THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA,

U.S.A AND AUSTRALIA- A COMPARATIVE STUDY

SUBJECT: - COMPARATIVE CONSTITUTIONAL LAW AND

GOVERNANCE

SUBMITTED TO: Parikshet Sirohi

Assistant Professor

SUBMITTED BY: Himanshu Malik

Roll No. 210616110042
LL.M. (Ist Semester)
 ACKNOWLEDGEMENTS

It is indeed a proud privilege to express my deep sense of gratitude and indebtedness to my

respected teacher and guide Prof. Parikshit Sirohi, for his valuable guidance, scholarly
inspiration, which he has extended to me for the successful completion of this endeavour.

I sincerely acknowledge the help rendered by the Librarian and Staff of the Faculty of Law,
Delhi University whose cordial relations helped me for successful completion of project.

Himanshu Malik
LL.M (Ist Semester),
Roll No.
Faculty of Law, Delhi University
 TABLE OF CONTENTS

Page(s)

1. INTRODUCTION

1.1. Research Methodology

1.1.1 Research Objective

1.1.2 Hypothesis/Research Questions

1.1.3 Methodology and Sources of data used in Research work

1.1.4 Research Scheme

2. HISTORICAL BACKGROUND AS TO THE PROCESS OF APPOINTMENT

OF JUDGES IN INDIA, U.S.A AND AUSTRALIA

2.1 Constituent Assembly Debates

2.2 Past proposals for Reforms in India-since 1945

2.3 Position prior to Constitution in United States of America

2.4 Position in Australia

3. CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATIONS

ON THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA, U.S.A AND

AUSTRALIA

3.1 Constitutional Provisions and Process of Appointment in India

3.2 Judicial Interpretations

3.3 Constitutional Provisions and Process of Appointment in U.S.A

3.4 Constitutional Provisions and Process of Appointment in Australia

3.5 Judicial Interpretations

4. COMPARATIVE ANALYSIS OF THE PROCESS OF APPOINTMENT OF JUDGES
IN INDIA, U.S.A AND AUSTRALIA

5. CONCLUSIONS AND SUGGESTIONS

Table of Cases

 Supreme Court Advocates on Record Association v. Union of India

 S. P. Gupta v. Union of India
 Subhas Sharma v. Union of India
 Samsher Singh v State of Punjab
 Union of India v Sankalchand Himatlal Sheth
 Re Presidential Reference case
 Marbury v. Madison
 Morrison v. Olson
 Mistretta v. United States
 United States of America v. Fermin Hilario
 Jon E. Edmond v. United States

List of Abbreviations

 A.I.R - All India Reporter

 SC - Supreme Court
 v. - Versus
 SCC - Supreme Court Cases
 J. - Justice
 NJC - National Judicial Council
 SCR - Supreme Court Review
 OPD - Office of Policy Development
 FBI - Federal Bureau of Investigation
 ABA - American Bar Association
 U.S.C. - United States Cases

List of Constitutions

 Indian Constitution
 American Constitution
  Australian Constitution
1. INTRODUCTION

“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
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. UOI 2, Supreme

1
Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press,1921, pp. 129 and 135
2
AIR 1982 SC 149
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.

This project work makes the comparative analysis of the process and removal of judges with its
counterpart United States of America and Australia as both federal nations have certain common
features in their written constitution, independence of judiciary being the most important one.
The comparative analysis is made with an objective to analyse the existing system of process of
appointment of judges in both countries and to suggest more transparent and effective process for
appointment of judges in India in the light of the said comparative analysis which ensures just,
fair and efficient judicial process in the administration of justice

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,

1.1. RESEARCH METHODOLOGY:

1.1.1 Research Objective

This research work makes the Comparative Analysis of the Process of Appointment of Judges in
two federal countries with written constitution, namely, Australia, the United States and India.
The comparative study as to the process of appointment of judges in India with its counterpart
United Sates of America is initiated with a view to analyse the strengths and weaknesses in the
present system of appointment of judges in India and to suggest alternative system of
appointment of judges within the constitutional framework which would bring more
transparency and public confidence in the existing process of appointment of judges. It describes

3
(1993) 4 SCC 441; AIR (1994) SC 268
4
Special Reference No.1 of 1998, RE (1998) 7 SCC 739
the process of appointment of judges in both the countries with special emphasis on the recent
developments taking place on the issue of appointment of judges in India. The U.S.A and
Australia are selected for the comparative analysis because they have certain similarities with the
Indian Constitution, for example, they each posses a written, federal constitution with a
democratic setup that has been the subject of interpretation by an independent judiciary and more
importantly ‘independence of judiciary’ is recognised in both the countries as one of the
significant feature in their constitutions.

1.1.2 Hypothesis/Research Question

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. It is
known that the present position as to the process of appointment of judges in India is the
consequence of Judges Cases I, II and III, i.e., S.P.Gupta vs UOI reported in AIR 1982 SC 149,
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 and after the overruling of the
S.P.Gupta’s Case the law laid down in Second Judges Case is the law governing appointment of
judges in India which departs with the text of Article 124(2) and Article 217 of the Indian
Constitution and is criticized by saying that it has made the Supreme Court and High Court
totally undemocratic. Now, in view of the recent incidents of impeachment of Calcutta High
Court judge Soumitra Sen, cash being delivered to the "wrong" judge of the Punjab and Haryana
High Court and the pension funds withdrawal scam involving the Ghaziabad judiciary, the
question is whether the existing process of appointment of judges as established by the judicial
precedents is satisfactory or does it need a rethinking. 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.

