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TRANSCRIPT
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Abstract“Justice can become ‘fearless and free only if institutional immunity and autonomy
are guaranteed’.”The importance of judiciary in a democratic setup is unparalleled. The judiciary plays
an important role of interpreting and applying the law and adjudicating upon
controversies. It is the function of the courts to maintain rule of law in the country.
Judiciary is a watching tower above all the other limbs of the state. In a country with a
written constitution, courts have to safeguard the supremacy of the Constitution by
interpreting and applying its provisions.
Having regard to the importance and significance attached to the function performed
by the judiciary, the Constitution has consciously provided for separation of judiciary
from the executive. The separation of powers between these two organs of the
government has to be observed with respect to judicial appointments, transfers, and
retirement. The separation between the two organs of the government is insisted so
that independence of the judiciary can be maintained.
The appointment of judges to the higher judiciary in our country, that is, the upreme
Court and the High Courts of the states has become a contentious issue, as there is a
constant tug of war between the executive and the judiciary. The issue attracts
attention as the service rendered by Judges demands the highest !ualities of learning,
training and character. Judges are expected to present a continuous aspect of dignity
and conduct.
"uch of the conflict has stemmed from the need to preserve judicial independence.
The term has meant different things to different people over time# to several
members of the Constituent $ssembly, it was a principle to allow judges to adjudicate
free from extraneous considerations, to a majority of judges of the upreme Court
over time, a re!uirement of the rule of law enshrined in the basic structure of the
Constitution and to several popularly elected governments, a principle which had to
be carefully bypassed, while appointing sympathetic judges to the higher judiciary.
Today, these differences have been put in sharp relief in the context of the operation
of the upreme Court collegium as the focal body for judicial appointments, with
judicial independence being used both by judges to justify its perpetuation as well as
by the political classes and sections of the civil society activists to explain its
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purported failures. This article will shed light on the process of judicial appointments
in India and the various momentous changes the appointment procedure has
undergone since independence, while discussing the implications of the passage of the
%%th Constitutional $mendment $ct, &'() and the *ational Judicial $ppointments
Commission $ct, &'().
This paper aims to focus on the constitutional framewor+ for the appointment of
judges in high court and upreme Court. $s it is +nown that the constitutional model
for appointment consists of a consultative process- between the xecutive and
Judiciary and after enforcement of the Constitution this practice has been followed
with some controversial episodes for more than four decades. /ut the scenario has
been changed in (%%0 when the upreme Court in Second Judges Case done away
with the existing consultative process and evolved a new system for appointment of
judges for higher Judiciary, namely 1Collegium1 system. In this system a panel of
Chief Justice of India along with two senior most Judges of the upreme Court 2in
Third Judges Case this number was increased from two to four senior most judges3
recommends the appointment of a judge. /ut the recent episodes revealed the
incompetency and irregularity of the collegium system. This paper will discuss the
constitutionality of collegium system by scrutini4ing all three Judges Cases and
recent developments, which !uestion the trustworthiness of present appointment
model.
5eywords67 Independence Judiciary, Second Judges Case, xecutive, Second Judges
Case %%th $mendment. *J$C
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IntroductionThe appointment of judges to the upreme Court of India and the High Courts has
over the years been a subject of intense conflict between the judiciary and the
executive. "uch of the conflict has stemmed from the need to preserve judicial
independence, a term often used but little explicated in India-s constitutional
literature. Judicial independence has meant different things to different people over
time# to several members of the Constituent $ssembly, it was a principle to allow
judges to adjudicate free from extraneous considerations, to a majority of judges of
the upreme Court over time, a re!uirement of the rule of law enshrined in the basic
structure of the Constitution and to several popularly elected governments, a principle
which had to be carefully bypassed, while appointing sympathetic judges to the higher
judiciary. Today, these differences have been put in sharp relief in the context of the
continued operation of the upreme Court collegium as the focal body for judicial
appointments, with judicial independence being used both by judges to justify its
perpetuation as well as by the political classes and sections of the civil society
activists to explain its purported failures.
