A CRITICAL ANALYSIS OF THE SELECTION AND APPOINTMENT

OF JUDGES OF THE HIGHER JUDICIARY IN INDIA WITH SPECIAL

REFERENCE TO NJAC AND COLLEGIUM SYSTEM

Dissertation submitted to Alliance University for the partial fulfillment of the

degree of

MASTER OF LAW

In

Constitutional Law and Administrative Law

Amrutansu Pattnaik

Registration No: 200401217018

Batch 2020

Under the Guidance of

Dr. Devaiah N. G.

Alliance School of Law

Alliance University

July, 2021

1
 TABLE OF CONTENTS

DECLARATION

GUIDE CERTIFICATE

ACKNOWLEDGMENT
ACRONYMS & ABBREVIATIONS
LIST OF CASES
ABSTRACT

TOPIC PAGE NUMBER

CHAPTER 1 11 - 20
1.1 INTRODUCTION……………………………………………………………………….11 - 12

1.2 STATEMENT OF THE PROBLEM………………………………………......................12

1.3 LITERATURE REVIEW ………………………………………………………………12 - 17

1.4 EXISTING LEGAL SITUATION………………………………………………………17 - 18

1.5 OBJECTIVE, SCOPE AND LIMITATIONS OF RESEARCH…………………………18

1.5.1 OBJECTIVE……………………………………………………………………………….18

1.5.2 SCOPE……………………………………………………………………………...………18

1.5.2 LIMITATIONS…………………………………………………………………………….18

1.6 HYPOTHESIS………………………………………………………………………………..19

1.7 RESEARCH QUESTION…………………………………………………………………....19

1.8 RESEARCH METHODOLOGY……………………………………………………………19

1.9 CHAPTERISATION………………………………………………………………………19 - 20

1.10 SOURCES……………………………………………………………………………………20

CHAPTER 2 21 - 29
2
2.1 COLLEGIUM SYSTEM..........................................................................................................21

