aspirations.php
[ 5 ]. ibid
[ 6 ]. http://www.deadlylaw.com/2014/08/23/collegium-v-njac
[ 7 ]. Seervai,at p.2836.
[ 8 ]. AIR 1999 SC 1
[ 9 ]. In Re: Presidential Reference AIR 1999 SC 1
[ 10 ]. ibid
[ 11 ]. Constitution of India Revised by M.P.Singh (Tenth Edition), (2004), at p. 413
[ 12 ]. 1977 AIR 2328
[ 13 ]. ibid.
[ 14 ]. AIR 1982 SC 149
[ 15 ]. Dr. B.R. Ambedkar's speech in that regard has been quoted by Bhagwati J in paragraph 29 of S.P.Gupta case
[ 16 ]. AIR 1994 SC 268
[ 17 ]. AIR 1991 SC 631
[ 18 ]. Cyrus Das & K Chandra (Ed.) ‘Judicial Accountability: India's Methods and Experience' in ‘Judges and Judicial Accountability'
[ 19 ]. S.C. Advocates on-record Association Vs. Union of India, (1993) 4 SCC 441
[ 20 ]. AIR 1999 SC 1
[ 21 ]. http://www.deadlylaw.com/2014/08/23/collegium-v-njac/
[ 22 ]. http://www.deadlylaw.com/2014/08/23/collegium-v-njac/