TAMIL NADU NATIONAL LAW SCHOOL

THIRUCHIRAPPALLI

ACADEMIC SESSION:
2016-2017

CONSTITUTIONAL LAW II PROJECT:

CRITICAL ANALYSIS ON:-

S.P.GUPTA V. UNION OF INDIA

SUBMITTED TO: SUBMITTED BY:

P.PALLAVI

Prof. MAHINDRA PRABU M ROLL NO: BA0140038

1
CONTENTS:-

Sl. No. Title Page no.

1) Table of cases. 3
2) List of abbreviations. 3
3) Tentative Chapterisation. 4
4) Chapter I Introduction. 5-7
5) Chapter II Research Methodology. 8-13
6) Chapter III Judiciary stance regarding
appointments since S.P.Gupta case. 14-17
7) Chapter IV- Critical analysis 18- 25
8) Chapter V- conclusion and recommendation 26 28
9) Bibliography 29- 30

2
TABLE OF CASES

1. Namsher Singh v. state of Punjab (1974) 2 SCC 831

2. Union of India v. Sankalchand himmatlal Seth (1978) 1 SCR 423
3. S.P.Gupta v. Union of India AIR 1982 SC 149
4. Indra Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
5. Sub- committee on judicial accountability v. union of India (1991) 4 SCC 699
6. Subhash Sharma v. Union of India (1991) supp(1) SCC 574
7. Supreme court advocates on record association v. union of India (1993) 4 SCC 441
8. Union of India v. Pratibha Bonnergea (1995) 6 SCC 765
9. In re, special reference AIR 1999 SC 1
10. Advocates on record association and another v. union of India 2015
11. Naaz foundation v. government of NCT of Delhi and others WP(C) no.7455/2001
12. Secretary general, supreme court of India v. subash Chandra agarwal 2010

LIST OF ABBREVATIONS

1. CJI Chief justice of India

2. NJAC National Judicial Appointments commission
3. V. versus
4. i.e that is
5. art Articles
6. sub substitution
7. CAT central administrative tribunal
8. E.g. example
9. RTI right to information
10. MOP memorandum of procedure
11.HC high court
12. OBC other backward caste
13. PM Prime minister
14.CM chief minister
15.SC- supreme cort
16.NCRWC national commission to review the working of the constitution
17.CJ chief justice

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TENTATIVE CHAPTERISATION

CHAPTER I: - INTRODUCTION

The chapter will try to outline the objective of the research paper and will help the researcher
understand the background of the study and secure in-depth knowledge of this paper.

CHAPTER II: - RESEARCH METHODOLOGY

This chapter will try to outline the research methodology utilized to identify how the cases before
and after the SP Gupta case have impacted the judiciary in its procedures of appointments. This
chapter will lay the philosophies, strategies, techniques utilized in the research paper

CHAPTER III:- JUDICIARYS STANCE REGARDING APPOINMENTS SINCE

S.P.GUPTA

This chapter will try to analyze the Judiciarys stance over time in different cases regarding the
appointments and how SP Gupta was the base of the debate between the judiciary and the executive

CHAPTER IV:- CRITICAL ANALYSIS

This chapter shall try to arrive at the solutions for the research questions by analyzing the
information provided in the previous chapters and by following the predefined guidelines set in the
research methodology.

CHAPTER V:- CONCLUSIONS AND RECOMNDATIONS

This chapter shall describe how the researcher would like to conclude the research and help the
researcher outline the findings of the research and list suggestions that could be presented.(if any)

4
 CHAPTER I

INTRODUCTION

RESEARCH OBJECTIVE:

The research paper will try to analyze the Courts interpretation of Article 1241 and Article 2172
since the SP Gupta case and interpret the state of Judicial Appointments in India

BACKGROUND OF THE STUDY

The Supreme Court of India's collegium system, which appoints judges to the nation's constitutional
courts, has its genesis in, and continued basis resting on, three of its own judgments which are
collectively known as the Three Judges Cases3.

Over the course of the three case namely: S. P. Gupta v. Union of India - 1982 (also known as the
Judges' Transfer case); Supreme Court Advocates-on Record Association v. Union of India 1993
12; In re Special Reference 1 of 19994.

1
See Art. 124, Constitution of India, 1950
The significant Article for the appointment of a Supreme Court judge is Sub-clause (2) of Article 124. The said Article
peruses as follows:
Article 124: Establishment and Constitution of the 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 the office until he attains the age of sixty five.
Provided that in case of appointment of a Judge other than the Chief Justice , the Chief Justice of India shall always be
consulted.
2
See Art. 217, Constitution of India, 1950.
The significant Article for the appointment of a High Court judge is Sub-clause 1 of Article 217. The said Article
peruses as follows:
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.
3
http://www.thehindu.com/news/national/the-validity-of-the-collegium-system/article6148870.ece

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The court evolved the principle of judicial independence to mean that no other branch of the state -
including the legislature and the executive - would have any say in the appointment of judges. The
court then created the collegium system, which has been in use since the judgment in the Second
Judges Case was issued in 1993. There is no mention of the collegium either in the original
Constitution of India or in successive amendments.