2.1.1 HISTORY………………………………………………........................................................21

2.1.2 COMPOSITION…………………………………………………………………………….21

2.1.3 WORKING………………………………………………………………………………...21 - 22

2.1.4 PRINCIPLES GOVERNING COLLEGIUM SYSTEM……………………………….22 - 23

2.1.5 MERITS OF THE SYSTEM……………………………………………………………...23 - 24

2.1.6 DEMERITS OF THE SYSTEM…………………………………………………………….24

2.2NJAC…………………………………………………………………………………………….24

2.2.1 HISTORY…………………………………………………………………………………..24 - 25

2.2.2 COMPOSITION………………………………………………………………………………25

2.2.3 WORKING………………………………………………………………………………….25 - 26

2.2.4 CHANGES MADE BY 99TH AMENDMENT……………………………………………..26 - 27

2.2.5 PRINCIPLES GOVERNING THE NJAC SYSTEM………………………………………..28

2.2.6 THE MERITS OF THE SYSTEM………………………………………………………….28 - 29

2.2.7 THE DEMERITS OF THE SYSTEM…………………………………………………………29

CHAPTER 3 30 - 40

3.1 PROBLEMS ARISING DUE TO THE DECISIONS OF THE COLLEGIUM…………..30 - 31

3.2 PROBLEMS ARISING OUT OF THE CONFLICT BETWEEN EXECUTIVE AND

JUDICIARY …………………………………………….................................................................31 - 34

3.3 PROBLEMS ARISING DUE TO THE TENSION BETWEEN BAR AND BENCH……….34

3.4 PROBLEMS ARISING OUT OF THE TENSION WITHIN BENCH…………………….34 - 36

3.5 OTHER PROBLEMS RELATED WITH THE JUDICIAL APPOINTMENTS …………36 - 40

CHAPTER 4 41 - 54

4.1 JUDICIAL PRONOUNCEMENTS …………………………………………………………41

4.1.1 FIRST JUDGES CASE……………………………………………………………………41 - 44

3
4.1.2 SECOND JUDGES CASE…………………………………………………………………44 – 47

4.1.3 THIRD JUDGES CASE……………………………………………………………………47 - 49

4.1.4 FOURTH JUDGES CASE…………………………………………………………………49 - 51

4.2 REMARKS………………………………………………………………………………………51

4.2.1 REMARKS OF LEARNED SCHOLARS IN FAVOR OF NJAC………….……51 - 52

4.2.2 REMARKS OF LEARNED SCHOLARS AGAINST NJAC……………………52 - 53

4.2.3 REMARKS OF LEARNED SCHOLARS IN FAVOR OF

COLLEGIUM SYSTEM……………………………………………………………………53

4.2.4 REMARKS OF LEARNED SCHOLARS AGAINST……………………………53 - 54

COLLEGIUM SYSTEM

CHAPTER 5 55 - 57

5.1 OBSERVATIONS…………………………………………………………………………….55 - 56

5.2 CONCLUSION …………………………………………………………………………………56

5.3 SUGGESTION…………………………………………………………………………………56 - 57

BIBLIOGRAPHY 58 - 62

4
 DECLARATION

This is to declare that this dissertation tiled “A CRITICAL ANALYSIS OF THE

SELECTION AND APPOINTMENT OF JUDGES OF THE HIGHER JUDICIARY IN
INDIA WITH SPECIAL REFERENCE TO NJAC AND COLLEGIUM SYSTEM” is
submitted in partial fulfillment of the requirements for the completion of the degree of Master
of Laws (LLM) of this university. It is a bona fide record of research carried out by me, under
the guidance and supervision of Dr. Devaiah N G, Assistant Professor, Alliance School of
Law, Alliance University, Bangalore.

The dissertation has not been submitted for the award of any other Degree of this or any other
university.

AMRUTANSU PATTNAIK

Registration No: 200401217018

Batch 2020 - 21

Alliance School of Law

Alliance University, Bangalore, Karnataka

5
 GUIDE CERTIFICATE

This is to certify that Mr. Amrutansu Pattnaik bearing registration number 200401217018
of LLM course has successfully completed his Dissertation titled “A CRITICAL ANALYSIS
OF THE SELECTION AND APPOINTMENT OF JUDGES OF THE HIGHER
JUDICIARY IN INDIA WITH SPECIAL REFERENCE TO NJAC AND COLLEGIUM
SYSTEM” as approved by the institution, for the academic session 2020-21.

Guide’s Signature

Dr. Devaiah N G

Assistant Professor

Alliance School of Law

Alliance University, Bangalore, Karnataka

6
 ACKNOWLEDGEMENT

This dissertation would never have been possible without the inexorable hard work of everyone whose
presence and supervision have helped me to produce this relevant piece of research.

I offer my respectful gratitude to Prof. Kiran Gardner, Dean, Alliance School of Law, Bangalore. Madam,
I am thankful to you for keeping all of us inspired throughout our time at Alliance School of Law.

I would like to thank my guide, Dr. Devaiah N G, Assistant Professor for his constant support and
invaluable guidance. This work would not have been possible without his constant supervision and pushing
me to work timely.

Most importantly, I am grateful to my parents for their unending support and belief in me.

Finally, I would like to thank the university administration and the library staff for their cooperation and
assistance in the completion of this work. At last, I am grateful to God for the constant watch he kept on my
while over comingall the odds.

AMRUTANSU PATTNAIK

Registration No: 200401217018

Batch 2020 - 21
Alliance School of Law
Alliance University, Bangalore, Karnataka

7
 ACRONYMS AND ABBREVIATIONS

1. NJAC National Judicial Appointments Commission

2. DHCBA Delhi High Court Bar Association

3. SCBA Supreme Court Bar Association

4. RTI Right To Information

5. CJI Chief Justice of India

8
 TABLE OF CASES

1. Kesavananda Bharti v. State of Kerala 22

2. S.P. Gupta v. Union of India 41

3. Supreme Court Advocates-on-Record Association v.
Union of India 1993 44

4. In re Special Reference 1 of 1998 47

5. Supreme Court Advocates-on-Record Association v.
Union of Indian (2015) 49

9
 ABSTRACT

In India, the selection and appointment of judges of the higher judiciary has been a vital, delicate, and one of
the most debated issues both inside as well as outside the legal fraternity. A collegium system was established
to appoint judges of higher judiciary which was criticized of being dictatorial and opaque. To replace the
collegium system the parliament created NJAC which was blamed for allowing the executive interference and
for prohibiting the judiciary to enjoy absolute independence as a result of which the Act was struck down and
the collegium system was reinstated.

