Indian Law Institute Journal of The Indian Law Institute

REVISITING THE APPOINTMENT OF JUDGES: WILL THE EXECUTIVE INITIATE A CHANGE?
Author(s): Nakul Dewan

Source: Journal of the Indian Law Institute, Vol. 47, No. 2 (April-June 2005), pp. 199-223
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951965
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199
REVISITING THE APPOINTMENT OF JUDGES:

WILL THE EXECUTIVE INITIATE A CHANGE?
Nakul Dew an*
I Introduction
IT IS a decade and two years since the judgment of nine-member bench

decision in Supreme Court Advocates on Record v. Union of India
The judgment, commonly referred to as the Second Judges ' case, is on
of the three judgments of the Supreme Court of India that deals with t
appointment of judges to the higher judiciary and is probably one tha
has drawn the most international attention. This judgment was nea
buried into oblivion in 2003, when the 98th Constitutional Amendmen
Bill, seeking to create a National Judicial Commission2 for selectin
judges to the higher judiciary was introduced in the Lower House
Parliament. As it happened, because of a politically influenced decision
the Lower House of Parliament was dissolved by the ruling party
prematurely and the Bill died a natural death.
The tussle between the executive and the judiciary in the matter of
selection of judges flows out of the 'separation of power' and the 'chec
and balance' principles that are embedded in the Constitution of Ind
The 98th Constitutional Amendment Bill was not the first proposal th
sought to amend the manner by which judges came to be selected to t
superior judiciary in India. Back in 1958, eight years after t
Constitution was adopted, the 14th Law Commission observed th
appointments were being madę on political, communal and region
considerations and not solely on merit and, therefore, recommended th
all appointments to the Supreme Court and the high courts be ma
with the concurrence of the Chief Justice of India. This proposal did n
see light. Nor did the subsequent proposal that was made in the 79
Report which suggested that the chief justice should consult his three
senior colleagues before recommending appointments.3 The 80th Repo
* Advocate, Supreme Court of India.

1. (1993) 4 SCC 441.
2. Reference to the National Judicial Commission shall hereinatter De oy tne
term 'the Commission'.
3. 79th Report of the Law Commission of India (on Delay and Arrears in High
Courts and other Appellate Courts [1979]), See, para 8.13., Consultation Paper on
Superior Judiciary, National Commission to Review the Working of the Constitution,
26.09.2001.
200 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 47 : 2
of the Law Commission4 also dealt with judicial appointm

envisaged the setting up of a commission comprising of the C
of India, the Law Minister and three other persons who have
been chief justice or judges of the Supreme Court5 . However
proposal also did not materialise, being dropped in view of
from most high courts. In 1981, the Bar Council of Indi
proposal for setting up a collegium for selecting judges c
chief justice, five senior judges of the Supreme Court and two
representatives from the bar. While recommendations until then had
largely concentrated on the constituents of the commission, the Bar
Council went a step further by proposing that the names forwarded by
the collegium would be binding on the President, who could only send
it back for reconsideration on limited grounds. This proposal thus
contemplated bypassing the executive in matters of judicial appointment
but, as previous proposals, it also never saw the light of the day. In
1987, the Law Commission again considered the question of judicial
appointments and suggested the setting up of a Judicial Service
Commission comprising of eleven persons, including %the Chief Justice
of India, 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, the Minister for Law and Justice, the
Attorney General for India and an outstanding law academic. The report
of the Law Commission stated that though the President would be bound
by the recommendation made by the Judicial Services Commission, it
would be open for the President to refer the recommendation back to
the commission. If, after reconsideration the Judicial Services
Commission reiterated the recommendation, the President would be
bound to make the appointment. In 1990, the 67th Constitutional
Amendment Bill was introduced in Parliament and it contemplated the
constitution of an appointing commission consisting of the chief justice
and his two senior most colleagues.6 The 67th amendment also sought
to substitute the word consultation ' with the word ' concurrence ' so as
to make the consent of the Chief Justice of India necessary before any
appointment was made. However, even this amendment was not carried
through and no legislative change could be brought about in the original
scheme formulated under article 124.
4. 80th Report of the Law Commission of India (on the Methods of Appointment
of Judges, [1979]). See, para 8.12., Consultation Paper on Superior Judiciary, National
Commission to Review the Working of the Constitution, 26.9.2001.
5. Judges' Appointment Commission.
6. The Constitutional (67th Amendment) Bill, 1990, introduced in the Lok babha
(lower house of Parliament) on 18.5.1990). The Bill sought amendment of articles
124, 217, 222, 231 of the Constitution and introduce article 307, providing for the
constitution of a National Judicial Commission.
2005] REVISITING THE APPOINTMENT OF JUDGES 201
Despite none of these proposals resulting in an amen

124, a change was brought about in the selection of jud
after the provisions were subjected to the rigours of jud
in three judgments of the Supreme Court commonly r
Judges' case,7 the Second Judges' case8 and the Thir
While the Judges case reiterated the dicta that the
merely a constitutional consultée, the Second Judges
manner of selecting judges to the Supreme Court despi
legislative amendment, by holding that concurrence of
was necessary for selecting judges. In the Second J
majority also created a judicial collegium comprising of
. and his two senior colleagues for selecting fresh appoi
subsequently enlarged by the court in the Third Judge
While it was surprising that the government did no
of the Second Judges ' case, when the Third Judges ' ca
a presidential reference in 1998, the government in
98th Constitutional Amendment Bill for creating
selecting judges for appointment. The government w
with the report and recommendations of the Nation
Review the Working of the Constitution (hereinaft
NCRWC) which suggested the creation of a commi
independent judicial appointments. The commission too
the constitution of the commission be on the lines sugg
Amendment Bill10 and comprise of the chief justice as
7. S. P. Gupta v. Union of India, (1981) Supp SCC 87.