The Parliament and the executive have done little to replace it. The Third Judges Case of 1998 is
not a case but an opinion delivered by the Supreme Court of India responding to a question of law
regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998
under his constitutional powers.

In 1982 the courts gave the government the upper hand in the S.P. Gupta vs the Union of India
case. That court held that when it came to appointing and transferring judges, the primacy belonged
to the executive. The S.P. Gupta decision said the consultation by the President with the CJI when
it came to judicial appointments was purely formal.

In 1993 the judiciary got the upper hand. It reversed the S. P. Gupta verdict by deciding the CJI
actually had primacy when it came to appointments and the President couldnt make any
appointments unless the CJI agreed.

The judiciarys upper hand was solidified in 1998 by the Third Judges case. This time around the
Bench ruled:

As to appointment of the Supreme Court Judges, the Chief Justice of India should consult a
collegium of four senior-most judges of the Apex Court. Even if two Judges give an adverse
opinion, the CJI should not send the recommendation to the Government.

National Judicial Appointments Commission (NJAC) was proposed to be a body responsible for the
appointment and transfer of judges to the higher judiciary in India in August 2014. The NJAC Act
came into force from 13 April 2015. On 16 October 2015 the Constitution Bench of Supreme Court
struck down the NJAC as unconstitutional.

4
An Appraisal Of The Judicial System In India: A Critical Study On Judicial Independence Vis--Vis Judicial
Accountability, Dr. More AtulLalasaheb

6
It is still a raging debate whether the Judiciarys stand on appointments is acceptable and various
organizations and entities question the credibility of the process utilized by the Collegium5

5
Debating the NJAC: The Second Judges Case, Judicial Appointments, and the Basic Structure II, Indian
Constitutional Law and Philospohy, July 16, 2015 2:49 PM
https://indconlawphil.wordpress.com/2015/07/16/debating-the-njac-the-second-judges-case-judicial-appointments-and-
the-basic-structure-ii/

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 CHAPTER II

RESEARCH METHODOLOGY

RESEARCH OUESTIONS:

Whether the current laws and procedures prevailing around the appointment and
transfer of judges by the collegium free from biased opinions and illegitimate advice?
Whether the current laws and procedures prevailing around the appointment and
transfer of judges by the collegium transparent and whether the collegium exercised
the judicial freedom too far in this regard?

METHODOLOGY

Figure 1: Legal research Styles6

6
Arthurs,Legal research Styles, Wiley Publishers (1983)

8
The Legal research style utilized will be fundamental in nature as the research paper involves
analyzing the impact of the Three Judges case on the decisions taken by the syndicate of courts in
India and how it has helped the PILs to refine the arguments and ponder about the complexity and
secretively of the collegium which plays a major role in the appointment of the judges. Not only
that, the Fundamental Research style has been utilized as the research does not have the proficiency
and understanding of the Jurisprudence, that Jurists have acquired over the years, to be in a position
to analyze the philosophy behind the cases and share the thoughts.

This paper being a paper for academic constituency, the Fundamental research style has been
utilized. The methodology utilized to further simply the research style has been given below.

Figure 2: The Research Onion7

Research Philosophy: Research Philosophy identifies with the advancement of learning and
contains imperative suspicions about the path in which individuals see the world. Saunders et al.
(2009)8, states that one research philosophy does not inexorably need to be superior to anything

7
Saunders, Lewis &Thornhill, 2009, p.108
8
Ibid , footnote 7

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another. Rather, the creators contend that the research logic you receive ought to rely on upon the
research question you try to answer.

The research philosophy utilized will be Constructive Realism9. Alexander Wendt10, a

constructivist, depicts the production of ideas11, that is, the development of inter-subjective
understandings and information in a given social and chronicled setting, as something that can
encourage either struggle or participation as a kind of input circle prompting either horrendous or
temperate cycles while denying rebellion's deterministic part and pre-given attributes of state
systems, identities, and interests.

Research Approach: The research approach utilized will be deductive in nature, as the research
involves constructing a research strategy and analyzing the hypothesis and involves arriving at a
conclusion through deduction from existing laws, case laws, premises or propositions.

"A deductive methodology is concerned with adding to a speculation (or theories) taking into
account existing hypothesis, and after that planning an examination procedure to test the theory. 12"

Deductive methodology can be clarified by the method for theories, which can be gotten from the
recommendations of the hypothesis. As such, deductive methodology is concerned with deducting
conclusions from premises or suggestions. "Derivation starts with a normal example that is tried
against perceptions, though incitement starts with perceptions and tries to discover a pattern inside
of them13"

9
RanaSobh et all, Research design and data analysis in realism research, 2005
10
Alexander Wendt, Anarchy Is What States Make of It: The Social Construction of Power
Politics, International Organization 46-2 (1992), pp. 403-407
11
Legro defines the term idea as the collective beliefs of societies and organizations about
how to act. This definition is also strongly associated with intersubjective understandings
and knowledge of a particular group in a given social and historical context. Jeffrey W.
Legro, What China Will Want: The Future Intentions of a Rising Power, Perspectives on
Politics 5-3 (2007), p. 522.
12
Wilson, Deductive Approach, 2010, p.7
13
Babbie,The practice of social research, 2010, p.52

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Research Strategy: The research strategy involved will be archival research as the research
requires the researcher to analyze historical data from case decisions, expert views, and jurists
analysis of the stands taken over the case by the Judiciary.