Delay in the appointment of judges, increased vacancies in the supreme court as well as in high courts, issues
in the transfer and elevation of judges, rift between bar and bench and within the bench itself, etc are few of the
problems among many which arose as the arguments stretched over the years.

Through doctrinal research on the selected title the researcher mainly aims at highlighting issues in methods of
both NJAC and the present collegium system and intends to explain that why neither of the two systems should
be allowed to select, transfer, elevate and appoint judges.

Moreover he wants to discuss in detail the process of selection and appointment of judges both by NJAC and
the collegium system. Studying and analyzing the doctrine of separation ofpowers, independence of judiciary,
doctrine of revival, doctrine of basic structure, etc he also aims to focus on important theories and principles
upon which these processes were established.

Keywords: Independence of Judiciary, Appointment of judges, separation of powers, Importance of Chief

Justice of India, Basic structure of Constitution

10
 CHAPTER – I

SYNOPSIS

1.1 INTRODUCTION

Every sort of matter related to the judiciary these days somehow in one or other way at the end always results in
bringing up the issue of the appointment of judges of the higher judiciary in India. This makes things more
complicated between all the three organs of the government as with the question of the appointment of judges
there always comes up the question of independence and supremacy of judiciary with other related issues.

The issue of the appointment of judges of the higher judiciary in India that’s why has been a serious concern not
only in the legal realm but outside of it too. This also has been a matter of discussion within legal scholars all
around the world.

The matter of appointment of judges of the higher judiciary if one can notice has in it the existence of many
different principles and theories which are guaranteed under the Indian Constitution. These principles are
essential not only because they have been existed for years and are thoroughly discussed and analyzed over the
years by renowned jurists, teachers, and scholars but also because they have been applied to a variety of
governmental systems and are enumerated in many different constitutions. These principles help the
administration by guiding the process of judicial appointments.

The appointment through either of the two systems namely collegium system and NJAC has strained the
relationship of judiciary with two other organs of the government. Due to this it becomes difficult for the entire
administration to function smoothly as it not only creates chaos and disturbances in the judiciary but also it
makes difficult for the judiciary and the other two organs to agree on same thing. Plus there are a number of
other problems as well which keeps happening due to the unclear and unsettled laws for judicial appointments.

Due to the existing gap in literature, not many have properly tried to understand the problem and put forward
necessary and more accurate solutions which the present system requires. In one hand the promise made to
rectify the present system has not been fulfilled, not even partly due to which the entire judicial system is
criticized till this day. Similarly the NJAC enacted also faced a lot of criticisms and was eventually struck down.
It also didn’t solve any problem, but sadly created many more adding to the existing burden of judicial
appointments.

In this paper various principles and theories related to the judicial appointments have been studied and their
process of implementation and consequences followed over the years after such implementations has been
11
properly analyzed. The process adopted by both the collegium system and NJAC were also thoroughly
discussed. Moreover the existing problems which have arisen due to the present controversies related to
appointment of judges of the higher judiciary have been looked into trying to provide solutions. The researcher
finds it urgently necessary to provide required solutions through this paper hoping for the settlement of this
major issue for once and all.

1.2 STATEMENT OF THE PROBLEM

The main issue that through this paper the researcher wants to discuss upon is the appointment of judges of the
higher judiciary in India giving significant attention to the collegium system and the NJAC.

The researcher wants to highlight the errors in both the collegium system and the NJAC and want to tell why
neither of them is right to appoint judges of the higher judiciary. He also aims to discuss the necessity to create a
different and complete separate system for the judicial appointments which will solve many problems as the
present systems has a lot of error. In case the present system is not properly amended, it becomes urgently
necessary for a new system to take its place.