1.1.3 Research Methodology

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. Delhi University and its e-
resources have played a crucial role in bringing out special material for the project paper.
Opinions of experts published on the web also contributed to a great extent for conducting
research in the subject.

2. HISTORICAL BACKGROUND OF THE CONSTUTUTIONS OF THE THREE

COUNTRIES

2.1 Opinion of the Constituent Assembly of India

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.

2.2 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

2.2.1 79th Report of the Law Commission of India: In the Seventy-ninth Report of the Law
Commission of India (on Delay and Arrears in High Courts and other Appellate Courts [1979]),
it was recommended that in the matter of appointment of Judges of the Supreme Court, the Chief
Justice of India should consult his three senior most colleagues and should, in the
communication incorporating his recommendation, specify the result of such consultation and
reproduce the views of each of his colleagues so consulted. It appears that this procedure was
followed between 1977 and 1979 but given up thereafter. Though the said recommendation
applies equally in the matter of appointment to the High Courts, there is no evidence to show
whether the said recommendation was ever followed and if so, for what period.

2.2.2 Bar Council’s 1979 Opinion: Reference may also be made to an opinion expressed by
the Bar Council of India in 1979 that of all the segments of the society, the members of the Bar
are pre-eminently suited to judge persons who should be appointed as Judges of the High Court
and Supreme Court and, therefore, any reform or modification in the model for selection and
appointment of Judges of the High Court and Supreme Court must provide for adequate
representation of the organized bar in the mechanism.

2.2.3 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

5
B.Shiva Rao: The Framing of India’s Constitution. Vol.2 at p. 590.
6
AIR 1982 SC 149
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.

2.2.4 Recommendations of Bar Council of India for Collegium: The Bar Council of India
organized a national seminar of lawyers at Ahmedabad on 17th October, 1981. It opined that the
role of executive in the matter of appointment to High Court and Supreme Court should only be
formal and minimal. The initiative in the matter of selection and appointment of Judges should
invariably rest with the Chief Justice of India. For appointment to the Supreme Court, it
recommended a collegium consisting of (1) the Chief Justice of India, (2) five senior Judges of
the Supreme Court, and (3) two representatives of the Bar representing the Bar Council of India
and the Supreme Court Bar Association. The recommendation of such collegium should be
binding on the President though it would be open him to ask for reconsideration of specific cases
on stated grounds. In the matter of appointment to the High Court, it was recommended, the
collegium should consist of the Chief Justice of the High Court and his two senior-most
colleagues and two leading advocates to be nominated by the Bar Association of the High Court
as its representatives.

2.2.15 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.” The Report 7
recommended that the Judicial Service Commission should be composed of eleven persons,
namely, the Chief Justice of India and three senior most Judges of the Supreme Court, the
immediate predecessor in office of the Chief Justice of India, three senior most Chief Justices of
the High Courts, Minister for Law and Justice, the Attorney General of India and an outstanding
law academic. The report further opined that it must be left to such Commission to devise its
own procedure for initiation of proposal for recommending individuals for appointment and that
no hard and fast rule can be laid down in that behalf. It was observed that recommendation of
such a Commission should be binding upon the President but it shall be open to the President to
refer the recommendation back to the Commission in any given case along with information in
his possession regarding the suitability of the candidate. If, however, after reconsideration, the
Commission reiterates its recommendation, the President shall be bound to make the
appointment. It was also recommended that the Chief Justice of the High Court, to which
appointment is proposed to be made, should be co-opted as a member of the Commission.
Besides the Chief Justice of the High Court, the Chief Minister of the State (wherein the High
Court is situated) was also recommended to be co-opted. (This was on the premise that
Governor is only a constitutional head who has to act upon the advice of the Chief Minister). It
is evident that the Law Commission had in mind the appointment to High Courts only. It does
not appear to have dealt with appointment to Supreme Court in this Report.

2.3 Position prior to Constitution in United States of America

Prior to the adoption of the Constitution, the United States was governed by the Articles
of Confederation. Under the Articles, almost all functions of the national government were
vested in a single-chamber legislature called Congress. There was no separation of executive and
legislative powers. The first proposal presented to the Constitutional Convention was the
Virginia Plan, which would have set up both a Supreme Court and inferior federal courts.
Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the
creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially
disturbed by the idea of lower federal courts. They argued that the state courts could hear all
7
121st Report of the Law Commission of India
cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to
protect national rights and provide uniform judgments throughout the country8.