Archival research is a kind of essential exploration which includes searching out and separating
proof from unique chronicled records. These records might be held either in institutional chronicle
archives, or in the guardianship of the association (whether an administration body, business,
family, or other organization) that initially created or gathered them, or in that of a successor body.
Archival research can be stood out from (1) secondary research (embraced in a library or online),
which includes recognizing and counseling auxiliary sources identifying with the topic of enquiry;
and (2) with different sorts of essential exploration and observational examination, for example,
fieldwork and experiment14.

Research choice: The research choice utilized will be a Mono method research choice as it involves
only qualitative analysis of the data and does not involve analyzing any statistics, pictorial
representations, data or numbers15.

Time Horizon: The time horizon will be longitudinal in nature as the research involves studying the
same variables, i.e., the judges case over time and how it has impacted appointments of judges
overtime.

A longitudinal study, similar to a cross-sectional one, is observational. Along these lines, by and by,
researchers don't meddle with their subjects. In any case, in a longitudinal study, analysts direct a
few perceptions of the same subjects over a timeframe, in some cases enduring numerous years.

Thee advantage of a longitudinal study is that scientists can identify advancements or changes in the
qualities of the objective populace at both the gathering and the individual level. The key here is
that longitudinal studies expand past a solitary minute in time. Subsequently, they can set up
appointments of events16.

14
McBurney, Research Methods, 2009, p 228
15
W. Creswell, Research Design: Qualitative, Quantitative, and Mixed Methods Approaches, 2013, p 122
16
Mukherjee et all,Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries, 2014, p 236

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Techniques and data Analysis: The research technique involved will be empirical in nature as the
research involves identifying and analyzing the data that surrounds us.

Perception is the way to this kind of examination. In this, one watches and tests the example of
some particular occasions with genuine information to reach a conclusion. Bases on the outcomes or
the tests, specialists finish up and attract lines to anticipate these kinds of occurrences with a
specific level or limit of certainty17.

17
CR Kothari,Research Methodology: Methods and Techniques, New age international Publishers, 2004, p 27

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 CHAPTER III

JUDICIARYS STANCE REGARDING APPOINMENTS SINCE S.P.GUPTA

It is most likely the freedom of the Judiciary and appointments of judges is firmly related. In any
case, at the beginning, take note of that the freedom of the Judiciary can't be taken a gander at as a
flat out rule. While a few viewpoints influencing judicial autonomy can be amended by institutional
changes, different angles essentially can't be liable to institutional redresses. For instance, the
Judiciary might be totally free from the executive, yet an individual judge might have certain
political belief systems that might shading his judgment in this manner keeping the adjudicatory
procedure, to some degree, from being really autonomous and unprejudiced. In this way, any
enquiry into whether an institutional instrument accommodates judicial freedom ought to
fundamentally investigate the level of judicial autonomy instead of connect with the topic of how
total the freedom is.

In Shamsher Singh v. State of Punjab18, the court ruled that the freedom of the Judiciary is a
cardinal principle of the Indian Constitution and stated that the provisions for the appointments and
transfer of Judges are guarded by the relevant article making consultation with the Chief Justice of
India obligatory.

The freedom of the Judiciary was undermined to certain degree by the Emergency. There were
expansive scale transfers of judges amid the Emergency. Indeed a rundown of 56 Judges to be
transferred without their assent was readied. Be that as it may, just 16 were transferred while others
were spilled keeping in mind the end goal to debilitate the Court. This was tested in the Court in
Union of India v. Sankalchand Himmatlal Seth19. The Supreme Court struck down the activity of
the Union. "Transfer" was given a narrow interpretation to keep up the autonomy of the Judiciary.
The Supreme Court was called upon to defend the autonomy of the judiciary from undesirable
appointments and discretionary transfers by the executives through 3 cases-prominently known as
the First, Second and Third Judge's case. Consequently, the method of appointment of the judges
went under the scanner interestingly.

18
Shamsher Singh v.State of Punjab, (1974) 2 SCC 831
19
Union of India v. Sankalchand Himmatlal Seth (1978) 1 SCR 423

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The system was evolved through Supreme Court judgments in the Three Judges Cases: S.P. Gupta
case (December 30, 1981) or the First Judges Case: It declared that the primacy of the CJIs
recommendation on judicial appointments and transfers can be refused for cogent reasons. The
ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

The Court in the second Judges Case was basically concerned with reevaluating its choice in the
S.P. Gupta v. Union of India AIR 1982 sc 14920 ["1st Judges Case"]. In the first Judges Case, a 7
judge seat held that the executive had supreme control over judicial appointments and that the
Judiciary was simply to be counseled in matters identifying with appointments. It is in this
connection i.e., the setting of the first Judges Case proclamation that the judgment of the Court in
the second Judges Case must be perused.