1.3 REVIEW OF LITERATURE

Judicial Appointments in India and the NJAC Judgment: Formal Victory or Real Defeat by Dr. Anurag
Deep and Shamvabi Mishra, Jamia Law Journal, Volume 3, 2018

The authors divided the article into 7 heads discussing difficulties and differences of policy regarding judicial
appointments, intention of the drafters of Indian Constitution, judicial independence, composition of NJAC and
its composition, drawbacks of NJAC, 2nd1, 3rd2 and 4th3 judges case, composition of collegiums, seniority issue,
judicial review in the matter of appointment of judges, duties of Chief Justice of India.

Merit in the appointment of judges by M.P. Singh, published in ebc-india.com

In this article the author strictly focuses on the merit criteria to be taken for the appointment of judges in the
higher judiciary and also talks about the recommendation to the Supreme Court if it would have been made
giving considerations to the persons belonging to the weaker sections of the society.

Contemporary Challenges to Judicial Reform with Special Reference to Appointment and Accountability
of Judges of Higher Judiciary in India by Ravi Kumar, BHU, 2017

1
Supreme Court Advocates-on-Record Association and another v. Union of India 1993
2
In re Special reference 1 of 1998
3
Supreme Court Advocates-on-Record Association and another v. Union of India 2015
12
Through this article the author discussed about the constitutional permissibility of making an alternate system
other than the collegiums system for the appointment of judges and also discusses about the appointment and
accountability of judges of higher judiciary in India.

National Judicial Appointment Commission an Analysis of NJAC’s effect on judicial independence in

India, Satyam Rathore and Ankita Ruturaj

The authors doing a comparative analysis of judicial appointment in both U.S.A and India talked about the
process and the system in the paper also talking about the need for judicial reforms and its implementation in the
form of establishment of the commission in India. Moreover, the authors also talked about loopholes in the
collegiums system, effects of NJAC on judicial independence and mentioned how the NJAC doesn’t interfere
with the independence of the judiciary.

Judicial Independence and Collegium System in India, Sunita Kaler

Through this article the author discusses about the pros and cons of NJAC and Nature of Indian Collegium. Plus
they threw light on the effectiveness of judicial appointment in maintaining judicial independence and public
confidence in the judiciary.

Judiciary in India, No longer Independent: A critical analysis

In this article the author described the legal scenario of the appointment of judges before and after the NJAC
coming into picture. This article is a comparative critical analysis asking whether the independence of judiciary
is in danger or the NJAC bill has posed some serious threats to the judiciary by allowing the executive
interference in the matters of judges.

Debating the NJAC by Gautam Bhatia

In a series of articles published in more than one site, the author engages the readers in lengthy exhaustive
pieces of material where he tries to discuss the judgments and all the concepts involved in the appointment of
judges in the higher judiciary visiting the cases related and discussing it from every angle giving the reader a
thorough knowledge about the same.

Appointment of judges in higher judiciary: An Interpretational Riddle by Neeraj Tiwari, NLU Delhi,
NJA Bhopal, India, Hidayatullah National Law University, Indian Law Institute, New Delhi,
papers.ssrn.com

In this article the author discusses the constitutional framework for appointment of judges and also talks about
the constitutionality of collegium system discussing about the three judges cases.
13
Appointment of Judges and Judicial Reforms: Need of the hour by Justice Yatindra Singh (Former Chief
Justice of Chhatisgarh High Court), The Leaflet

In this article, the author clearly states that there are reforms required in the judicial appointment system. He
also highlights issues like retirement age, assignment after retirement, establishment of Indian Judicial Service,
abolishment of collegiums system strongly stating that the chief justice should be selected on merit and not on
seniority.

Appointment of Judges to the Higher Judiciary during Pandemic – II, Economic and Political Weekly

In this article the author talks about the recommendations made by the collegiums system to the union
government and discusses on the fact of the number of recommendations implemented and the time it took for
the implementation throwing light on the delay in the appointment of judges.

Supreme Court of India Needs Transparency to Ensure Judiciary’s Credibility.

In this article the author traces the question of judicial accountability citing important case laws and stresses on
the need for a transparent system to deal with matters related to judicial misconduct.