8. Supreme Court Advocates on Record Association, supra n
9. Re: Special Reference No. I of 1998, (1998) 7 SCC 739.
10. Para 9, Consultation Paper on Superior Judiciary, Natio
Review the Working of the Constitution, 26.9.2001. In a dissen
B. P. Jeevan Reddy J dated 21.3.2003 (former judge of the Sup
a member of the commission), he pointed out that there was sha
the members of the commission on whether a NJC ought to b
the existing method ought to continue and at the time the decis
up an NJC, all the members were not present. The dissent not
reads: 4 So far as the procedure of appointment of judges to the
Supreme Court was concerned, there was a sharp division of
session/meeting. The first question put to vote was whether
change in the existing procedure. By a majority of six to four
no change is called for in the existing procedure. In this view
necessity of constituting a National Judicial Commission for th
its composition did not come up for consideration. It may be
session/meeting was attended by all the members and th
Commission. One should have thought that this decision was
draft Report prepared by the Editorial Committee was being fin
was re-opened again, even though all the members were not p
202 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol ,47:2
senior most colleagues from the bench, the law minister an

person nominated by the President/ Prime Minister. Th
that all decisions would be by the majority and binding on
However, this Bill too could not be passed.
The Supreme Court through its judgments in the Second
Judges ' cases has been una"ble to create a framework that
satisfaction of the judiciary and executive for selecting mer
while, at the same time, fitting into the nuances of a d
balancing the checks between the judiciary and the executi
It is worth noting in this context that the decision i
Judges' case was contrary to submissions advanced by
India.
II The Original Constitutional Scheme

for Selecting Judges
The reason why selection of judges to the higher judiciary sparks

debate and assumes significance is because in practice the real political-
judicial interaction takes place in the superior judiciary only. And it is
this body which is conferred with both the power and responsibility for
determining the constitutionality of governmental action. This makes it
imperative to ensure that judges of the superior judiciary are independent,
impartial uninfluenced by governmental pressures or ideologies and not
persoņs who would be susceptible to governmental pressures.
While the Constitution provides for the selection and appoinment of
judges at all levels of the judiciary, analysed here is only the
constitutional scheme for Supreme Court appointments.
to have been a change in the opinion of some members meanwhile on this subject.
With some members absent, the Commission now decided in its Sixteenth meeting
held from 25th February, 2002 to 1st March, 2002, that a National Judicial
Commission should be constituted with a particular composition. In my opinion,
there was no occasion or justification for re-opening an issue which was considered
and decided upon at a special session/meeting of the Commission convened specially
to consider this issue alongwith two other controversial issues. In view of the
change of opinion by some members and absence of some other members. I did not
call for a division and voting, yet, my view is that the very re-opening of the said
issue was not called for and not justified in the circumstances aforestated. In my
view, the existing procedure relating to the appointment of judges to the High
Courts and the Supreme Court should be allowed to work for some more years-it is
hardly nine years since it is in vogue before one can consider a change. There is no
material before the Commission waranting a change in the existing procedure'. See,
Subhash Kashyap, VI Constitution Making Since 1950 , 506-07.
Article 124 (2) of the Constitution states as under:

124. Establishment and Constitution of Supreme Cour
(2) Every judge of the Supreme Court shall be appoint
President by warrant under his hand and seal after co
with such of the judges of the Supreme Court and of
courts in the States as the President may deem necess
purpose and shall hold office until he attains the ag
five years;
Provided that in case of appointment of the judge other than the
chief justice, the Chief Justice of India shall always be
consulted.
The debate amongst the members of the Constituent Assembly on

the selection and appointment of judges largely stemmed around questions
associated with the retirement age of judges and determination of whether
judges ought to be permitted to undertake work in an 'office for profit'
after retirement.11 Questions related to the modicum of judicial
appointment and the role of the chief justice are only to be found in the
speeches of B. Poker Sahib and B. R. Ambedkar. Though these have
been well scripted, quoted and discussed in the Second Judges ' case, a
short deliberation here would assist in appreciating the issue in the
context of the overall picture. Poker Sahib wanted to move an amendment
that would make the role played by the chief justice in matters of
appointment as not merely 'consultative' but as requiring his
'concurrence'. He cited a precedent wherein recomendees of the chief
justices of the high courts, instead of being sent to the Premier, were
relegated to chief secretary and in some instances to the assistant secretary
for discussion. Poker Sahib wanted the President to, not only, consult
the chief justice but also seek his concurrence in matters of
appointment.12 However, this proposal was not approved by Ambedkar
and his view was, in fact, relied upon and cited by the counsel appearing
for the Union of India in the Second Judges ' case. The counsel drew
specific attention of the court to the following words of Ambedkar:13
With regard to the question of concurrence of the chief justice,
it seems to me that those who advocate that proposition seem to
rely implicitly both on the impartiality of the chief justice and
the soundness of his judgment. I personally feel no doubt that
the chief justice is a very eminent person. But after all, the
1 1. See, VÍII Constituent Assembly Debates , 229-63.

12. Id. at 233.
13. Id. at 258, See Supreme Court Advocates-on-Record Assti, Supra note 1 at
562.
chief justice is a man with all the failings, all the sentiment
all the prejudices which we as common people have; and I t
to allow the chief justice practically a veto upon the
appointments 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. I therefore, think that is also a dangerous
proposition.
Clearly, in the Constituent Assembly the role of the chief justice in
matters of appointment was deliberated upon and the requirement of his
concurrence was negated. It is interesting to note that during this
discussion in the Constituent Assembly, Ambedkar did not favour the
idea of giving the power to executive either. When examples of England
and United States of America where the prerogative for appointments
rests with the executive were cited, Ambedkar distinguished the political
scenario of those countries and cautioned that in the Indian scenario to
leave judicial appointments solely in the hands of the President of India
without any reservations or limitations would be dangerous.14 Thus, a
unique system of appointing judges was created where the executive
was bound by the constitutional obligation to mandatorily consult the
chief justice and optionally to consult such other judges before making
any appointment. On this understanding, article 124 was adopted and
through the years, in actual practice, the chief justice would consult
such senior judges wherever considered appropriate and forward a name
to the executive for being appointed. As precedent would show, the
name forwarded by the chief justice usually came to be accepted; this
manner of working was in tune with Ambedkar' s submission and as
most recommendations were accepted, it justified the chief justices'
consultative role. However, concurrence of the chief justice was debated
and expressly rejected.15
14. Id. at 258.

15. Tulzarpurkar J, in supra note 7 at 530, rejects this view and states: 'Secondly,
in my view, Mr. Pocker Saheb's rejected amendment has nothing to do with the
primacy question at all because it was concerned with the effort at complete exclusion
of the executive interference in the matter of appointment of the high court judges.
If the amendment had been accepted the result would have been that the appointmen
shall have been made with the initiation of the proposal by the chief justice of th
high court, the consultation with the state executive being retained because of the
financial aspect and information regarding antecedents, etc. and only upon the
concurrence of the Chief Justice of India, which, in other words, means the Chief
Justice of India would have had the power to veto any proposal. In my view
conferring a power of veto on the Chief Justice of India is entirely different from th
primacy being given to his views or advice over and above the views or advice of
the other consulting functionaries, as a limiting factor on the President's discretion.
III The Tinkering: An Overview of

the Third Judges9 Case
The word 'consultation' under articles 124 and 217 came in for
interpretation in the First Judges ' case which was related to the extensio
of the term of additional judges and appointment of high court judges.
Bhagwati J, on a plain reading of articles 124 and 217 observed that: 16
It is clear on a plain reading of these two articles that the Chief
Justice of India, the chief justice of the high court, and such
other judges of the high courts and of the Supreme Court as the
central government may deem it necessary to consult, are merely
constitutional functionaries having a consultative role and the
power of appointment resides solely and exclusively in the central
government. It is not an unfettered power in the sense that the
Central Government cannot act arbitrarily without consulting
the constitutional functionaries specified in the two articles but
it can act only after consulting them and the consultation must
be full and effective consultation.
Bhagwati J, was comparing the consultative process adopted for the