It is also remarkable that this view was taken by the court just eight years after Kesavananda
Bharati. It was a restrained judiciary. It needs to be noted that the judgment was delivered in
December 1981 after Indira Gandhi had returned to power with a decisive majority, after two short
lived and weak governments.

Indira Nehru Gandhi v. Raj Narain21 stated that the essential structure is not a few "agonizing
ubiquity in the sky separated from particular procurements of the Constitution." various judgments
have drawn the fundamental structure from particular established procurements. Following this
technique, the above portion exhibits that in the sentiment of the Constitution Bench, Judicial
autonomy, as a property of the fundamental element of the tenet of law, was drawn from different
Constitutional procurements, including the appointment procurements Articles 124(2) and 217(1).

Two years before The Second Judges Case, in Sub-Committee on Judicial Accountability v. Union
of India,22, a Constitution Bench of the Supreme Court referred to a number of constitutional
provisions that safeguarded the independence of the judiciary, including Articles 124(2) and 217(1)
and further affirmed the decision given in second Judges case..

20
The court held that the Supreme Court held by a majority that among the opinion of the three constitutional
functionaries, the opinion of the Chief Justice of India did not enjoy primacy over those of the other two in the matter of
appointment of judges. This view paid due regard to plain language; consultation was not an ambiguous word at all.
21
Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299
22
Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699

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In Subhash Sharma v. Union of India23, The Bench of three Judges stated that the opined view in
the first Judges case should be referred to and decided by a larger bench. Although, the case is not
deemed prominent as it only asks the First Judges case to be reviewed by a larger bench. The court
in that Judgment affirmed the idea of a judicial commission that would deal with the matters of the
appointment of judges.

Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 44124 or the
Second Judges Case (October 6, 1993): The majority verdict gave back CJIs power over judicial
appointments and transfers. It says the CJI only need to consult two senior-most judges. The role
of the CJI is primal in nature because this being a topic within the judicial family, the Executive
cannot have an equal say in the matter, the verdict reasoned. However, confusion prevails as the
CJIs start taking unilateral decisions without consulting two colleagues. The President is reduced to
only an approver.

The Court in this case, therefore, directly linked the issues of independence and the manner of
appointment.

The judgment in Second Judges case was a high level of judicial creativity. In the name of securing
independence of judiciary, it rewrote the entire constitutional provisions with regard to the
appointment of judges. The High Court judges, who figure as consulates in the appointment of a
Supreme Court judge in Article 214(2) has no role in the new set up. By giving primacy to the
23
See Generally Subhash Sharma v. Union of India (1991 Supp (1) SCC 574).
The Court made a significant observation: We are aware of the position. The need to set up the National Judicial
Commission through a Constitutional Amendment is in contemplation. In the event of the amendment being carried and
a National Judicial Commission being set up the characters of the ratio in S.P. Gupta's case on the status of the Chief
Justice of India may not be necessary to be examined. In view of the fact that by the amendment of the Chief Justice of
India would become the Chairman of the Commission. In case the Commission is not appointed, the two questions
indicated above which are vital, had to be decided by a larger Bench
24
See GenerallyThe Court held that: When the Constitution was being drafted, there was general agreement that the
appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this
was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India
and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary
even at the time of their appointment, instead of confining it only to the provision of security of tenure and other
conditions of service after the appointment was made. It was realised that the independence of the judiciary had to be
safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also
by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of
the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of
consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The
Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment
is ultimately an executive act.

15
opinion of the CJI in the matter of appointment of judges, the expression consultation' has become
concurrence' something that was explicitly rejected in the Constituent Assembly by
B.R.Ambedkar. Constitutional Assembly Debates were thus disregarded. In such a case the
integrated participatory consultative process' as said in the Conclusions stands in conflict with
Conclusion 7 which says CJI has not just primacy but is determinative.

The above position was embraced in Union of India v. Pratibha Bonnerjea25, a case decided two
years after The Second Judges Case, which was about benefits of CAT judicial officers (who were
dealt with, for this reason, as proportionate to High Court judges). The Court in this manner needed
to explain upon the relationship between the administration and judges.

From the scheme of the Constitution to which we have adverted briefly it is obvious that the
Constitution-makers were evidently keen to ensure that the judiciary was independent of the
executive Articles 233 to 237 have, therefore, provided a wholly different mode of selection and
appointment of Judicial Officers at the grass roots level and up to the District Courts from the one
provided for other civil posts.

In Special Reference case of 199926 or the Three Judges Case (October 28, 1998): On a reference
from former President K.R. Narayanan, the Supreme Court lays down that the CJIs should consult
with a plurality of four senior-most Supreme Court judges to form his opinion on judicial
appointments and transfers.