The delegates gathered at the Constitutional Convention in Philadelphia in 1787

expressed widespread agreement that a national judiciary should be established. The present
Constitution of United States America was adopted at the Philadelphia Convention held on 17th
September 17879. It came into force on 4th March 1789, after it had been ratified by the minimum
required number of states. Later on the Judiciary Act of 1789, set up a judicial system composed
of a Supreme Court, consisting of a chief justice and five associate justices; three circuit courts,
each comprising two justices of the Supreme Court and a district judge; and 13 district courts,
each presided over by one district judge.

The U.S Constitution provides for the Presidential type of government in the U.S. All
executive powers are vested in the President. The appointment of Federal judges is an executive
power vested in the President of United States of America (President).

Supreme Court justices are appointed by the President with the Advice and consent of the
Senate and, like other federal judges, hold office during “good behaviour” 10. There is no specific
tenure for retirement of Justices under American Constitution.

2.4 Position in Australia

The new process for appointment of judicial officers was implemented by Australian
Government in early 2008.
The evolution of this new process was aim to ensure: To maintain the confidence of public by
making the procedure of appointment of judges transparent. Appointments to be based on merits.
The person to be qualified as a judge or magistrate if he has the qualities to be appointed as one.
It is the duty of Attorney General, country’s first law officer for recommending judicial
appointments to cabinet and the Governor-General. Before the process of appointment Attorney
General should consult with the courts and his department. Vacancies may result from a judge

8
Outline of the U.S legal system for more details http://usinfo.state.gov/products/pubs/legalotln/federal.htm
accessed on 21th April, 2023.
9
V. Bhagwan,(rev.) ‘World Constitution’, 6th revised ed. Sterling Publishers Private Ltd.
10
Article III of the American Constitution.
retiring or resigning. Appointment process for Federal Court, Family Court, and Federal
Magistrate Court of Australia:
1. In the first step vacancies are identified in the above-mentioned court.
2. In the second step advertisement is published related to vacancies in newspapers and
Attorney General’s website where the criteria for selection is mentioned.
3. Next through Attorney General’s office letter are sent to various heads of the courts,
tribunals and various other legal bodies seeking for nomination of names of candidates
suitable for the position.
4. The Advisory Panel is created by the Attorney General in front of whom the list of
nominated names is placed who can interview the candidates suitable for appointment.
Then the report is presented by Advisory Panel to Attorney General that would have
names of candidates highly suitable for the post. Attorney- General considers report and
writes to the Prime Minister seeking his and/or Cabinet approval.11
5. The Governor General then makes the appointment of the candidates selected once the
approval has been made by the Cabinet on the recommendation of Governor General
through the Federal Executive process.
Appointments to the High Courts and Head of Courts:12 The appointment procedure for
High Courts of Australia is slightly different from other federal courts as it acts as Apex
Court of Australia’s judicial system. Appointments to the positions of Chief Justice of the
Federal Court or Family Court and Chief Federal Magistrate are likely to come from the
serving judiciary and would therefore already be known to government

3. CONSTITUTIONAL PROVISIONS AND JUDICIAL

INTERPRETATIONS ON THE PROCESS OF APPOINTMENT OF
JUDGES IN INDIA, AUSTRALIA AND USA

3.1 Constitutional Provisions and process of appointment of judges in India

3.1.1. Appointment of Judges to the Supreme Court

11
Lenny Roth, Judicial Appointments, NSW Parliamentary Library, Paper no.3 (2012).

12
Id.
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. Ambedkar13

3.1.2 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 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

13
Constituent Assembly debates Vol.8 p.258
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.

3.1.3 Practice followed till 1981: A practice had developed over the last several decades
according to which the Chief Justice of India initiated the proposal, very often in consultation
with his senior colleagues and his recommendation was considered by the President (in the sense
explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the
position till 1981.

In SP Gupta’s case, which we will call the 1st judges case, for facility of reference, the
Supreme Court considered the question of transfer of a judge from one High Court to another
court, without ascertaining his consent and the non-confirmation of an ad-hoc judge, the issues
being crucial for the cardinal principle of ‘Independence of Judiciary’. 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 India14, 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 (paragraph 45). The correctness of the
opinion of the majority in S.P. Gupta’s case15, 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”. It was further clarified in paragraph 51 that “apart from the two questions
which we have indicated, all other aspects dealt with by us are intended to be final by our
present order”.

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. Noted jurist, Late H.M. Seervai, in his celebrated
Constitutional Law of India, has called the judgment “null and void” for not following the
mandatory provisions of Act 145 (4) & (5) which as per the dictum laid down by Sir Barnes
Peacock, CJ enjoins that “it is a fundamental principle essential to the due administration of
justice that every judicial act which is done by several judges ought to be completed in the
presence of whole of them. If after discussion and after deliberately weighing the arguments of
each other, the judges cannot agree, then several judgments ought to be delivered in the open
court in the presence of others”.

That the judgment was not so pronounced is evident from the lament of Justice M. M. Punchchi
in his dissenting judgment. The same is quoted from paragraph 90 of the 2nd Judges case. “This
nine judge bench sat from April 7, 1993 to hear this momentous matter, concluding its hearing
on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all
after July 12, 1993 on the reopening of the court, if not earlier, would sit together and hold some
meaningful and frank discussion on each and every topic, which has engaged our attention,
striving for a unanimous decision, in this historic matter concerning mainly the institution of the
Chief Justice of India, relatable to this court.
14
AIR 1991 SC 631
15
Ibid
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, Special Reference No. 1 of 1998, came to be made under
Article 143 of the Constitution. The President referred 9 questions, which are not being repeated
for the sake the brevity.