appointment of judges of the Supreme Court and high courts and stated
that the opinion of the Chief Justice of India did not enjoy primacy.17 In
his view, if primacy was accorded to the opinion of the Chief Justice of
India it would only mean that consultation meant concurrence but would
also enable the view of the Chief Justice of India to prevail over the
view of the chief justices of high courts and state governments and be
binding on the central government. According to Bhagwati J, such a
procedure had not been contemplated under the Constitution.
The mandate of a wholesome consultation, which by convention
carried great weight, was also the observation of Fazal Ali J who too
propounded the view that the Constitution provided a wholesome method
for appointment of judges by striking the right balance between the
judiciary and the executive.18 He also considered that giving the final
say to the chief justice would lead to absolutism.' Interestingly this part
of Fazal Ali J's, observation has not been considered in the Second
Dr. Ambedkar also understood the proposed amendment of Mr. Pocker Saheb in this
manner and pleaded for its rejection on the ground that it sought to confer a power
of veto on the Chief Justice of India which he thought was undesirable. The
rejection of the amendment, therefore, has no bearing whatsoever on the question of
primacy with which the court is concerned at the moment...'
16. Supra note 7 at 249.
17. See id. at 226-7.
18. Id. 410-11.
Judges' case.19 Ali J, also took the view that the system
appointments on the President through the council of mi
the appointments accountable to the people.20 The concur
of R. S. Pathak J, took the view that though the power of a
lay with the executive, it was neither absolute nor unfet
conditional upon consultation.21 The judges, thus, agreed tha
executive was the deciding authority, it was bound to consult
meaningfully.
The apple cart was upset by the turn taken in the Second Judges '
case by the nine judge bench decision. Seervai quotes the passage from
the judgment of Punchi J, which deals with the manner in which the
judgment was delivered in bits and pieces and shows how, in delivering
such a constitutionally important judgment, there was an apathetical
lack of consultation inter-se amongst the judges: 22
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
meetings, having a free and frank discussion on each and every
topic which had 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. I was indeed
overtaken when I received the draft opinion dated June 14, 1993
authored by my learned brother J S Verma, J for himself and on
behalf of my learned Brethren Yogeshwar Dayal, G N Ray, Dr.
A S Anand and S P Barucha, JJ. The fait accompli appeared a
stark reality; the majority opinion, an accomplishment. The hopes
I entertained of a free and frank discussion vanished. But then
came the opinion dated August 24, 1993 of my learned brother
Ahmadi, J like a pebble of hope hewn out of a mountain of
despair, followed by the opinions of my learned brethren Kuldip
Singh and Pandian, JJ dated September 7, 1993 and September
9, 1993 respectively. No meaningful meeting thereafter was
possible as the views by that time seemed to have been polarized.
So now the firm opinions of the eight brethren, as communicated,
19. What Fazal Ali J did not go on to say, but it only follows as. sequester is that
absolutism is contrary to the concept of democracy and separatio^ of power. Id. at
410.
20. Supra note 18.

21. Id. at 710.
22. Id. at 708.
are known to me. Loaded with these opinions I set ou

my own, more as a duty to the venture embarked
owe it immeasurably, for being party to the referral.
Pandian J who concurred with the majority judgmen
the preconception that judicial appointments were under
executivè and, as custodian, it was for the judiciary
executive interference in judicial appointments. The f
form Pandian J's judgment is what can be said to set
majority judgment: 23
The questions that are symbolically referred to above
in these two writ petitions and they are related to the
of the superior judiciary, the primary objects of whi
facilitate the judiciary (a) to get rid of its suffocation
the excessive dominance of the executive in the matter of
appointment of judges to the superior judiciary as well as in the
formation of its structural composition; (b) to give primacy - if
not supremacy - to the opinion of the Chief Justice of India in
all the matters thereof; and (c) to enjoy normal breathing of the
unpolluted air of judicial independence, so that the indispensable
independence and integrity of the judiciary are kept up, consistent
with the letter and spirit of the Constitution and in tune with the
oath or affirmation made and subscribed, bearing "allegiance to
the Constitution of India," and also are saved "from the hardening
of the executive arteries.
The first question that strikes is whether there was in fact, executive
interference between 1982 and 1993 that required a change in view
necessitating the setting aside of the unanimous judgment of the seven
judges in the First Judges' case: or was it a notional fear that led the
majority to usurp onto itself the final say in the appointment of judges.
Considering that the majority judgment does not proceed to demonstrate
how, in actual practice, the constitutional scheme of consultation under
article 124 had failed, one can only be left to go by the concurring
judgment of Pandian J, which is based on the hypothetical future scenario.
According to him, with the state being a major litigant, the existing
structure where the state has the absolute authority to nominate and
appoint would lead 'the independence of judiciary
any trace.1* However, while the judgment of Pandi

possibility of what may prevail in the future, it is
led to him arriving at such a conclusion. In fact, P
23. Id. at 516.

24. Id. at 569.
himself because his analysis on the future scenario is con

observations that the judicial system in India worked better
other nation.25 But even assuming that Pandian J rightl
threat to judicial independence by politicising appointments
lies no explanation for reading the word consultation to mean
concurrence. Could the judges have usurped the executive's supremacy
qua the process of appointment through an interpretative exercise?
The majority judges in their judgment also observed that the Union
of India had, in the past, accepted the opinion of the chief justice except
in a few exceptional cases. They interpreted the union's regard to the
opinion of the chief justice to be an acceptance of the 'primacy' accorded
to the chief justice, therefore, concluding that... 'it stands to reason that
the actual practice being in conformity with the constitutional scheme,
should also be accorded legal sanction by permissible constitutional
interpretation...'26 The union's submission, however, were to the
contrary: while the union recognised the fact that it had the final say, it
submitted that the existing scheme did not require to be tampered with
because in all, but exceptional cases, they had accepted the opinion of
the chief justice. However, to say that the acceptance of the opinion of
the chief justice by the union government in the past was submissiveness
to his 'primacy' even disregarded the submission made by the counsel
in court. In fact, to bind the union because it had largely concurred with
the names forwarded by the chief justice, begs the question that if the
union had been accepting the opinion of the chief justice in lesser
percentage, would the judgment of the majority stand the test of
precedential acceptance.27 In fact, acceptance of the union's submission
only shows that the constitutional scheme envisaged had not become
dysfunctional and appointments were being made by the executive after
effective consultation and it was only in a few isolated cases that the
executive did not accept the name forwarded by the chief justice. This
only demonstrates that the executive could and did exercise its own
right of primacy whenever it so required. To transpose this and permeate
the logic that when the parties were not ad-idem upon a particular
name, the view of the chief justice prevailed was opposed to the scheme
of the Constitution.
25. Ibid.
26. Id. at 695. At 609 the submission of Milon Banerji, Attorney uenerai Tor
India, is recorded by Ahmadi J as under: 'The mere fact that normally the executive
responds positively to the views of the Chief Justice of India cannot be misconstrued
to concede the rights of veto to the Chief Justice of India in the matter of appointment
of a candidate or refusal to appoint a candidate"
27. Also see the opinion of Kuldip Singh J at 669 Para 392.
A further argument was given by the majority for a