A battle of three A’s published in ‘Economic and Political Weekly, www.epw.in

In this article the author talks about the appointment, autonomy and accountability of appellate courts. It also
discusses the struggle of people of India for democracy, rule of law and justice which are at the grass root level.

Over one-third of judges posts lie vacant in 12 high courts. So much for collegiums by Arvind Kumar,
The Print.

In this article the author focuses on the vacancy of judges in SC and HC’s. The author looks into the trends in
vacancies and questions the responsibility for filling those vacancies.

Recasting the Judicial Appointments Debate: Constitutional Amendment (120 th Amendment) Bill, 2013
and Judicial Appointments Commissioner Bill, 2013, Centre for law and policy research

In this article the author discusses judicial appointment and the weaknesses of bill also giving recommendations
to overcome these weaknesses. The author in this article also explains the power of the president in the
appointment of judges through recommendations.

Centre, SC debate Timelines over Delay in Judge Appointments, www.ndtv.com

14
In this article the matter of delay in the appointment of judges is revisited through discussing the judgments of
SC. Moreover, the judgment including the arguments forwarded was also discussed.

Logic of order over Judges Appointments “flawed”: Ravi Shankar Prasad, www.ndtv.com

In this article the judgment of SC striking down NJAC was questioned also asking why the representative of the
PM i.e. the law minister cannot be trusted with the appointment of judges whereas the PM is trusted with the
appointment of constitutional authorities such as Chief Election Commissioner and Chief Vigilance
Commissioner.

A case of self-selection: Judicial Accountability and Appointment of Judges, Raju Ramachandran

In this lecture by Raju Ramchandran, the collegium system was strongly criticized discussing the basic structure
theory, appointment of judges and the striking down of NJAC. Moreover, it imposed a significant question that
should judges self-select?

The NJAC Act – Is It the Perfect Remedy? by Ameya Vikram Mishra and S. Ananth Balaji,
www.manupatra.com

Here the authors have neatly explained the drawbacks in the NJAC as well as the collegiums system and
suggested steps to improve the NJAC.

Collegium’s actions show that the NJAC which was struck down four years ago is back, with a vengeance
by Justice Madan Lokur, The Indian Express, October 16

In this article the learned judge has focused on many judicial appointments which are still surrounded by
controversy and many other appointments which were delayed due to this tension between the executives and
the judiciary.

The National Judicial Appointment Commission – A Critique by Shambhu Sharan and Gunjan Chabra,
Singhania and Partners,

In this critical analysis of NJAC the authors try to find whether the NJAC was a right solution to the long due
unsolved problems posed by the collegiums system. The authors analyses how the NJAC was able to solve
some issues while still creating room for certain new issues.

With SC reforms stuck in time warp, it would bode well for collegium to finalise 'Memorandum of
Procedure' soon by Ritwika Sharma published in Firstpost., 20 March 2021

15
Here the author have well explained the problem that is happening with the present collegium system and also
mentions how the NJAC was not given an opportunity at least to work. Plus, significant stress in this article was
given to the Memorandum of Procedure and the urgent need to finalize it soon.

Whether the judiciary delivers on its promise or not depends on who gets appointed as judges, The
Leaflet, 21 December 2020

This is a remarkable article where the author mentions about the Justice Venkatachaliah’s famous regime where
he transferred not less than fifty judges because their relatives were practicing on the said courts where the
fellow judges were also present. Plus the author analyzes well the present situation and goes into the topic of
whether the judges have delivered on their promises or not. Moreover from the lawyers present in the post
independence era to this modern day of budding lawyers, she very well explains how these lawyers have shaped
the law and contributed to Indian legal field in many different ways. This particular article according to me is a
must read to understand the role of lawyers and the contributions they made to this country.

India’s higher judiciary lacks professional diversity. It’s now a monopoly of lawyer-judges by Rangin
Pallav Tripathy, The Print, 11 June 2021

Here the author focuses on important underrated matters which are often ignored while such as lack of
professional diversity, shortened tenure, and professional homogeneity. The author tells us how all this has led
to not having more judges in Supreme Court who have experience in subordinate courts and also focuses on
things which should be taken into consideration while appointing judges to the higher judiciary.