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 unanimously, in paragraph 44 of the reference.

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...”

Today, we are back to square one because there is a hue and cry that the consultative procedure
has become not only cumbersome, but well nigh impossible. The Chief Justice of a High Court
is, by the policy of the government, a judge from outside the state who has little information and
knowledge in regard the legal practitioners in the state. In many a state, seniormost judges
constituting the collegium are from outside, with the result that appointments suffer for want of
adequate information. It maybe noted that broadly there are two areas of enquiry. One is the area
of legal acumen of the candidate to adjudge his/her suitability and the other is antecedents. The
Chief Justice of India and other judges of the Supreme Court and High Court can only judge
legal acumen. They have no access to the antecedents of a candidate, for which the Executive is
the best judge.

3.2.1 The Controversy

While the method of selection (appointment by Government being a mere formality) to

subordinate judiciary has not evoked any controversy, the method of appointment to and more
particularly the actual manner in which appointments were made to the High Courts and the
Supreme Court has been a subject matter of good amount of controversy, whether before the
decision in S.P. Gupta or thereafter and even after the 1993 decision of the Supreme Court in
Supreme Court Advocates-on-Record Association. While the decision in the S.P. Gupta was
criticized for upsetting the existing situation by vesting the power of appointment in the
executive and by diminishing the importance of the Chief Justice of India and the judiciary, the
1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by the critics
of the 1993 decision that in a democracy, accountability is an important consideration and the
authority or authorities making such appointments should be accountable to the people. A
distinction is made between appointment and functioning. While in the matter of functioning,
the executive can have no say, it is said, the executive must be necessarily involved in the
process of appointment. The argument is that someone must be responsible for the appointment
made and since Chief Justice of India or his colleagues are not accountable to the people, the
concentration of power of appointment in them is undemocratic. The argument further is that
the executive is accountable to the Legislature, which in truth represents the will of the people –
the consumers of justice - and that involvement of Executive is the only way of infusing the
element of democracy and accountability in the process relating to the appointment of judges of
the High Courts and Supreme Court. The contrary argument in support of the existing method
(ordained by the decisions of the Supreme Court in 1993 and 1998 aforementioned) is that in
Indian conditions and culture, entrusting this power to, or involvement of the Executive in the
appointment process is bound to prove detrimental to the independence and integrity of the
judiciary, as the experience during the years 1973 to 1977 and again during the period 1982 to
1993 (period during which S.P. Gupta held the field) shows. The supersessions, arbitrary and
motivated transfer of Judges of High Court, the manner in which additional Judges in High
Courts were dealt with (either by extensions for short periods or by not confirming them), the
several attempts at muzzling the judiciary during the period 1973 to 1977 (including the
supersession of senor-most judges of the Supreme Court in the matter of appointment of Chief
Justice of India) and the manner in which several appointments were made during 1981 to 1993
are all said to furnish proof of the fact that in our present stage of development, the domination
or involvement of the executive in this process is not desirable. It is said that democratic culture
has not yet taken root in our country and that feudal tendencies are very much part of our thought
and action. The attempt to control every institution, personalized rule, refusal to see the merit of
diffusion of power of governance (a basic feature of democracy) are propensities which are not
conducive to an independent and efficient judiciary. If the vesting of the power of selection of
subordinate judiciary in the High Courts exclusively is not bad, how does the selection of Judges
of High Courts and the Supreme Court become bad – goes the argument. It is further pointed out
by the proponents of this point of view that today executive is the biggest litigant and the power
vested in the Supreme Court and the High Courts by Articles 32 and 226 respectively is intended
to act as a check upon the executive and that today the major portion of the work in every High
Court and the Supreme Court is under these provisions; if so vesting the power of appointment,
whether wholly or partially, in the executive is bound to prove prejudicial to this constitutional
perspective. The U.K. example, it is said, is not relevant to this country at the present stage of
development and in so far as U.S.A. is concerned, it cannot and ought not to be emulated in this
country, more particularly after the recent episode (the un-edifying manner in which the judiciary
in that country acted in the Bush-Gore election controversy). Incidentally, the American
experience reinforces the inadvisability of executive’s role in the matter of appointment.
However, under the Indian Constitution the said power of appointment of judges neither resides
exclusively in the Judiciary, as because the Indian Constitution has provided for the
“participatory and consultative” method of appointment process by way of consultation with the
judiciary giving primacy to neither of the wings. But the said balance as intended is not followed
in the present process of appointment of judges which is a matter of serious concern as the
guardian of the constitution is itself acting beyond what the constitution has expressly provided
thereby bringing the process of appointment of judges justiciable and subject to judicial review.