to the opinion of the chief justice is fashioned by d
with the weight accorded to 'expert opinion'. As t
chief justice is in the nature of an 'expert opinion',
the view that the opinion ought to be accorded prim
extract from the judgment of the majority reads:28
The discharge of the assigned role by each function
in the context of the obligation of each to achieve t
constitutional purpose in the joint venture will help
the concept of primacy between them. However, if
disagreement even then between them which cann
out by joint effort, the question of primacy would
statement.
For this reason, it must be seen who is best equipped and likely
to be more correct in his view for achieving the purpose and
performing the task satisfactorily. In other words, primacy should
be in him who qualifies to be treated as the 'expert' in the field.
Comparatively greater weight to his opinion may then be
attached.
Ahmadi and Punchi JJ dissented, though with separate judgments.

Ahmadi J compared the method of appointment of judges in England,
USA, Canada, New Zealand and pointed out that judicial appointments
in no other country required judicial concurrence of primacy. He also
compared the modicum for appointments laid down under the
Constitution for appointment of the district judges, which requires the
recommendation of the high court and stated that there was a distinction
between where the Constitution wanted the court to be merely
consultative and where it had to be recommendatory.29 Both Ahmadi
and Punchi JJ felt that the only way of opinion of the chief justice could
be given any primacy was by way of an amendment to the Constitution.
The other change that the majority judgment made in the Second
Judges ' case was the formation of a judicial collegium amongst the
judges for recommending appointments. The majority lay down that the
Chief Justice of India was required to consult and ascertain the opinion
of his two senior-most colleagues before forwarding a recommendation
to the President. While the formation of a collegium amongst the judges
was not prescribed within the original framework of the Constitution
(and again ought to have been done only by way of a constitutional
amendment), the criticism on this score was limited because it did not
28. Id. at 690.

29. Arts. 233-37. The reasoning of Ahmadi and Punchi JJ will be discussed
infra.
2 1 0 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .47:2
leave judicial appointments in the hands of one individual

the creation of a three member judicial collegium evide
solve the problem because five years later a presidential r
preferred under article 143 of the Constitution, seeking a re-
of the strength of the judicial collegium. The stand of t
India before the Supreme Court in the Third Judges ' case, w
chose not to seek a review of the judgment in the Second Ju
was for increasing the strength of the judicial collegium to
most judges. The Supreme Court agreed with the submission
explaining why five minds would be better then three and
collegium to include the chief justice and his four senior mo
The court also stated that if none of the four senior mo
would succeed as chief justice, the judge next in line to be c
would also be included in the collegium. Thus, selection o
the Supreme Court now requires consultation amongst eithe
judges of the Supreme Court, including the chief justice.31
Judges ' case the Supreme Court also observed that if two o
judges did not agree with the recommendation of the chi
would not be appropriate for the chief justice to press £uch
recommendation.32
So what has been done, in effect, is that without any amendment to
the Constitution, appointments to the Supreme Cou,rt now requires the
concurrence of the chief justice, whose opinion must take into
consideration the opinion of his four (or may be five) senior most
colleagues. Words like 'concurrence', 'primacy' and 'collegium', which
do not find mention in the Constitution and can neither be derived nor
construed on a plain reading, have been read into the Constitution through
judicial interpretation. There are three possible reasons why the majority
of judges in the Second Judges' case gave to themselves the casting
ballot: (i) a feeling that they had been left out because in other countries
judges' had a greater say in appointment, (ii) a distrust on the executive,
based on sound considerations and past conduct, or (iii) a perception
that the existing system posed a threat to judicial independence. As
regards the first two, the only plausible explanation was the perception
of the judges that the existing system posed a threat to their independence.
Although the majority judgment does not back its perception with any
sound basis but even assuming that the perception was correct, it still
did not justify the interpretation of the word consultation in article 124
with a synonym which is possibly only found in the judgment and not in
30. See, M. P. Singh, "Merit" in the Appointment oí Judges," 8 SCC (Jour) 1

(1999).
3 1 . Supra note 9 at 764.
32. Id. at 765 para 22.
2005] REVISITING THE APPOINTMENT OF JUDGES 2 1 1
a dictionary. In fact, even the NCRWC, strained its reas

the majority judgment. The report, on the interpretat
took the view that the majority in the Second Judg
correct view and served the purpose of the 67th Am
Clearly, ff concurrence was legislatively recognized
constitutional amendment, it rendered that interpretati
the domain of the judges. Ahmadi J, in minority, righ
the majority judges had overreached, for giving the ju
word in mątters of appointment would only have b
constitutional amendment.
Three years after the judgment in the Third Ju
NCRWC took the view that the existing method for
ought to be disbanded and a commission be set up.
this was followed by the tabling of the 98th Constutio
Bill in May 2003 in the lower house of Parliament w
when the government changed, but the fact that since
presidential reference and a move to amend the Con
shows that notwithstanding the Supreme Court admixi
intent with its judicial interpretation, there still
satisfactory solution.
IV International Perspective on
Appointment of Judges
The uniqueness- of the constitutional scheme for judicial appointments

in India is best understood when compared with the manner in which
judicial appointments take place in other common law countries, as well
as in the United States of America. An overview of the system shows
that the recent proposals for change internationally are also centered
around the inter-play between the role of the executive and the judiciary.
These concerns have been well summed up in the first report of England's
Constitutional Committee of the House of Commons, which, while
dealing with the appointments of their newly proposed Supreme Court
states: '...the process must be transparent; it must have the confidence
of the Government, the judiciary, the legal profession and the public - it
must be clearly merit-based and the independence of judges must be
assured;
the process...'34 The Canadian Bar Assoc
33. Consultation paper on Superior Judiciary,

the Working of the Constitution, 26 j). 2001, para
34. House of Commons, Constitutional Affairs Co
and a Supreme Court, (court of final appeal), F
Vol. I, Para 57.
2 1 2 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 47 : 2
on judicial independence and objectivity in the selection