Why High Court Judges Are Transferred: Justice Chelameswar’s Account by Kaushik Vaidya,
Bloombergquint

Here the author brings to light the views of Justice Chelameswar in an interview with Bloombergquint where
the author states how the author being even a former member of collegium didn’t get why the transfers of High
Court judges happen and how there are no strict established procedures.

Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts? By Madan B Lokur, THE WIRE

Here the author tells us why it is getting difficult to bring lawyers from Bar to Bench giving many reasons
which he felt necessary to immediately looked into by the judiciary advising the it to do something in regard to
fill up vacancies and bring more good lawyers to accept the judgeship when offered.

Collegium split over selection of woman judge to Supreme Court by Dhananjay Mahapatra, The
Economic Times, 18 March 2021

16
Here the author informs regarding the possible appointment of a lady judge into the Supreme Court who would
able to become the 1st female Chief Justice of India but it didn’t happened that way because of obvious Supreme
Court Collegium’s decision and seniority and other factors which stopped it from happening.

Justice Arun Mishra’s tenure reflects deep systemic problems in the Supreme Court by Sruthisagar
Yamunan, Scroll.in

It is a remarkable article where the author has done extremely well in giving a detailed account of what went
when the Justice was on the bench of the top most court in the country and how his tenure was marred with
controversy.

Appointment of judges to Supreme Court, high courts often wracked by controversy by Prabhu Chawla,
INDIA TODAY

Here the author focuses on a series of judicial appointments to the higher judiciary which were made were
surrounded by controversies and speculations and many of which were made favoring political parties.

Former Supreme Court judges discuss the influence of caste in judicial appointments by Avinabh
Chandrachud, The Caravan

It is one of the best articles one might come across if one wants to know the appointments made to the higher
judiciary which were thought by many to be based on caste system. The author here gives a very clear
description of what’s really going on behind the back doors of Supreme Court Collegium and gives a descriptive
account of how some contented that the caste based appointments were prevailing in the higher judiciary from a
very long time while other denied anything sort of that happening – based on the statements given by former
judges who came forth and revealed almost everything what went during their tenure with a series of interviews
with late Professor Gadboi.

The Standards Of Basic Structure: Questioning The Master Of The Roster by Ashit Srivastaba and
Shaileswar Yadav, The Leaflet

Not many talk about the job of the Chief Justice of India as Master of Roster which is one of the powerful
powers given to the Chief Justice. But thankfully the authors here brought the issues associated with the very
position under the microscope and analyzed very well how Chief Justice Dipak Misra as Master of Roster faced
a lot of criticisms and also described how the other Chief Justices before him had dealt with such an important
power.

1.4 EXISTING LEGAL SITUATION

17
The present collegium system traces its origin to the third judges case and not to any constitutional provision to
be specific. Before the collegium system came into picture Article 124(2) and 217 of the Indian Constitution
dealt with the judicial appointments of higher judiciary where the role of the judiciary was mere a consultative
one and the major power was in the hands of the executive head i.e. The President of India.

Before even beginning its function, the NJAC Act was struck down as unconstitutional4 reinstating the old
collegium system by adding another 2 judges in the collegium system trying to show that the primacy of CJI is
diluted through which the primacy of the collegium as a whole will take precedence.

In the present scenario the collegium system awaits changes and the NJAC or any other if to be formulated in
future for the judicial appointments of the higher judiciary needs to be properly formulated with enough
consideration given to different principles required.

1.5 OBJECTIVE, SCOPE AND LIMITATIONS OF RESEARCH

1.5.1 OBJECTIVE

• To learn about the working of the collegium system and the NJAC.
• To determine the effectiveness of each of the systems on judicial appointments.
• To identify barriers which prohibit these two systems to deliver the required results.
• To assess and understand the gravity of the situation we are in due to the ongoing conflicts.