3.3 Constitutional Provisions and Process of Appointment in U.S.A

3.3.1 Background and the Structure of the Judicial System (Federal and State Courts)

The judicial system in the United States is known as dual court system, which means both state
and federal governments have their own set of courts. Thus, there are 51 separate sets of courts
in the United States, one for each state and one for the federal government. The project will
discuss the process of appointment of judges of federal courts only.
The appointment of a Supreme Court Justice is an event of major significance in American
politics. Each appointment is important because of the enormous judicial power the Supreme
Court exercises as the highest appellate court in the federal judiciary. Appointments are usually
infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all,
during a particular President’s years in office. Under the Constitution, Justices on the Supreme
Court receive lifetime appointments. Such job security in the government has been conferred
solely on judges and, by constitutional design, helps insure the Court’s independence from the
President and Congress. The procedure for appointing a Justice is provided for by the
Constitution in only a few words. The “Appointments Clause” 16 states that the President “shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the
Supreme Court.” The process of appointing Justices has undergone changes over two centuries,
but its most basic feature — the sharing of power between the President and Senate — has
remained unchanged: To receive lifetime appointment to the Court, a candidate must first be
nominated by the President and then confirmed by the Senate. Although not mentioned in the
Constitution, an important role is played midway in the process (after the President selects, but
before the Senate considers) by the Senate Judiciary Committee. On rare occasions, Presidents
also have made Court appointments without the Senate’s consent, when the Senate was in recess.
Such “recess appointments,” however, were temporary, with their terms expiring at the end of
the Senate’s next session. The last recess appointments to the Court, made in the 1950s, were
controversial because they bypassed the Senate and its “advice and consent” role. The
appointment of a Justice might or might not proceed smoothly. From the first appointments in
1789, the Senate has confirmed 122 out of 158 Court nominations. Of the 36 unsuccessful
nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of
committee or Senate opposition to the nominee or the President, were withdrawn by the
President or were postponed, tabled, or never voted on by the Senate. Over more than two
centuries, a recurring theme in the Supreme Court appointment process has been the assumed
need for excellence in a nominee. However, politics also has played an important role in
Supreme Court appointments. The political nature of the appointment process becomes
especially apparent when a President submits a nominee with controversial views, there are sharp
partisan or ideological differences between the President and the Senate, or the outcome of
important constitutional issues before the Court is seen to be at stake.

3.3.2. Methods of Appointment

16
Article II, Section 2, clause 2
Section 2, Article II, the United States Constitution states: "[The President] …shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme
Court, and all other Officers of the United States…”

Justices of the Supreme Court, judges of the Circuit Courts of Appeals and the District Courts
[i.e. included under "all other officers of the U.S." referred to in the Constitution] all are
appointed by the President of the United States with the advice and consent of the Senate. These
justices and judges are appointed for life, and they can only be removed through impeachment by
the Congress. There is no statutory qualification for judicial appointment to the Supreme Court
or the lower federal courts.

3.3.3 Process of Appointment of Judges of the Federal Courts

The process of appointment of Judges of the federal court is discussed briefly:-

1. Vacancy

The process of appointment of a federal judge starts from the occurrence of a judicial vacancy.
The vacancy of a judgeship may arise from death, resignation, and retirement of a judge. Also,
vacancies can arise from legislation creating new judicial position and impeachment by the
Congress.

2. Selection and Nomination of Candidates by the President

The President nominates candidates for justices and judges to the Senate after he receives
recommendations from the Department of Justice and his own White House staff.
Department of Justice
The Department of Justice, which is supervised and directed by the Attorney General, is
responsible for making recommendations to the President concerning appointments to federal
judicial positions. Within the Department, the Office of Policy Development (OPD) has primary
responsibility for the judicial selection process of all Article III judicial vacancies.
The American Bar Association
The American Bar Association interviews judges and lawyers in the candidate’s community
about the candidate’s qualifications, including temperament, and also interviews the candidate.

President
The papers sent by the Department of Justice to the President include:

1. A letter from the Attorney General to the President formally recommending the nomination;
2. A memorandum from the Deputy Attorney General to a "designated" White House Assistant
"touching on matters not in the Attorney General's formal letter" (typically who recommended
the candidate and what political clearances were obtained);
3. The candidate's resume or biographical sketch;
4. A summary of the FBI Report along with the complete report itself; and
5. All other file material on the candidate including the response to the personal data
questionnaire.
If the President approves the nomination, he signs it and sends it to the Senate. Following the
nomination, the Department of Justice submits the FBI Questionnaire, the results of the FBI
background investigation and the entire Senate Questionnaire to the Senate.

3. Confirmation by the Senate

The Senate acts in a unicameral capacity when it confirms federal judicial nominations. As the
Constitution provides, only the Senate's "Advice and Consent" are necessary for the
appointments of Judges of the Supreme Court and all other Officers of the United States. The
House of Representatives is not involved in the process of appointment of federal judges. Within
the Senate, the consideration of appointments to judicial positions is the responsibility of the
Committee on the Judiciary.