one of the main considerations for appointment. The C
opined that it is necessary to remove the perception that ap
to the Supreme Court of Canada are made with a politica
report prepared by the Canadian Bar Association, extracts f
DCA report which reads 4 if the judiciary is to be seen a
independent of the government of the day, it must be ap
process which must be seen to be open and independent.36 C
concern of 'people perception', where the citizens believe th
of judges is impartial and unbiased, are paramount consi
determining the optimal mode for appointing judges. The v
the CBA in March 2004 is consistent with a 1984 view of the Committee
on the Appointment of Judges in Canada, which also cited insufficiency
of public knowledge about the process of appointment and public
perception of excessive political influence as two flaws in the appointing
process.37 Therefore, objectively viewed, the concerns can be clubbed
as two-fold: First, appointment by the executive should not impinge
upon independence of judges, in that, the criteria for appointment ought
to be purely merit, keeping aside factors such as leanings and ideologies
of a judge; secondly, people have to perceive that appointments to the
judiciary are independent and not writ with a degree of favoritism or
based on considerations other than the merit of the candidate. The outcry
for a method that achieves these twin objectives has increased largely in
the last decade on account of the government increasingly becoming a
litigant and the citizens growing more acutely aware of the importance
of the judiciary in ensuring/upholding their fundamental rights.
Keeping these objectives in mind, the method and manner of judicial
appointments in England and USA as well as Canada, Hong Kong and
Australia former colonies of England whose modern day court system
has been derived from the English judiciary may be considered.
Appointment of judges to the Supreme Court in the United States of
America is different from that in other countries, being more in tune
with the American concept of public awareness and knowledge.
In England, the lead role in matters of appointment is played by the
Lord Chancellor, on whose advice appointments are made either by the
35. Supreme Court of Canada, Appointing Process, Canadian Bar Association,

March 2004.
36. See Discussion on appointments in the United Kingdom, Department of
Consultation Affairs: Consultation Paper Constitutional Reform: A new way of
appointing judges, July 2003, paras 22 and 23 . http://www.dca.gov.uk/consult/
jacommission/index.htm#part4.
37. Committee is also called the McKelvey Committee and the Report of the
Canadian Bar Association Committee on the Appointment of Judges in Canada was
published on 20.8.1985. The Report is called the McKelvey Report.
queen or the prime minister. The office of the Lord C

formal and informal means of communication between t
government and parliament. The lord of appeals in or
chief justice, the master of rolls, the president of the fam
vice-chancellor and the lord justice of appeal are appoint
on the advice of the prime minister who forms his advic
consultation with the Lord Chancellor. Puisne judges of
are appointed by the queen, again in consultation
Chancellor. In both these cases, the practice is based on c
the role played by the Lord Chancellor, who is also a mi
and extensive.38 The English system also includes the pr
sounding ' which involves extensive and exhaustiv
consultation with judges and senior members of the
Chancellors Department, as to be able to get a thoroug
potential candidates.39
Plans are on the anvil in England to make certain
changes to its judicial system by taking away from the
its appellate jurisdiction and setting up a Supreme Co
process, England is seeking to abolish the office of the L
The government's decision to abolish the office of the L
is based on the grounds that (i) 'at present, the enti
appointment of judges is effectively in the hand
Chancellor'40 (ii) 'in order for the judiciary to contin
public confidence, it is vital that the process by which ju
and appointed must also command public confidence.'4
38. See, O. Hood Phillips and Jackson, Constitutional and Ad

431-32 (8th ed.). Also See, para 48, House of Commons, Consti
Committee, Judicial Appointments and a Supreme Court, (cou
First Report of Session 2003-2004, Vol I.
39. House of Commons, Consttutional Affairs Committee, id
40. Id., para 1 18: "It is increasingly anomalous for a minister
in this way. While it is not suggested that the power to appoin
abused in modern times, there is undoubtedly a view that this pow
source of patronage over the judiciary and the legal profession
in modern democratic society. The judiciary today is more than ev
through judicial review, in adjudicating on the lawfulness of actio
This role has expanded since the coming into force of the Huma
if the judiciary is to be seen and trusted as independent of the
day, it must be appointed by a process which must be see
independent." DCA Consultation Paper CP 10/03, para 22.
41. Ibid. 'The present judicial appointments system has come
scrutiny and "challenge in recent years. Rightly or wrongly, the
are commonly seen as unaccountable and lacking in transparency.
by many to be systemically biased. Whether or not the system
perception has an impact which is real enough. This perception
need to increase diversity in the judiciary.'42 It is interestin

of these cite the failure of the existing system of appoin
basis for making a change but premise the need for ch
ground that the current system is perceived as being unacco
seems to be lacking in transparency, a perception which dam
confidence in the judiciary.43 The Canadian system of a
committee for appointing judges is noted with approval
Consultation Paper as being a manner befitting more openne
participation for appointments.44 The Constitutional Reform
which the office of the Lord Chancellor is sought to be repl
with the establishment of Supreme Court is pending.45
The Canadian system is like the English system, where th
appoint judges and the appointing procedure is in the h
executive.46 A report titled 4 The Appointment of Judge
CBA Committee Report , 1985 ' (Mckelvey Report } observed
judicial appointments ought not be based on partisan conside
judges must not only be independent but also seen to be
continued to affirm that the 'final decision on appointme
must remain with the government .'47 However, the Canadi
begun seeking recommendations from a recommendatory
which consists of seven members, comprising of three la
confidence in the administration of justice and deter some potential ca

applying for judicial office. ' DCA Consultation Paper CP 10/03, par
42. Ibid.
43. Ibid, Also see: Jacob Ziegel, "Disrobe this process: Let's update our 19th
Century system for appointing Supreme Court judges and make it transparent," The
Globe and Mail , 27.1 1.2003. 'The federal government is the most frequent litigant
before the court. Thus, there are reasonable grounds for concern that the prime
minister will appoint judges expected to be sympathetic to federal positions and that
lower court judges, anxious to be considered for future promotion to the Supreme
Court, will strive to establish track records that will resonate well with the prime
minister. '
44. See, Department of Consultation Affairs Consultation Paper Constitutional
Reform: A new way of appointing judges, July 2003. http://www.dca.gov.uk/consult/
jacommission/index.htm#part4
45. See Supreme Court of Canada, Appointing Process, Canadian Bar Association,
March 2004.
46. Supra note 38. Also see Professor Jacob Ziegel, supra note 43:... Under the
current system of appointments, Canada's Prime Minister has the sole prerogative to
fill vacancies on the Court and to appoint the Chief Justice of Canada. He is not
obliged to consult any one- and if he does consult, is free to ignore the advice. Nor
is he accountable for his choice to Parliament or any other body. In short, there is a
conspicuous lack of transparency in the appointive system. It is a relic of Canada's
19th-century colonial history but unworthy of a country that prides itself on the rule
of law and democratic values.'
47. See McKelvey Report , Chapter 7- Conclusions and Recommendations.
lay persons and a judge. While two lay perçons and