National Judicial Appointments Commission27 (NJAC) was a proposed body which would have
been responsible for the appointment and transfer of judges to the higher judiciary in India. The
Commission was established by amending the Constitution of India through the ninety-ninth
constitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the
Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014. The NJAC would have
replaced the collegium system for the appointment of judges as invoked by the Supreme court via
judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial
Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the

25
Union of India v. Pratibha Bonnerjea, (1995) 6 SCC 765
26
In Re: special reference, AIR 1999 SC 1
27
The National Judicial Appointments Commission Act, 2014

16
functions of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional
Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by
the President of India Pranab Mukherjee on 31 December 2014. The NJAC Act and the
Constitutional Amendment Act came into force from 13 April 201528.

In the most recent case on Judicial Appointments, i.e. The Fourth Judges Case Supreme Court
Advocates-on-Record-Association and another V. Union of India (2015), the Supreme Court ruled
in a 4:1 decision that the NJAC Act is unconstitutional and declared the Act and the 99th
Amendment Act as unconstitutional and void, further strengthening the Collegium process and
preserving the independence of the Judiciary29.

This resulted in striking down the entire 99th amendment act as unconstitutional which was
pronounced liable to be set aside as being ultra vires the provision of the Constitution. The Court
released an order dated November 2nd 2015 requesting a nation-wide response on proposals to
perfect the present collegium system.

28
Mohit Singh,NOTIFIED: Constitution (Ninety-ninth Amend) Act, 2014 & National Judicial Appointments
Commission Act, 2014,April 13, 2015 Law street, http://onelawstreet.com/2015/04/notified-constitution-ninety-ninth-
amendment-act-2014-and-national-judicial-appointments-commission-act-2014/
29
Shubhendu Mishra, Neo- Collegium: The Legacy of Fourth Judges Case, Libertatem Magazine, December 2015,
http://mylibertatem.com/neo-collegium-the-legacy-of-fourth-judges-case/

17
 CHAPTER IV

CRITICAL ANALYSIS

1) Whether the current laws and procedures prevailing around the appointment and transfer
of judges by the collegium free from biased opinions and illegitimate advice?
A Judiciary which has complete control over its own structure would have a club like outlook.
Therefore, judges who don't subscribe to the perspectives of the Collegium may not be considered
for appointment.

For e.g. Justice A.P. Shah30 was not considered for rise to the Supreme Court as he delivered
landmark judgments like in Naaz Foundation31 Case authorizing homosexuality, in the Subhash
Agarwal's32 case brought the of the CJI under the ambit of the RTI, much to the disappointment of
the Court. This truth be told is fortified by the way that Justice S.H.Kapadia, one of the individuals
from the Collegium is accepted to have told the legal counselors who met him that the judgments
conveyed by Shah was for "superfluous" reasons-that is contemplations not relevant to the case
impacted the judgment. In the event that such a "cadre" exists inside of the Collegium, it will be
troublesome for the good judges to make it to the Apex Court.

Though, the Judiciary has asked the Public to give their advice on refining the collegium process in
their gazette dated November 2nd. It is unlikely that the Judiciary will heed to any advice that might
minimize its autonomy as the Judiciary and let the Executive have a hand in its operations, as that
might let the executive choose someone who would have the same political agenda as them, which
might lead to a greater Judicial mishap.

30
Ridhima Kumar , RTI ten years later: how it changed Subhash Agrawal's life, Governance Now, November 3, 2015
http://www.governancenow.com/news/regular-story/rti-ten-years-later-how-it-changed-subhash-agrawals-
life#sthash.4zChZUc4.dpuf
31
See Naaz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001
32
See Secretary General, Supreme Court of India v. Subash Chandra Agarwal, 2010

18
2) Whether the current laws and procedures prevailing around the appointment and transfer
of judges by the collegium transparent and whether the collegium exercised the judicial
freedom too far in this regard?
This commonality was definitely changed in 1970s. What began off as the interest for a Judiciary
focused on the communist character of the official floated into superseding Supreme Court judges
in 1973 and the float later finished in sacred autocracy in 1975 Accordingly, in 1981, with the
second in order in the judicial progressive system focusing on his own boss, the Judiciarys power
was practically traded off by the Supreme Court itself surrendering that the executive could overrule
the Chief Justice for "apt" reasons. In 1993, the Supreme Court restored Judiciary's supremacy.

Later in 1998, noting a Presidential Reference on Judicial appointments, the Supreme Court
founded the collegium comprising of the Chief Justice and four senior most judges to settle on
appointments and transfers of judges. Furthermore, that procedure is on now. It is not clear whether
the new National Judicial Appointments Commission, which needs endorsement considerably the
States to ratify law, will appear or not. Be that as it may, whether the Judiciary had driven the
appointment procedure or the executive, the acknowledged standard was constantly "secret
soundings" inside of a little gathering in the executive and Judiciary. This prompted lobbying and
has ruined the appointments process. It needn't bother with a seer to say that straightforwardness in
judicial appointments is critical to judicial freedom. Secrecy and straightforwardness can never go
together. Secrecy can smother the genuine truths around a wrong judge and sail him to the most
astounding Judiciary. Similarly it can smother reality about the right judge and obstruct his rise. The
case of Justice PD. Dinakaran33, three years ago has shown how secrecy in appointments can
create two totally inverse results.