The Committee on the Judiciary

The Senate Committee on the Judiciary or the Judiciary Committee consists of 18 members.
Following the rule that majority party in the Senate controls a majority of committee seats,
voting results on the Committee are generally representative of the voting preference in the full
Senate.
Voting
After the confirmation hearing, Committee members will vote on the nomination. The quorum of
the Judiciary Committee is ten; while vote by proxy is allowed, proxies are not counted for
making a quorum. If a nomination gets a majority vote, it will go to the Full Senate. If the
Committee rejects a nomination with a majority vote, the nomination will be returned to the
President. In effect, the nomination dies. However, after rejecting a nominee, the Committee
may, if it chooses, vote to report the nomination to the floor - but it will be with an unfavourable
recommendation. When the Committee adjourns at the end of a session, all of the nominations
still pending in Committee stage will be returned to the President.

4. Appointment by the President

When the Senate gives its advice and consent, the President signs the judicial commission which
officially appoints the individual. Historically, six judicial nominees declined the appointments
despite the Senate's confirmation and the President's appointment, and the last declination
happened in 1882.

3.4 The Role of the Legislature in the Process of Appointment of Judges

In the U.S., the U.S. Congress is heavily involved throughout the process of appointment of
federal judges. This includes both selection of candidates and confirmation of nominations.

3.5 Summary of the process of Appointment of Judges in United States of America

1. Section 2, Article II, the United States Constitution states: "[The President] …shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme
Court, and all other Officers of the United States…” All federal judges are appointed by the
President of the United States with the advice and consent of the Senate.

2. The process of appointment of a federal judge starts from the occurrence of a judicial vacancy.
The Department of Justice with the White House staff recommend judicial nominations to the
President. If the President approves, the nomination is signed and sent to the Senate.
3. Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees
will be investigated, testified and the nomination voted in the Committee. As the majority party
in the Senate controls a majority of the committee seats, the voting results on the Committee are
generally representative of the voting preference in the full Senate.

4. Confirmation of judicial appointments requires a majority vote of the Senate. All nominations
must be acted on in a session or they die at the end of the session. If a nomination is not acted
upon, they must again be made to the Senate by the President. When Senate gives its advice and
consent, the President signs the judicial commission which officially appoints the individual.

5. The influence of Senators in the stage of selecting nominees lies in the Senators' ability to
recommend potential nominees. Senators will be asked to recommend potential nominees for a
district court vacancy in their home state. In the cases of the Supreme Court or circuit courts
nominees, the President may need to take Senators' recommendations into account for political
reasons.
3.6 Judicial Interpretation of Appointment of Judges in America- Its Turning Point

In the famous case of Marbury V. Madison17-

The case began on March 2, 1801, when an obscure Federalist, William Marbury, was
designated as a justice of the peace in the District of Columbia. Marbury and several others were
appointed to government posts created by Congress in the last days of John Adams's presidency,
but these last-minute appointments were never fully finalized. The disgruntled appointees filed
the suit directly in the Supreme Court under section 13 of the 1789 Judiciary Act, seeking a writ
of Mandamus to compel Madison to deliver his commission.

Question Raised was- Is Marbury entitled to his appointment?

Chief Justice John Marshall concluded that-
Yes, justice Marshall concluded that Marbury’s appointment was complete upon his
authenticated signing by the President.
17
5 U.S. 137 (1803); Constitutional Law book by Calvin R. Massey.
In another case of US Supreme Court Jon E. Edmond, v. United States18

The Court defined the term "inferior officer" as encompassing those "whose work is directed and
supervised at some level by others who were appointed by Presidential nomination with the
advice and consent of the Senate" 19. The Court did not overrule Morrison, however, but cited it
as precedent.

In Mistretta v. United States20, in this instance, Congress chose to place the appointing power
vis-à-vis interim United States Attorneys partially in the judiciary. If authorizing judges to make
such appointments is incongruous with the appointers' judicial duties or unduly interferes with
the proper functioning of the Executive Branch, any appointments so made would be null and
void. "While our Constitution mandates that 'each of the three general departments of
government must remain entirely free from the control or coercive influence, direct or indirect,
of either of the others,' the Framers did not require and indeed rejected the notion that the three
Branches must be entirely separate and distinct”21.

In another interesting case, United States of America v. Fermin Hilario22, Fermin Hilario moved
to dismiss an indictment brought against him, claiming that the protracted tenure of a court-
appointed interim United States Attorney contravened applicable federal statutes, violated the
Appointments Clause, offended the separation-of-powers principle and, in the end, rendered the
indictment a nullity.

a) Whether the appointment offends the separation-of powers principle?

The Court concluded “Should the stand-in remain so long in office that he became
indistinguishable from the latter, an argument could be made that his continued service required
nomination by the President and confirmation by the Senate” and that Gil's appointment and

18
520 U.S. 651, 659-60 (1997) for Details http://www.law.cornell.edu/supct/html/96-262.ZO.html accessed on 19
April 2023;
19
520 U.S. at p. 663
20
488 U.S. 361, 381-82 (1989)
21
Mistretta, 488 U.S. at 380
22
For more details www.ca1.uscourts.gov/pdf.opinions/00-1406-01A.pdf last accessed on 23.4.2023
continued service as interim United States Attorney for the District of Puerto Rico comply with
the Appointments Clause23, and the doctrine of separated powers. Consequently, the indictment
against Hilario was duly authorized. It should not have been dismissed.