appointed directly by the federal minister of just
nominated by the chief justice of the province, wh
persons come from a list of lawyers provided by t
society and the Canadian Bar Association. 48 On 8-3-20
Bar Association wrote two letters to the prime ministe
an advisory body to facilitate selection of judges to th
and disbanding the predominant role played by the ex
letter criticized the appointment system followed in t
America and suggested the creation of a non-partisan ad
in order to ensure that ' . . we continue to urge that ap
Supreme Court be made following an established,
understood advisory process in order to facilitate selec
candidate. When Canadians understand how Supreme
appointed, their confidence in the system will be that
In the second letter of 8-3-2004 the Canadian Bar Association
suggested the constitution of the special advisory committee: 50
You would appoint a Special Advisory Committee each time a
vacancy occurs on the Supreme Court of Canada (SCC). The
Committee would be structured similarly to the existing federal
judicial appointments advisory committees, drawing from the
legal community and public. It would be composed of
representatives of the federal Minister of Justice, and of the
Attorney General, Chief Justice and law society in the jurisdiction
or jurisdictions from which the candidate would be selected.
The national President of the Canadian Bar Association would
also be a member. The Committee structure would differ from
the existing model by the inclusion of four Parliamentarians,
elected from and by the membership of the House of Commons
Standing Committee on Justice and Human Rights. The Special
Advisory Committee would make recommendations to you. It
would be bound by the confidentiality of the current advisory
committee process that has served Canada well and must be
preserved.
Thus, the Canadian Bar considers the creation of an independent
body as the solution for balancing the roles and interests of the executive
and the judiciary and also being the answer for the people of Canada to
understand how judges to their Supreme Court are appointed.
48. House of Commons, Constitutional Affairs Committee, supra note 38.

49. See, Supra note 35. See letter dated 8.3.2004 from F. William Johnson,
Q.C., President, Canadian Bar Association.
50. Ibid .
2 1 6 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 47 : 2
In Australia, the appointment of judges to the high court (the h

court) is made by the federal government on the advice of the At
General. The Attorney General is, however, statutorily required to
the attorney generals of the different states before making
recommendation for appointment to the high court51 and the appoin
are made by the Governor General and the cabinet on the basis
recommendation. Before forwarding recommendations, the At
General follows an informal but well established process of consul
with the federal judiciary and the bodies representing the legal pro
such as the National Professional Association of Legal Practition
In New Zealand, the power to make judicial appointments rests
the executive, though, in most cases the Attorney General fo
recommends the names to the Governor General.53 The only exce
to this procedure is the appointment of the chief justice, wh
appointment is made on the recommendation of the Prime Minist
The New Zealand Government, in 1998, set up the Judicial Appoin
Board comprising of judges, members of the bar and lay member
board advertises judicial positions, reviews applications and su
ranked list of at least two candidates to the Attorney General
makes the final recommendation to the Governor General. However, in
September 2002, the government asked Sir Geoffrey Palmer to review
the appointment procedures. In a report published in November 2002,
the notion of an independent commission to make judicial appointments
was rejected and it was recommended that this power should rest with
the executive.35 The report also recommended the establishment of a
new judicial appointments and liaison office to assume responsibility
for the recruitment process and other issues currently shared by several
agencies, such as judicial terms and conditions of service. This proposal
has been broadly accepted, as reflected in the Judicial Matters Bill that
was later initiated in the New Zealand Parliament.56
Just to mention in brief, in Germany, members of the German
Constitutional Court are elected by the two chambers of the German
Parliament57 . In South Africa, the members of the constitutional court
51. Section 6, High Court of Australia Act, 1979.

52. Supra note 38.
53. See, Supra note 35. Discussion on the manner of appointments in New
Zealand.
54. Ibid. Even Maori Land Court Judges are appointed on the recommendations
of the Minister of Maori Affairs.
55. Geoffrey Palmer, "Judicial Selection and Accountability: Can the New Zealand
System Surv ive?" in Gray & McClintock, Courts and Policy : Checking the Balance
40-52 (1995).
56. Supra note 43.
2005 J REVISITING THE APPOINTMENT OF JUDGES 2 1 7
are appointed on the recommendation of a Judicial Serv

after public scrutiny of the candidates in open hearing.5
The United States of America (USA) has a process
judges which is distinct from other common law countries. The
Constitution of the US empowers the President to appoint judges of the
Supreme Court on the advice and consent of the senate making the
selection process exclusively executive in nature. The rigours that a
judicial appointment goes through is distinct in comparison with the
common-law countries. Appointments are initiated in the office of the
department of justice and after a detailed scrutiny, the name of the
judge is forwarded to the Federal Bureau of Investigation (FBI). The
appointment of the judge is recommended by the Attorney General to
the President along with a letter from the deputy attorney general, the
FBI Report, the candidates resume' and other relevant information about
the judge. If the President approves the nomination, he sends it to the
senate for approval through a 'confirmation hearing'. It is, in fact, the
process at the senate and more particularly the 'confirmation hearing'
of a potential candidate that has a number of disapprovers. The Judiciary
Committee of the Senate consisting of 18 members holds the confirmation
hearing, which can take testimony by subpoena attendance of witnesses,
production of correspondence, books, documents etc. all of which is
open to the public. The nominee is then voted upon and those with a
majority vote go to the full senate. The senate selects the candidate on
the basis of a majority voteģ59
The common thread that runs along the manner and method of
appointment of judges to the superior judiciary is not only the fact that
the executive is the appointing body but the fact that it plays the central
role in selecting the appointees. The Lord Chancellor in England wears
three hats at one time, which includes that of a cabinet minister in the
government; in Canada and New Zealand the executive plays an important
role, though in New Zealand it is the Attorney General who forwards
the recommendation. This is also followed in Australia, where the
Attorney General forwards the name after consultation with other attorney
generals of the states. In the United States, the role played by the
executive (the senate) is virtually unparalled and judges are screened in
public scrutiny, the public being made aware of the qualities of the
judge and perceiving that the most suitable candidate has. been selected
to the job.
58. Ibid.
59. This paragraph is taken from the article of Mr. Cheung Wai-lam "The Process
of Appointment of Judges in Some Foreign Countries: The United States", Research
and Library Service Division, Legislative Council Secretriat, Hong Kong,
22.11.2000.
V How India Compares?
Understanding the modicum of judicial appointments in India vis-à-