To further set the Court backward in transparency, the Central government in March, decided
against bringing appointments to the higher judiciary under the RTI Acts purview.

The new revised draft Memorandum of Procedure (MoP) to guide appointments to the Supreme
Court and the high courts submitted by the government mentions the above, which is a major
setback to transparency in appointments.
33
S Gurumurthy, Judicial Transparency: Dinakaran's case V. Manjunath's, The Indian Express, 19th October 2014,
http://www.newindianexpress.com/columns/s_gurumurthy/Judicial-Transparency-Dinakarans-case-Vs-
Manjunaths/2014/10/19/article2484300.ece

19
Asked whether the draft MoP provides for bringing judicial appointments under the ambit of the
Right to Information Act, a long-standing demand from jurists and others, Union Law Minister D V
Sadananda Gowda replied in the negative. When pointed out that Section 8 of the RTI Act, which
deals with exemptions to the Act, doesnt exclude judicial appointments from the purview, the
minister said, Transparency can be attained without the RTI Act also.34

On April 06 2016, The Telegraph35 reported two Supreme Court Judges stating that the Supreme
Court will quash the centres new attempt to bring transparency into appointments. They said that
the governments latest suggestions are as damaging for judicial independence as the law set aside
last October.

34
NJAC Row: Appointment of top judges to be kept out of RTI purview, Legal Desire,March 9, 2016,
www.legaldesire.com/njac-row-appointment-of-top-judges-to-be-kept-out-of-rti-
purview/+&cd=1&hl=en&ct=clnk&gl=in
35
R. Balaji, Apex court to resist Centre's heavy Hand, The Telegraph, April 6, 2016
http://www.telegraphindia.com/1160407/jsp/frontpage/story_78811.jsp

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 THE COLLEGIUM:- THE PROCESS

The Collegium consists of the Chief Justice of India and four senior most judges of the Supreme
Court render exhortation to the President (i.e. to the administration)36. In settling on a choice as to
whom that collegium ought to suggest, it considers the perspective that are inspired by the Chief
Justice of India from the senior most Judge of the Supreme Court who originates from the same
High Court as the individual proposed to be prescribed. It likewise considers the perspectives of
different Judges of the Supreme Court or the Chief Justices or Judges of the High Court or, in fact,
individuals from the Bar who might likewise have been solicited by the Chief Justice from India or
for his sake. The foremost goal of the collegium is to guarantee that the best accessible ability is
conveyed to the Supreme Court seat.

The Chief Justice of India and the senior most Judges, by reason of their long residencies on the
Supreme Court, are best fitted to accomplish this target. They can evaluate the near worth of
conceivable deputies by reason of the way that their judgments would have been the topic of
petitions for extraordinary leave to claim and requests. Indeed, even where the individual under
thought is an individual from the Bar, he would have every now and again showed up before them.
In surveying similar worth as foretasted, the collegium would have the advantage of the inputs gave
by those whose perspectives have been looked for.

The qualification, in this manner, is between the Judges of the Supreme Court who choose,
alongside the Chief Justice of India, who ought to be prescribed for appointment to the Supreme
Court and the judges of the Supreme Court and other people who are gotten some information about
the suitability of a conceivable chosen one for such appointment. The perspective of the senior most
judge (in the event that he is not the part of the collegium) who hail from the High court where the
individual to be prescribed as judge to Supreme Court, is working as judge, must be acquired in
composing. The collegium must consider the accompanying variables in prescribing the judges for
the appointment:

36
See Prianka Rao, Rethinking judicial appointments: Collegium vs. Commission, the PRS blog, October 16th, 2015,
http://www.prsindia.org/theprsblog/?p=3591

21
1. Merit should be the predominant consideration. On what basis the merit will be judged? Earlier
judgments given by the judge, respect he commands in the legal fraternity, his legal qualifications,
and any such considerations.

2. Not only that, Cogent and good reasons should be recorded for recommending a person of
outstanding merit regardless of his seniority.

3. "For recommending one of several persons of more or less equal degree of merit, the factor of the
High Courts not represented on the Supreme Court, may be considered."

4. And any such factors may deem necessary.

If the government refuses to appoint the person recommended by Supreme Court, the materials and
information conveyed by government must be placed before the original collegium or the
reconstituted one. If the collegium accepts the opinion of executive, then CJI, in his discretion,
informs the person earlier recommended for his non appointment. The names recommended by
executive will then be final for appointment. In case collegium refuses to reconsider the request and
unanimously reiterate that the appointment of recommended candidates must be made, then,
government (President) has no choice but to appoint them.