4. Constitutional Provisions and Process of Appointment in Australia

Section 72 of the Australian Constitution provides that the Governor-General in Council must
appoint the judges of federal courts, the appointee being younger than 70 years of age. In
practice this is done on the advice of the federal Cabinet. The relevant legislation adds that an
appointee must have been a legal practitioner in Australia for not less than five years (see High
Court of Australia Act 1979 (the HC Act) section 7; Federal Court of Australia Act
1976 subsection 6(2); and Federal Circuit and Family Court of Australia Act 2021 subsections
11(2) and 111(2)).

As noted by Justice Kiefel and Professor Saunders:

In practice the Commonwealth Attorney-General considers who might be a suitable appointment.

The Attorney-General then writes to the Prime Minister (usually after asking the person whether
he or she would accept appointment), seeking the approval of the Prime Minister and the
Cabinet. If approved, the Attorney-General makes a recommendation to the Governor-General
who considers the appointment through the Federal Executive Council process. (p. 6).

For appointments to the High Court, under section 6 of the HC Act, the Commonwealth
Attorney-General is also required to consult with the Attorneys-General of the States.

As noted by the Australian Judicial Officers Association, the judicial appointments process in the
states and territories involves judges being appointed by the Governor, having been selected by
Cabinet on the advice of the Attorney-General. For example, in Queensland the Attorney-
General makes a recommendation for the appointment of a judge or magistrate to the Cabinet
and the Governor in Council, who by commission, may appoint a barrister or solicitor of the
Supreme Court of at least five years standing as a judge (Constitution of Queensland 2001,
section 59).

23
28 U.S.C. § 546(d),
Appointment process for Federal Court, Family Court, and Federal Magistrate Court of
Australia:
1. In the first step vacancies are identified in the above-mentioned court.
2. In the second step advertisement is published related to vacancies in newspapers and
Attorney General’s website where the criteria for selection is mentioned.
3. Next through Attorney General’s office letter are sent to various heads of the courts,
tribunals and various other legal bodies seeking for nomination of names of candidates
suitable for the position.
4. The Advisory Panel is created by the Attorney General in front of whom the list of
nominated names is placed who can interview the candidates suitable for appointment.
Then the report is presented by Advisory Panel to Attorney General that would have
names of candidates highly suitable for the post. Attorney- General considers report and
writes to the Prime Minister seeking his and/or Cabinet approval.24
5. The Governor General then makes the appointment of the candidates selected once the
approval has been made by the Cabinet on the recommendation of Governor General
through the Federal Executive process.
Appointments to the High Courts and Head of Courts:25 The appointment procedure for
High Courts of Australia is slightly different from other federal courts as it acts as Apex
Court of Australia’s judicial system. Appointments to the positions of Chief Justice of the
Federal Court or Family Court and Chief Federal Magistrate are likely to come from the
serving judiciary and would therefore already be known to government

Comparative Analysis of Appointment of Judges in India and Other

Jurisdictions

COMPARISON

The appointment of judges in both the countries has been granted as executive power of the
President by both the Constitutions. But in India the appointment is made with the ‘consultation
24
Lenny Roth, Judicial Appointments, NSW Parliamentary Library, Paper no.3 (2012).

25
Id.
with judiciary’, whereas in U.S the appointment is made with ‘parliamentary approval’. Both the
nation follows the ‘appointive system’ of judicial appointment where the appointments are made
by the executive government. At one time appointment of judges in U.S.A were used to be made
by the ‘elective method’ of appointment of judges, but during the latter part of the nineteenth
century, the general trend begin to move away from the elective system.

Now the Comparative analysis as to the process of appointment of judges between India and
U.S.A can be better made by comparing the two methods in which the appointive method of
appointment of judges is employed, i.e.the appointive method with ‘parliamentary approval’ and
appointive method in ‘consultation with judiciary’. These mechanism were followed in order to
reduce the exclusive executive power to appoint judges.Since, the process as to appointment of
judges has already been discussed in detail, this chapter would only focus on merits and demerits
of the methods of appointment of judges in India and U.S.A.

Parliamentary Approval (Method of appointment in U.S.A)

Under this mechanism the executive government initially selects the candidates for judicial
office, but makes formal appointments only when the selections are approved by parliament. For
example, in the United States the President nominates and ‘by and with the Advice and Consent
of the Senate’ appoints federal judges. Parliamentary approval provides a check on the power of
the executive and there is scope for public scrutiny of the appointment process. Nevertheless, this
system has some inherent defects. Firstly, parliament has nothing to do with the initial stages of
selecting candidates. Since the initial selection of candidates is a vital issue in appointing judges
and it is exclusively vested in the executive, this system may not be effective to control pre-
eminent political or other relevant considerations in selecting candidates for judicial office.
Rather it may foster an increasing tendency to introduce political bargaining. Secondly, although
the requirement of approval by parliament may impose some restrictions on the discretion of the
executive government, it may not be effective to change the basic form of ‘political infighting’.
Moreover, it may ‘result in the kind of coalition building behaviour common in other legislative
matters’. Thirdly, if the party in power commands a majority in parliament, political ‘patronage
may still be a strong factor’ in appointing judges. Therefore, though parliamentary approval has
some implications for checking exclusive executive power in appointing judges and making the
appointment process open to the public through parliament, it has serious drawbacks. The
parliamentary mechanism is transparent and open to public scrutiny, but if there is a majority in
Parliament, nothing can be done: even if the public does not approve of the appointment.

