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Mainstream, VOL LVI No 32 New Delhi July 28, 2018

Judiciary: At the Crossroads

Sunday 29 July 2018

by Shachi Chawla

The third pillar of the government, judiciary, was envisaged to play an important role in the growth and development of the young democracy of India. It was regarded by the framers of the Constitution as central to a social revolution. Granville Austin points out that “the Constituent Assembly brought to the framing of the judicial provisions of the Constitution an idealism equalled only by that shown towards Funda-mental Rights”. It saw judiciary as critical to “upholding equality that Indians had longed for during colonial days, but had not gained”.1 It was to uphold the rule of law; safeguard the supremacy of the Constitution, act as a watchdog over the other organs of government; a guardian of citizens’ rights, upholding social justice, a custodian of democracy. The significance attached to the functions of the judiciary led to incorporation of provisions relating to the independence of the judiciary in the Constitution. As Pandit Nehru said, “Rule of law seems to be synonymous with the maintenance of civilised existence. And if there is to be rule of law, there should be independent judges to administer the law.”2

Debates in the Constituent Assembly

The various amendments moved with respect to the appointment of judges of the Supreme Court in the Constituent Assembly can be categorised into three different proposals. The first proposal was that the judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. The other suggestion was that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament. The third proposal (mooted by K.T. Shah) was that they should be appointed in consultation with the Council of States.

The draft Constitution took a middle course between the system in the UK (where appointments are made by the Crown, without any kind of limitation) and the system in the USA (where appointments are made by the President only with the concurrence of the Senate). While discussing the draft Article 163, Dr B.R. Ambedkar strongly defended it. “The draft Article does not make the President the supreme and absolute authority in the matter of making appointments. The provision in the Article is that there should be consultation of persons who are ex-hypothesis, well qualified to give proper advice in matters of this sort.”3 He strongly advocated that ‘consultation’ must be used in place of ‘concurrence’. He saw the proposal of the concurrence of the Chief Justice as a dangerous proposition. He pointed out: “I personally feel no doubt that the Chief justice is a very eminent person. But after all the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief justice practically a veto upon the 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.”4

Constitutional Provisions

The appointment of judges of the Supreme Court and High Court is governed by Articles 124(2) and 217(1) of the Constitution respectively.

The President appoints the judges of the Supreme Court after consultation with the Chief Justice of India and other Supreme Court and High Court judges as he may wish. It became a convention that the President would consult the outgoing Chief Justice of India about his successor, though this was a formality so long as the seniormost judge routinely became Chief Justice.

Appointment of Judges: Executive Vs Judiciary

Over a period, the appointment of judges has emerged as a contentious issue, with constant friction between the executive and the judiciary. During the Nehruvian period, the Chief Justice of India had a final say over the appointment decisions, a result of the conventions and practices of the time and the Chief Justices’ strength of character.5 Pandit Nehru himself rejected the idea of a packed court of individuals of the government’s own liking for getting decisions in its own favour. He wanted first-rate judges, not subservient courts.6 The appointments of the Chief Justice of a High Court or the Chief Justice of India were rarely controversial as long as the principle of promotion by seniority was adhered to by the government. Though the seniority principle was followed by the government, however, there were rumoured instances of the ‘supersession’ or intended supersession of a senior judge by a junior judge to be the Chief Justice of India.7 The Law Commission, chaired by N.C. Setalvad, had concluded that some High Court appointments had been made on considerations “of political expediency or regional or communal sentiment”.8 The Law Commission’s recommen-dation that the Chief Justice of India, should be chosen not merely on the basis of seniority, but should be the most suitable person, whether taken from the court, the bar or the High Courts9 was applied in an incorrect way in 1973, to defend A.N. Ray’s appointment as the Chief Justice of India, superseding three seniormost judges—Justice Shelat, Justice K.S. Hedge, Justice A.N. Grover. In the Lok Sabha, Mohan Kumarmangalam, who was the driving force behind the supersession, justified A.N. Ray’s appointment by reasoning: “We will take the forward looking judge and not the backward looking judge.”10 The government’s goal of social revolution could be achieved by having an accommodating Supreme Court.

The concept of ‘committed judiciary’, with the judiciary toeing the lines of the executive was a serious blow to the independence and impartiality of the judiciary, aimed to unbalance the equation between the three arms of the government.

On January 28, 1977, another blow to judicial independence came when the Janata Party Government headed by Morarji Desai appointed M.H. Beg as the Chief Justice of India superseding H.R. Khanna. However in 1978, the government adhered to the Constitution by appointing Y.V. Chandrachud as the Chief Justice of India, on the basis of the seniority principle.

Interpreting Consultation and Birth of Collegium System

The tussle between the executive and the judiciary for control over the process of judicial appointments resulted in the birth of the collegium system in the ‘Three Judges’ case.

First Judge Case: In S.P. Gupta Vs Union of India 1981, P.N. Bhagwati came down in favour of the executive by pointing out: “Chief Justice of India, the Chief Justice of the High Court and such other judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.”11

A similar judgment was given by the Court in Sankalchand Seth’s case (1977). While interpreting the word “consultation”, the Supreme Court ruled that the term can never mean “concurrence”.

Second Judges Case: In the Supreme Court Advocates — on Record Association Vs Union of India, 1993, the Supreme Court led by J.S. Verma overruled the judgement of the First Judges case. It was held that “consultation” really meant “concurrence” and that the Chief Justice of India’s views enjoy primacy since he is “best equipped to know and assess the worth of candidates”. The judgment gave birth to the collegium system for appointing judges in the higher judiciary.