*either does this article analyse each of the senses in which judges, politicians and
academics have used the term in the last sixty years nor does it delve into a detailed
legal analysis of the seminal cases relating to judicial appointments decided by the
upreme Court. Instead, it is concerned with a conceptual en!uiry into judicial
independence with a view to outlining its precise relevance to the process of judicial
appointments in India. To this end, this article is divided into three 8arts6 8art $
provides a brief narrative of judicial appointments in India to set the context for the
article9 8art / proposes a conceptual understanding of judicial independence, both on
the basis of a theoretical en!uiry as well as by analysing its role in a formal separation
of powers framewor+ analogous to India9 8art C uses this understanding to assess
whether the ways in which judicial independence has been used in India, specifically
in justifying the current collegium method of appointment are conceptually well7
founded. Through this three7part analysis, it is hoped that a certain degree of
conceptual clarity regarding the role of judicial independence in the context of judicial
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appointments will emerge, thereby providing both an argument as well as a theoretical
foundation for reform of the current appointments process. The narrative of judicial
appointments in India is rich and varied in characters and issues. Judges of diverse
ideologies and upbringing, :aw "inisters with varying degrees of inclination to
interfere in the judicial process, 8rime "inisters both non7interventionist as well as
authoritative, controversies that have riven the nation, judicial decisions that have
united it and continuing attempts at finding the ideal and hitherto elusive system of
appointment which will secure the independence and high !uality of the judiciary are
some of its constituent features. To provide a coherent account of this narrative,
discern the +ey issues that have arisen and set the context for the article, this part will
briefly discuss three crucial phases relating to judicial appointments6 8re7
constitutional discussions 2(%);7(%
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Historical Backdrop
Government of India ActIf we trace the history of appointment process before independence we can see that
the procedure for appointment of judges under the =overnment of India $ct, (%(% and
=overnment of India $ct, (%0< was in the absolute discretion of the Crown and their
tenure was governed by pleasure doctrine-.(
Constituent Assembly
The Constituent $ssembly held vigorous debates as regards the issue of judicial
appointments. Judicial independence was seen as a necessary re!uirement for the
judiciary to adjudicate impartially, insulated from political interferences.
$ccording to >r. $mbed+ar, there were two alternative modes of appointing Judges
which were before the >rafting Committee. The first was the appointment of Judges
in the ?nited 5ingdom where the executive had an absolute power to appoint all the
Judges of the High Court of Justice, and :ords of $ppeal in @rdinary in the House of
:ords. In the ?nited tates, the 8resident had power to appoint Aederal Judges withthe advice and consent of the enate. This method curtailed the absolute power of the
8resident as the Chief xecutive to appoint Judges, by giving the enate a veto.
/etween the absolute power of the executive in the ?nited 5ingdom, and the
8resident-s power in the ?nited tates, hedged in by the veto of a legislative body, the
>rafting Committee steered a middle course.
Aurther, >r. $mbed+ar stated that the proposed appointment does not ma+e the
8resident the supreme and the absolute authority in the matter of ma+ingappointments. It does not also import the influence of the :egislature.)
1 Section 101 and 10 of !o"ernment of #ndia $ct, 1%1% and Section 00 and 0 of the !o"ernment
of #ndia $ct, 1%&' (ro"ided for the (rocedure of a((ointment of )udges of higher )udiciary before the
(resent Constitutional (ro"isions in this regard. The doctrine of (leasure o*es its origin to common
la*. The rule in +ngland *as that a ci"il ser"ant can hold his office during the (leasure of the cro*n
and the ser"ice *ill be terminated any time the cro*n *ishes the same. Though this Common a*
doctrine is ado(ted by our Constitution in article &10 but *ith some restrictions and it is not a((licableto the tenure of high court and Su(reme Court )udges.
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In this way mode of appointment proposed by the members of the Constituent
$ssembly for appointment of judges were not accepted intact and a uni!ue form of
appointment system was adopted by the Constituent $ssembly.
Appointment Under Indian Constitution$rticle (&)2&3 and &(B2(3 provide procedure for appointment of judges in higher
judiciary. $rticle (&)2&3 reads inter alia thus6
very Judge of the upreme Court shall be appointed by the 8resident by warrant
under his hand and seal after consultation *ith such of the Judges of the Su(reme
Court and of the high courts in the states as the -resident may deem necessary for the
(ur(ose and shall hold office until he attains the age of sixty7five years6
-ro"ided that in the case of a((ointment of a Judge other than the Chief Justice, the
Chief Justice of #ndia shall al*ays be consulted ). 2emphasis added3
$rticle &(B2(3 provides that e"ery Judge of a high court shall be a((ointed by the
-resident by *arrant under his hand and seal after consultation *ith the Chief
Justice of #ndia, the !o"ernor of the State, and, in the case of a((ointment 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 &&), and in any
other case, until he attains the age of sixty7two years