Consultation with Judiciary and Legal Profession (Method of appointment in India)

On the contrary India follows an appointive method of judicial appointment in consultation with
the judiciary. The constituent assembly completely rejected the role of legislatures in the
appointment of Judges. But the Indian Constitution is silent on the aspect of the primacy of
opinion of Chief Justice of India in the matter of appointment of judges and rather it provides the
balanced approach in the matter of appointment of judges giving primacy to neither of the wings
nor the executive nor the judiciary. In other words the constituent assembly had intended a
totally different model for appointment of Judges i.e. ‘co-operative and consensual’ consultative
process for the appointment of judges in India which is not followed in India presently for the
reasons unknown and the judicial interpretations had further confused the whole issue.

Generally, under this method of appointment executive government appoints the judges in
consultation with the senior judiciary and legal profession (i.e executive primacy followed till
1993 Judgment which nullified the role of executive in the appointment process). Senior
members of the judiciary and legal profession are consulted, and the consultations may be formal
or informal. Judges are in a position to assess the performance of lawyers who are to be
appointed to judicial office. Therefore, consultation with members of the higher judiciary is very
significant in appointing the best-qualified persons to judicial office. It is an important means to
strengthen the independence of the judiciary Consultation with members of the legal profession
is also very important. A body representing the legal profession may be able to assess the
character and ability of the lawyers to be appointed as judges. It can help to select suitable
persons for judicial office. Therefore, the consultation system has significant implications for the
quality of the judiciary and public confidence in it. However, it has a serious limitation, because
the efficacy of consultations depends mostly on the attitude of the executive government. It
could be that after consultation with the judiciary and legal profession the executive government
will ignore the opinion given by them. Thus the ultimate weight of the consultation system is
dependent on the executive. If the executive is reluctant to give due consideration to the advice
of the judiciary and legal profession, this system is useless. In fact, consultation should be an
effective consultation and in this regard the Indian system of consultation with the judiciary is
worth consideration.

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. The word
“collegium” is no where present in the constitution. It was first used by Bhagwati J. in the
majority judgement of S.P. Gupta vs. UOI (4:3).Again in the Presidential reference the
expression “collegium” and “collegium of judges” has been freely used. It is submitted that any
addition of words in the constitution would not be permissible under the interpretive jurisdiction
of the Supreme Court. The Supreme Court has to interpret the constitution as it is.

India is the only country in the World where judges are appointed by judges in the name of
independence of judiciary and basic structure of Constitution. The framers of the Constitution
decided not to give ultimate powers to the judges. However, from the year 1993, the trend
changed and judges started appointing judges by way of Collegium system which came into light
for its non-transparent process many a times. After the 4th Judge case the only choice left is the
Collegium System for the appointment process. The judges while making appointments should
always remember that an independent judiciary enjoying public confidence is the necessity of the
„Rule of Law.‟ Any conduct on the part of judge, which demonstrates a lack of integrity and
dignity, will undermine the trust reposed in the judiciary by the citizens. The conduct of the
judge should therefore, always be above reproach.

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.
 BIBLIOGRAPHY

BOOKS

 H.M.Seervai, “Constitutional Law of India”, Fourth ed. vol.iii, chapter xxv, p.2613,
Universal Law Publishing Co.Pvt.Ltd.
 A.G.Noorani, “Constitutional Questions and Citizen’s Rights”, 2006, Oxford Publication.
 Benzamin.N.Cardozo, “The Nature of Judicial Process”, Yale University Press., 1921, pp129
and 135.
 Dr. Ranbir Singh & Dr. A Laxshminath, “Constitutional Law”, LexisNexis Butterworths
Student Series.
 “The History, Philosophy and Structure of the American Constitution”, second edition,
LexisNexis Publications.
 Arvind .P.Dattar, “Commentary on the Constitution of India, 2nd Edition, 2007, vol-I,
Wadhwa and Nagpur Publication.
 Craig R.Ducet, Constitutional Interpretation, Eight Edition, Thomson and West Publications.

ARTICLES
 Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10.
 Judicial Oversight or Overreach: The Role of the Judiciary in Modern India.
 The Process of Appointment of Appointment of Judges in some foreign Countries: The
United States by Mr. Cheung Wai lam.
 Federal Judicial Appointments- Gavel to Gavel.
 The Appointing Power of the Executive by Alexander Hamilton Federalist No. 76.
 The Appointing Power Continued and Other Powers of the Executive Considered Federalist
No. 77.
 The Judiciary Department by Alexander Hamilton Federalist No. 78.

LAW COMMISSION AND COMMITTEE REPORTS

 14th Report of the Law Commission of India,1958

 79th Report of the Law Commission of India,1979

 80th Report of the Law Commission of India,1977

 121st Report of the Law Commission of India,1987

 214th Report of the Law Commission of India,2008