THE DRAWBACKS OF THE COLLEGIUM

In endorsing the appointment to judges of the Supreme Court and the High Courts by the collegium,
the Supreme Court did not understand the weight it was forcing on the collegium of selecting judges
for the Supreme Court and High Courts and transferring them starting with one High Court then
onto the next. At any given time there are a few opening in the Supreme Court, and 200 in the 22
High Courts and the transfer of various judges to be made. A managerial errand of this extent
should fundamentally reduce the judges of the collegium from their primary legal work of hearing
and choosing cases. The collegium neither has a secretariat to shoulder this weight nor an
Intelligence bureau to make proper inquiry of the ability, character and uprightness of a proposed

22
deputy. The outcome is the proposition for appointment of a judge like P.D. Dinakaran37, who has
been under the scanner, while a Judge like A.P. Shah, who is extremely worthy is neglected.

EFFORTS MADE TO CHANGE THE COLLEGUIM

Recommendatory Body Suggested composition

National Judicial Appointments Judiciary: Chief Justice of India (Chairperson,

Commission(2015)38 ex officio)

Two other senior judges of the Supreme Court

next to the Chief Justice of India - ex officio

The Union Minister of Law and Justice, ex-

officio

Eminent persons:

These (two) eminent persons would have been

nominated by a committee consisting of the
Chief Justice of India, Prime Minister of India,
and Leader of Opposition in the Lok Sabha (or
where there is no such Leader of Opposition,
then, the Leader of single largest Opposition
Party in Lok Sabha), provided that of the two
eminent persons, one person would be from the
Scheduled Castes or Scheduled Tribes or OBC
or minority communities or a woman.

2nd Administrative Reforms Commission Judiciary : CJI; [For HC judges: Chief Justice

37
SeeRakesh BhatnagarFrom Tenant To Landlord, The Rise Of PdDinakaran, DNA India, Tue, 15 Dec 2009,
http://www.dnaindia.com/india/report-from-tenant-to-landlord-the-rise-of-pd-dinakaran-1323823
38
The National Judicial Appointments Commission Act, 2014

23
(2007)39 of the relevant High Court of that state]

Executive : Vice-President (Chairperson), PM,

Law Minister, [For HC judges: Includes CM of
the state]

Legislature: Speaker of Lok Sabha, Leaders of

Opposition from both Houses of Parliament.

Other: No representative.

National Advisory Council (2005)40 Judiciary: CJI; [For HC judges: Chief Justice
of the relevant High Court of that state]

Executive: Vice-President (Chairman), PM (or

nominee), Law Minister, [For HC judges:
Includes CM of the state]

Legislature: Speaker of Lok Sabha, Leader of

Opposition from both Houses of Parliament.

Other: No representative.

NCRWC (2002)41 Judiciary :CJI (Chairman), two senior most

SC judges

Executive: Union Law Minister

Legislature: No representative

Other: one eminent person

39
See generally,Fourth Report of the 2nd Administrative Reforms Commission (ARC), Ethics in Governance, 2007;
40
See generally,A National Judicial Commission-Report for discussion in the National Advisory Council, 2005
41
See generally,Report of the National Commission to Review the Working of the Constitution (NCRWC), 2002

24
Law Commission (1987)42 Judiciary : CJI (Chairman), three senior most
SC judges, immediate predecessor of the CJI,
three senior most CJs of HCs, [For HC judges:
Chief Justice of the relevant High Court of that
state]

Executive: Law Minister, Attorney General of

India, [For HC judges: Includes CM of the
state]

Legislature: No representative

Other: One Law academic

42
See generally,121st Report of the Law Commission, 1987

25
 CHAPTER V

CONCLUSION AND RECOMENDATIONS

Judiciary is looked upon by the basic individuals of the nation as their friend in need, the overseer
of basic rights, as rescuer of their trusts and yearnings. Dissimilar to the next two organs,
individuals expect a great deal from the Judiciary. Hence, the Judiciary is required to stay
autonomous and perform its assignment in a free and reasonable way. Judiciary, being one organ of
the state is as much responsible to the general population of this nation and courts being the
foundations through which the Judiciary is empowered to react and change the grievances of the
nationals and the general population, and judges being persons through whom courts function,
courts and judges can't remain protected from popular sentiment nor can dispose of open needs and
requests.

This is obvious from the dissident methodology of the Court in the late years through the effective
device of Public Interest Litigation, routinely made law, expanding and guaranteeing the
straightforwardness and responsibility of official bodies and so on.

Subsequently, the appointment of judges ought to be reasonable and straightforward, yet sadly that
is not true. The appointment is made by the body known as Collegium, a result of the Judiciary
itself which is shrouded in nature. Its behavior in the matter of determination and appointment of
judges and its cryptic nature has drawn a great deal of fire from all segments of the general public
and all the more so from the legal crew itself. The safeguard of collegiums, through the thin
contentions of the matter being private and may not be favorable for the best possible working and
adequacy of the legal framework in the nation, is not taken acknowledged/regarded by the
individuals from people in general and is tossed.

The legal/specialized barriers brought in help by the collegiums to decline to reveal data about the
way of appointment of judges, has come in for extremely grave feedback and maybe rightly so. It is
asserted that to keep up a decent picture and the notoriety of the foundation, it is essential not
uncovering data prompting the recommendation and appointment of judges in the predominant
courts. In any case, such a contention has almost no ground in this time of accountability.