1.5.2 SCOPE

This study discusses the principles and theories upon which the methods of the two systems are based. It
evaluates the methods adopted by both of these systems. It also looks into problems which keep happening due
to the ongoing conflicts trying to give accurate solutions targeting each problem. Cases and articles and books
igniting important debates are also looked into. Moreover, it tries to cover everything that is related to the
judicial appointments of judges of higher judiciary giving special reference to NJAC and collegium system.

1.5.3 LIMITATIONS

This research is limited only to the judicial appointments of judges of the higher judiciary (appointment in
Supreme Court and High Courts only) in India. This research does not talk about the appointments of judges in
lower courts or any other commissions. Similarly it does deal with the process adopted for judicial appointments
outside India.

4
Supreme Court Advocates-on-Record Associations and Another v. Union of India 2015
18
The research only focuses on the cases, principles, findings, reports, provisions under any particular law and any
other laws which only deal with the process of judicial appointments. Anything not related to judicial
appointments is not at all entertained in this paper.

1.6 HYPOTHESIS

This study hypothesize that the huge errors in both the systems frustrate any modifications to be done to either
of them which in result requires the establishment of an entire new system for the appointment of judges of the
higher judiciary in India.

1.7 RESEARCH QUESTIONS

• Which of these two systems (NJAC and Collegium System) is right for the judicial appointments in the
higher judiciary?
• Is there a need for the establishment of a complete new system for the judicial appointments?

1.8 RESEARCH METHODOLOGY

The researcher has adopted a doctrinal research method where the primary and secondary sources were
thoroughly looked into and important parts/sections which are helpful to prove the researcher point of view and
to answer the question posed by this paper were taken out and brought under the light.

1.9 CHAPTERISATION

The research work is divided into various chapters focusing on key parts which are again further divided into
many small essential parts whose study is necessary to get the result that the research paper aims to get.

Chapter 1 – In this chapter the researcher throws light on the introduction, research problem, literature review,
existing legal situation, objectives, scopes, limitations, research questions, and hypothesis and research
methodology.

Chapter 2 – In this chapter the researcher analyzes in detail the entire working of the collegium system and
NJAC. Moreover in this chapter the principles adopted and merits and demerits of both the system were
discussed.

Chapter 3 – In this chapter the problems which arose due to the conflict within the bench, between the bar and
bench, between the executive and judiciary as well as the issues which arose as a result of the decisions of the
collegium and many other problems is discussed.

19
Chapter 4 – In this chapter the researcher highlights and analyses in detail the cases and throws light on various
important remarks and findings made by learned advocates, judges, scholars and jurists regarding the judicial
appointments.

Chapter 5 – In this chapter the researcher concludes his research by overall summarizing the research work and
gives suggestions to solve the problem.

1.10 SOURCES

The primary and secondary sources have been taken into consideration for conducting the research work.
Constitution, cases and rulings of the judges have been looked into while also giving attention towards many
articles in different journals. Moreover important contents of certain books which were written by famous
authors and jurists on the given subject matter were widely discussed in this paper.

20
 CHAPTER - II

ANALYSING THE COLLEGIUM SYSTEM AND NATIONAL JUDICIAL

APPOINTMENT COMMISSION IN DETAIL

2.1 COLLEGIUM SYSTEM

2.1.1 HISTORY

The collegium system of the Supreme Court was birthed by the decision in the Second Judges case5. In this case
the honorable Supreme Court shifted a significant power regarding the appointment of judges of the higher
judiciary from the hands of the President to the Chief Justice of India giving primacy and importance to the
opinion of Chief Justice of India over the President.

The collegium system so formed after the judgment was basically a judge made system and till date has not
been found its existence in any of the statute. However the collegium system also went through a series of
developments over the years.

2.1.2 COMPOSITION

The initial composition of the collegium was comprised of only three senior most judges of the Supreme Court
including the Chief Justice of India. The composition changed from three to five in the Third Judges case (In
re Special Reference 1 of 1998) and also the honorable court has cemented the position and role of judiciary in
the appointment procedure. From the third judges case to till date the composition haven’t changed further.