The working and transferring of the collegium system was clarified in the Third Judges Case (1998) led by CJI S.P. Bharucha in the light of President K.R. Narayanan’s reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution. In the appointments and transfer to the Supreme Court, the collegium will comprise of the Chief Justice of India and his four senior-most colleagues. In the case of appointments to the High Court, the collegium will be Chief Justice of India and his two seniormost colleagues. It said the collegium must take into account the opinion of the Chief Justice India which “would be entitled to the greatest weight” in relation to the views of other judges of the High Court who may have been consulted and the views of the colleagues on the Supreme Court Bench “who are conversant with the affairs of the concerned High Court”.12 This judgment completely excluded the role of executive in the process of judicial appointments.

Collegium System — Judges appoint Judges 

The Collegium System, as it has evolved through the judgement of the Supreme Court, has been a non-transparent process of appointment and transfer of judges; a closed door mechanism whose deliberations are not open to the public. Justice J. Chelamesar, critical of the collegium system, pointed out that “the proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.13 There have been allegations of bias, favouritism and nepotism in the appointment and transfer of judges. The collegium system of the Indian judiciary has not been accommodative in giving representation to the diversities of Indian society. Concerns have been raised with respect to low representation of SC, ST, and OBCs in the higher judiciary. In the past eight years, no judge from SC community has been elevated to the Supreme Court, after K.G. Balakrishnan’s retirement as Chief Justice of India in 2010. Even in 24 High Courts across the country, there is not a single Dalit judge serving as the Chief Justice.14 Gender disparity is also witnessed in the higher judiciary. Of the 676 judges serving in the Indian judiciary. Only 70 are women, that is, 10.4 per cent representation of women.15 The Supreme Court has only two women judges. The composition of the judiciary inadequately represents the different sections of society, which in turn, has an effect on the judgements given by the Court.

To correct the flaws of the collegium system, Parliament passed the 99th Constitutional Amendment to establish the National Judicial Appointment Commission (NJAC), a constitutional body aimed to bring transparency in the appointment of judges. The Commission would consist of six persons—Chief Justice of India, the two seniormost judges of the Supreme Court, Law Minister and two eminent persons. These eminent persons are to be nominated for a three year term by a committee consisting of the CJI, Prime Minister, Leader of Opposition in the Lok Sabha and must have at least one woman/SC/ST/Minority/OBC representation. However, the Supreme Court rejected the NJAC Act and the 99th Constitutional Amendment as it infringed on the independence of the judiciary which is a basic structure of the Constitution. To overcome the pitfalls of the collegium system, the Court has asked the government to prepare a memorandum of procedure (MoP) in consultation with the Chief Justice of India to enable transparency in the appointment of judges. While the MoP is still to be drafted by the government, the collegium recommendation has been sent back by the government for reconsideration for elevation of Justice K.M. Jospeh’s elevation to the Supreme Court. This has further accentuated the tension between the executive and judiciary in the appointment of judges.

An attempt to bring about transparency in the appointment of judges was taken up by the Supreme Court, whereby the decisions taken by the collegium indicating the reasons shall be put on the website of the Supreme Court.16 This is a significant step to bring openness in the process of appointment of judges.

The convention of the Chief Justice of India recommending his successor, by following the seniority principle should be abided by the appointment of the Chief Justice of India, after Chief Justice of India Deepak Mishra’s retirement on October 2, 2018. The credibility of the judiciary and the people’s trust and faith in the judiciary can only be maintained with reforms in the process of appointment of judges to ensure that the judiciary is accountable to the public. The cardinal principles—seniority, merit and attempts to bring about diversity in appointment in terms of gender, religion, caste and ethnicity—should be the guiding principles in the appointment and transfer of judges so as to ensure the independence of the judiciary.


1. Graville Austin, Indian Constitution: Cornerstone of Nation, Oxford University Press, New Delhi, 2006, p. 12.

2. Pt. Jawaharlal Nehru, Speeches (1964), p. 426.

3. “The Chief Justice is ...: Members of the Constituent Assembly Discuss Judges’ Selection; Caravan, August 21, 2017.

4. Ibid.

5. Granville Austin, Indian Constitution: Cornerstone of Nation, Oxford University Press, New Delhi, 2006, p. 125.

6. Sorabjee, Soli, J., ‘In Nehru’s Judgment’, Times of India, April 30, 1989.

7. For example, Mr. B.P. Sinha was told that when Chief Justice Harilal Jekisondas Kania died suddenly and prematurely, the government had been ‘inclined to pass over’ Justice M. Patanjali Sastri, Justice Mahajan and Justice B.K. Mukherjee—in order of their seniority—in favour of S.R Das as the Chief Justice of India. But an ‘unwritten law’ prevented this, Sinha recalled (Granville Austin, p. 134).

8. Granville Austin, Indian Constitution: Cornerstone of Nation, Oxford University Press, New Delhi, 2006, p. 131.

9. Fourteenth Report: Reform of the Judicial Administration: Classified Recommendation; p. 2.

10. Kumaramangalam, S., Mohan, Judicial Appointments, Oxford and IBH Publishing Co., New Delhi, 1973, May, p.72

11. Abhishek Sudhir, “Restoring the Judiciary’s Creditbility”, The Hindu, July 24, 2014.

12. Ibid.

13. Utkarsh Anand, “How judges appoint judges, the debate around it”, The Indian Express, November 15, 2016.

16. Anantha Krishnan G., “Supreme Court Opens a Window to Itself, starts to disclose appointment decisions”, The Indian Express, October 7, 2017.

14. Sanya Dhingra, ‘No Dalit judge in the country’s top court that passed order on SC/ST Act’, The Print, April 2, 2018.

15. Srujana Bej, “Skewed Scales: Indian Judiciary is 90% Male and Mostly Upper Castes”, The Quint, January 12, 2017.

Dr Shachi Chawla is an Assistant Professor, Department of Political Science, Daulat Ram College, University of Delhi.

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