vis the countries cited above, makes it possible to appreciate why the
constitutional mechanism for appointing judges in India, as originally
framed by the constitutional makers, was unique. While taking cue from
other countries and keeping the prerogrative of appointments with the
executive, the constitution framers delicately balanced the power of the
executive with the obligation of consulting the Chief Justice of India
and such other judges before proceeding with confirming any
appointment. Had the majority in the Second Judges ' case not taken a
different view and interpreted consultation of the chief justice to mean
concurrence, Seervai would not have remarked his treatise on
Constitutional Law of India as under: 60
I know of only one authority which might justify the suggested
method of construction: 'When I use a word,' Humpty Dumpty
said in rather a scornful tone, 'it means just what I choose it to
mean, neither more nor less.' 'The question is,' said Alice,
'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master-
thaťs all.' (Through the Looking Glass, c.vi) After all this long
discussion, the question is whether the words 'If a man has' can
mean 'If a man thinks he has.' I am of the opinion that they
cannot, and the case should be decided accordingly.
The analogy that Seervai draws between 'a man has' and 'a man
thinks he has' is an apt distinction between what was formulated an
was believed to be formulated. As originally envisaged, consultatio
with the chief justice was a constitutional requirement and without
consultation, no person could be appointed to the Supreme Court bench.
In the Judges ' case, consultation was read to mean effective consultatio
being a constitutional mandate. But the majority in the Second Judges
case on a belief that ills had crept into the appointment of judges, took
the view that consultation meant concurrence and in doing so effectively
usurped upto themselves the prerogative of disregarding the choice o
the executives. Consider this situation with the manner and method of
appointment in countries discussed above, which have also been reflected
by Ahmadi J in his dissenting note.61 Ahmadi J was on point to not
that the founding fathers of the Indian Constitution were aware of the
60. H. M. Seervai, III Constitutional Law of India , 4th ed. ; Liversidge v.

Anderson (1942) AC 206 at 245.
61. Supra note 1 at 602-03, 275-79 where Ahmadi J discusses the practic
prevalent in England, United States of America, Canada, Australia and New Zealand
2005 ] REVISITING THE APPOINTMENT OF JUDGES 2 1 9
manner of appointment of judges in the various countr

undertook the task of drafting the Constituion for free Ind
then the power of appointment was totally with the execu
Indian system, as he pointed out, took the middle path by
chief justice involved, but did not allow him to play the d
matters of appointment. A further fact that both Ahmadi
observed was that there had probably only been three app
the Supreme Court that did not have the consent of the ch
number not alarming enough for setting aside the view of
in the Judges ' case.
Whether concurrence of the chief justice could have
about through a judicial process of interpretation o
constitutional amendment was required is writ large in th
in the report of the NCRWC. On one hand the NCRWC rep
the proposed move in the 67th Constitutional Amendm
amending the Constitution and replacing the word 'con
the word 'concurrence' but then, on the other hand, it
purpose of the 67th Amendment was served by the jud
Second Judges ' case. Clearly, if at one stage a constitution
was considered necessary for replacing the word consu
word concurrence, then to interpret consultation to mean
seems inconsistent.63 When the Constitution was framed,
were wary of giving the executive sweeping power in s
and considered it necessary to ensure that the chief justic
in all matters of appointment. But even then they did not
power from the executive.
The Second Judges case drew criticism not only from
also from international quarters. Lord Cooke of Thordone
titled ' Making the Angles Weep ' and 4 Where Angles Fear
62. Id. at 604.

63. See, Report of the National Commission to Review the Working of the
Constitution on the working of the Superior Judiciary, 26th September 201, Pąr
8.20: 'Purpose of 67th Amendment Bill served by the judgmeftť in SC Arora : ....It
would be evident therefrom that the 1993 decision [second judges' case] gives
effect to the substance of the Constitution (Sixty-seventh Amendment) Bill, without
of course calling it a 'National Judicial Commission', and without the necessity of
amending the Constitution as suggested by the said Amendment Bill.^ indeed, i
carries forward the object underlying the Amendment Bill by making th
recommendations of the Chief Justice of India and his colleagues binding on the
President. The 1998 opinion indeed enlarges the 'collegium'. In this sense, the
purpose of the said Amendment Bill evidenced by the proviso to article 124 (2) an
the explanation appended thereto, is served, speaking broadly.
64. See, Robin Cooke in B. N. Kirpal, Ashok H. Desai, et al. (ed.), Supreme but
not Infallible: Essays in Honour of Supreme Court of India, 97 (2000).
came down heavily on the judgment and the usurpation of

of appointing judges.65 Lord Cooke in his first article wri
Second Judges case pointed out that though the word 'cons
'concurrence' were distinct in ordinary parlance the i
according to him assumed importance was whether 'in
the constitution, construed as a living and developing in
permeated by powerful ideas such as the separation of pow
words may be perceived to bear a special meaning.66 S
Cooke's disapproval that he concluded that article with
statement: 67
[T]he overall impact of their [majority] decision is a blo

for the principle of judicial independence that will not
India only. However vulnerable in detail, it will surel
be seen as a dramatic event in the international hist
jurisprudence.
It would be unfair not to point out to the international support for
the majority judgment. Lord Templeman, (in an article published
commemorating the 50 years of the Indian Supreme Court), wrote: 68
[T]he majority decision has been critized as an extension of the
meaning of the word 'consultation'. However, having regard to
the earlier experience in India of attempts by the executive to
influence the personalities and attitudes of members of the
judiciary, and having regard to the successful attempts made in
Pakistan to control the judiciary, and having regard to the
unfortunate results of the appointment of Supreme Court judges
of the United States by the President subject to approval by the
Congress, the majority decision of the Supreme Court of India
in the Advocates on Record case marks a welcome assertion of
the independence of the judiciary and is the best method of
obtaining appointments of integrity and quality, a precedent
method which the British could follow with advantage.
The reasons of Lord Templeman, however, do not reflect extensive
knowledge of the state of affairs prevalent in India; for one, unlike
Pakistan the Indian Constitution has never failed her citizens. Secondly,
the system in India significantly differs from that in the United States,
which is executive oriented.
65. Id. at 112.

66. Id. at 116.
67. Lord Templeman, "The Supreme Court and the Constitution in supra note
65 at 48, 53.
68. Infra note 72.
20051 REVISITING THE APPOINTMENT OF JUDGES 22 1
VI Conclusion
Though the manner of appointment of judges has wide ram

on the executive-judiciary relationship in India, it has,
unfortunately, not been subjected to interrogation by the m
debate has, and unfortunately appears to remain, confined
section of the intelligentsia. Whether the majority judges in t
Judges case had correctly foreseen greater executive inter
matters of judicial appointments is not as significant an i
compared with whether the judges could have accorded themse
primacy for selecting judges through an interpretative process.
lose sight of the observations of Ahmadi J where he says: 69
[T]he Constitution is what the judges say it is. That is be
the power to interpret the Constitution vests in the judg
heavy responsibility lies on the judges when they are c
upon to interpret the Constitution, the responsibility is all
more heavier when the provisions tq be construed relate to
powers of the judiciary. It is essential that complete objecti
is maintained while interpreting the constitutional prov
relating to the power of the judiciary vis-à-vis the executiv
the matter of appointments to the superior judiciary to
any feeling amongst the other constitutional functionaries
there has been usurpation of power through the proce
interpretation.
Even if one accepts the procedures of selecting judges th

judicial collegium to be more ideal to ensure judicial indepe
does not set at rest the tussle between the two institutions.
Clearly, the manner and mode of appointments in the United States,
especially the process of confirmation hearings, would not fall within
the Indian constitutional scheme or polity. The Canadian Bar Association
has openly criticized the American system of appointment and while
recommending changes in the manner of appointment to their Supreme
Court have disfavoured the type of congressional screening and public
examination, as well as the review and exposition of judges to
parliamentary criticism of their judgments or cross examination of
potential judges on their political and judicial opinions.70 It is difficult
69. Supreme Court Advocates-on-Record Association, supra note 1 at 600 (para