26
In no democratic nation the appointments of judges has been left solely to the judiciary. The
disavowal of judicial audit an essential element highlights the secrecy in such appointments. It was
with a perspective to guarantee that the best items turn into the judges. Yet, history has another
story to tell. It is a bit much that the best Judicial are guaranteed if judges choose them. Master
Halsbury's appointment to the High Court had been dubious as in the deputies were men of almost
no realizing whose past profession in broad daylight life had been to a great extent in the
administration of the Conservative party or somewhere else, or else relations of his own. In this
way, Ambedkar's perspective in the Constituent Assembly on Judge's appointment was right.

What accordingly should be done is to strike a right harmony between the official and Judiciary in
the appointment of judges. The author's perspective discovers support in the 'The National
Commission to Review the Working of the Constitution', which was headed by previous Chief
Justice of India MN Venkatachalaiah43, proclaimed in 2002 for a more participatory mode which
would guarantee powerful interest of both the executive and the Judiciary. It noticed that on a plain
perusing of Article 124 of the Constitution, the force of appointment of judges vests in the President
and the President is relied upon to perform this capacity "after" discussion and not "in" conference
with the Chief Justice of India.

What is required is a National Judicial Commission. Its synthesis would be ideally the one that was
specified by the Law Commission in 1987. Its appointment is intelligent of both judicial and
executive. The Law Minister is equipped for mirroring the perspective of the Executive as it is after
all the Ministry of Law which advances the suggestion to the Cabinet and to the President.
Advocate General will have the capacity to mirror the perspectives of the Bar and considering his
years of practice in the Supreme Court he is better prepared to realize what sort of value is required
for a Supreme Court judge44. In perspective of the limitless size of our Judiciary, there can be two
Judicial Commissions-one for the Supreme Court and other for the State.

43
T.R. Andhyarujinan Appointment of Judges by Collegium of Judges' The Hindu 18 Decemeber 2009,
http://www.thehindu.com/opinion/op-ed/appointment-of-judges-by-collegium-of-judges/article66672.ece
44
Dr. ShyamlhaPappu Judicial Reform: Appointment and Transfer of Judges' Halsbury Law Review

27
This may not be the best framework accessible but rather it will be straightforward than a collegium
which works in secrecy. Straightforwardness in broad daylight bodies is need of great importance
and appointment of judges, who go about as gatekeepers of our Constitution ought to be
straightforward.

28
 BIBLIOGRAPHY

PRIMARY SOURCES-
1. The Constitution of India, 1950
2. The National Judicial Appointments Commission Act, 2014
SECONDARY SOURCES-
BOOKS

1) Saunders, Lewis & Thornhill, 2009, p.108

2) Alexander Wendt, Anarchy Is What States Make of It: The Social Construction of Power
Politics, International Organization 46-2 (1992), pp. 403-407

3) Wilson, Deductive Approach, 2010, p.7

4) CR Kothari, Research Methodology: Methods and Techniques, New age international

Publishers, 2004, p 27
5) Mukherjee et all, Democracy, Electoral Systems, and Judicial Empowerment in Developing
Countries, 2014, p 236

ARTICLES / JOURNALS
1) The Hindu 2009
2) The Indian express 2014
3) Fourth Report of the 2nd Administrative Reforms Commission (ARC), Ethics in Governance,
2007;
4) Report of the National Commission to Review the Working of the Constitution (NCRWC),
2002
5) A National Judicial Commission-Report for discussion in the National Advisory Council, 2005
6) Judicial Reform: Appointment and Transfer of Judges' Halsbury Law Review
7) Report of the Law Commission, 1987

29
 WEBLIOGRAPHY

http://www.thehindu.com/news/national/the-validity-of-the-collegium-
system/article6148870.ece
https://indconlawphil.wordpress.com/2015/07/16/debating-the-njac-the-second-judges-case-
judicial-appointments-and-the-basic-structure-ii/
http://mylibertatem.com/neo-collegium-the-legacy-of-fourth-judges-case/

http://onelawstreet.com/2015/04/notified-constitution-ninety-ninth-amendment-act-2014-
and-national-judicial-appointments-commission-act-2014/

http://www.governancenow.com/news/regular-story/rti-ten-years-later-how-it-changed-
subhash-agrawals-life#sthash.4zChZUc4.dpuf

http://www.newindianexpress.com/columns/s_gurumurthy/Judicial-Transparency-
Dinakarans-case-Vs-Manjunaths/2014/10/19/article2484300.ece

www.legaldesire.com/njac-row-appointment-of-top-judges-to-be-kept-out-of-rti-
purview/+&cd=1&hl=en&ct=clnk&gl=in

http://www.telegraphindia.com/1160407/jsp/frontpage/story_78811.jsp
http://www.prsindia.org/theprsblog/?p=3591
http://www.dnaindia.com/india/report-from-tenant-to-landlord-the-rise-of-pd-dinakaran-
1323823
http://www.thehindu.com/opinion/op-ed/appointment-of-judges-by-collegium-of-
judges/article66672.ece

30