271).
70. Supra note 35. See letter dated 8.03.2004 from F. William Johnson, Q. C.,
President, Canadian Bar Association stating: 'The CBA is greatly concerned that
Parliamentary reviews of candidates to become Supreme Court of Canada Judges
would pose an unacceptable threat to the independence of our judiciary. We are
to imagine, and in fact an uncomfortable thought, to have j

questioned by the executive and have their antecedents verif
being voted upon for being appointed to the superior jud
executive in India has not reached a level of maturity to
an exercise and the entire process would only lead to unde
judiciary and judicial independence. No self-respecting j
want to be placed in a position similar to that of Clarens Th
American Supreme Court Justice appointed in 1991 by Presi
Bush on a close senate vote of 52:48. 71 Clarens Thomas' publ
calls for reflection:
I wasn't harmed by a racist group. I was harmed by this process.

This process, which accommodated these attacks on me. If
someone wanted to block me from the Supreme Court of the
United States because of my views on the Constitution, that's
fine. If someone wanted to block me because they don't like the
composition of the court, that's fine. But to destroy me - I
would have preferred an assassin's bullet to this kind of living
hell that they put me and my family through.
The Indian constitutional system does not contemplate judging of
judges through a confirmation hearing that dissects not only the judges'
personal dignity but also that of the office.
On the other hand is the creation of an independent commission for
appointing judges, for which we have the examples suggested in England
and Canada. While creation of an independent commission suggests a
method that would assure the independence of the judicial office and fit
into the framework of the Indian Constitution, much depends on the
constitution of the commission. Should the constitution be limited to
five members, as contemplated in the 98th Constitutional Amendment
Bill, with two from the executive and the three senior most judges of
the Supreme Court, including the chief justice? A line of criticism that
did the round when the 98th Constitutional Amendment Bill was
introduced was the 'dangling of the carrot' by the executive to only one
strongly opposed to the adoption of U.S. style hearings, which inevitably become
heavily politicised. We are strongly opposed to any system which would expose
judges to Parliamentary criticism of their judgments, or cross-examination on their
beliefs or preferences or judicial opinions, or any measure which would give to
Canadians the mistaken impression that the judicial branch answers to the legislative
branch. Canada is blessed with perhaps the best and most independent judiciary in
the world and that nothing must jeopardize this independence/ Also see, Professor
Ed. Ratushny, Confirmation Hearings for Supreme Court of Canada Appointments:
Not a Good Idia!, Ottawa Law School, June 2001.
71. David H. Souter J another appointee of President George Bush in 1991 was
appointed with must lesser opposition and a senate vote of 90:9.
2005) REVISITING THE APPOINTMENT OF JUDGES 223
of the judicial members on the commission and taking with it

in appointing judges. If not a five member panel, would it b
to make the commission more broad based or should we just
what had been originally framed, where the chief justice on
consultative role? While this may be an ideal solution, it
nought the requirement of the chief justice constituting
collegium amongst the judges before finalizing the name.
impels that the inter se constitution of a collegium as w
requirement of consultation are both necessary for selecting
the same time allowing the executive to have the final say o
the concept of separation of power and checks and balanc
of the two would be ideal but rewinding the clock may not
free.

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REVISITING THE APPOINTMENT OF JUDGES: WILL THE EXECUTIVE INITIATE A CHANGE?

Author(s): Nakul Dewan

REVISITING THE APPOINTMENT OF JUDGES:

Nakul Dew an*

IT IS a decade and two years since the judgment of nine-member bench

* Advocate, Supreme Court of India.

of the Law Commission4 also dealt with judicial appointm

Despite none of these proposals resulting in an amen

7. S. P. Gupta v. Union of India, (1981) Supp SCC 87.

senior most colleagues from the bench, the law minister an

II The Original Constitutional Scheme

The reason why selection of judges to the higher judiciary sparks

Article 124 (2) of the Constitution states as under:

The debate amongst the members of the Constituent Assembly on

1 1. See, VÍII Constituent Assembly Debates , 229-63.

14. Id. at 258.

III The Tinkering: An Overview of

Bhagwati J, was comparing the consultative process adopted for the

20. Supra note 18.

are known to me. Loaded with these opinions I set ou

any trace.1* However, while the judgment of Pandi

23. Id. at 516.

himself because his analysis on the future scenario is con

A further argument was given by the majority for a

Ahmadi and Punchi JJ dissented, though with separate judgments.

28. Id. at 690.

leave judicial appointments in the hands of one individual

30. See, M. P. Singh, "Merit" in the Appointment oí Judges," 8 SCC (Jour) 1

a dictionary. In fact, even the NCRWC, strained its reas

The uniqueness- of the constitutional scheme for judicial appointments

the process...'34 The Canadian Bar Assoc

33. Consultation paper on Superior Judiciary,

on judicial independence and objectivity in the selection

35. Supreme Court of Canada, Appointing Process, Canadian Bar Association,

queen or the prime minister. The office of the Lord C

38. See, O. Hood Phillips and Jackson, Constitutional and Ad

need to increase diversity in the judiciary.'42 It is interestin

confidence in the administration of justice and deter some potential ca

lay persons and a judge. While two lay perçons and

48. House of Commons, Constitutional Affairs Committee, supra note 38.

In Australia, the appointment of judges to the high court (the h

51. Section 6, High Court of Australia Act, 1979.

are appointed on the recommendation of a Judicial Serv

V How India Compares?

Understanding the modicum of judicial appointments in India vis-à-

60. H. M. Seervai, III Constitutional Law of India , 4th ed. ; Liversidge v.

manner of appointment of judges in the various countr

62. Id. at 604.

came down heavily on the judgment and the usurpation of

[T]he overall impact of their [majority] decision is a blo

65. Id. at 112.

Though the manner of appointment of judges has wide ram

Even if one accepts the procedures of selecting judges th

69. Supreme Court Advocates-on-Record Association, supra note 1 at 600 (para

to imagine, and in fact an uncomfortable thought, to have j

I wasn't harmed by a racist group. I was harmed by this process.

of the judicial members on the commission and taking with it

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