2.1.3 WORKING

a) Regarding the appointment of Chief Justice of India

The basic method of selecting Chief Justice of India has been based on the seniority factor always. The outgoing
Chief Justice of India would always recommend the name of his successor as per practice. And it is the
President who will appoint the Chief Justice of India as well as other judges to the Supreme Court.

b) Regarding the appointment of Supreme Court Judges (Not Including the Chief Justice of India)

The proposal is first initiated by the Chief Justice of India. The following persons are then consulted - the rest of
the collegium members, the senior most judge of the High court is also consulted from which the recommended
person hails. Then the persons consulted need to record their opinion which forms the part of a file. The
5
Supreme Court Advocates-on-Record Association v. Union of India (1993)
21
Collegium then recommends the name to the union law minister who is tasked with forwarding the file to the
Prime Minister who is tasked to advice the President on such appointment.

c) Regarding the appointment of Chief Justices of High Courts

The Chief Justices were appointed on a policy that the birth state and the state in which they will be appointed
should be different. The collegium takes over the job of elevation.

d) Regarding the appointment of High Court Judges

The Collegium System comprising of Chief Justice of India and two other senior most judges recommends the
names for the judges of the High Courts. In here the proposal is initiated by Chief Justice of High Court
concerned with the consultation of two senior most judges. The recommendations were sent to the Chief
Minister for the concerned state who advises the Governor to send the recommendations to the Union law
minister.

e) Regarding the transfer of the Judges from High Courts

There must be the appointment of the replacement of the High Court Chief Justice in case he/she is transferred.
The Chief Justice of India’s words will be final in case of transfers and the consent of the judge getting
transferred is not required. But the transfer made must be made in the interest of the public.

2.1.4 PRINCIPLES GOVERNING THE COLLEGIUM SYSTEM

1. The Basic Structure Doctrine – Some of the principles like independence of judiciary, some parts of the
preamble, etc together form the basic structure of the constitution which can never be altered in any way. The
basic structure first was formally recognized in Kesavananda Bharti’s case. 6 Later on in many cases the
honorable Supreme Court of India has upheld and preached the very words of the doctrine. Although the
doctrine has not anywhere been expressly mentioned in the constitution yet, still it is used widely to decide
cases based on the important areas of constitutional law. Moreover the honorable Supreme Court has in many
different landmark cases till date has included various principles and concepts under the basic structure giving
them maximum protection available due to which such principles cannot be tampered with.

2. Supremacy of the Constitution – This concept is well known to everybody which in simple terms means that
there shall be always the supremacy of nothing and no one but the constitution only and the very words of the
constitution must be obeyed no matter what. One cannot simply go against it as it is the supreme law of the land
and every other institution/entity derive their respective powers from it only. Even we have seen when a statute

6
Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461
22
violates the provisions of the constitution it is struck down. The same goes for any institution or authority who
exceeds his power more than what is authorized by the constitution then such acts become invalid.

3. Importance of Chief Justice – Mainly in affairs related to the judiciary in the country, the senior most officer
who mostly reserve the final say is the Chief Justice of Supreme Court. Similarly in matters related to the
selection and appointments of judges in the higher judiciary the Chief Justice is given huge importance as who
else literally would be more capable and right person for the job other than the Chief Justice who has so much
more knowledge about such procedure and system.

4. Independence of the Judiciary – Independence of the judiciary generally means that there shouldn’t be any
unnecessary interference of any other organs of the government in the affairs of the judiciary and it must be
allowed to conduct its business freely and with the independence it has been given by the constitution. This
particular principle has been for many years now been the issues in many cases and many scholars debated
whether the independence of the judiciary should or should not be included in the basic structure but the apex
court has in majority of the cases defended the principle making it clear that it is one of the most important part
of the basic structure and hampering it means hampering the basic structure of the constitution.

5. Doctrine of Revival – The doctrine before the fourth judges case was never contested before but only was
assumed in different cases such as Minerva Mills v. Union of India7, Sanjeev Coke Manufacturing v. Bharat
Coking Coal.8 9 This doctrine revives the prior law and makes it applicable when the constitutional amendment
is stroked as unconstitutional.

2.1.5 MERITS OF THE SYSTEM

The followings are the merits of the system –

a) The system gave primacy and importance to the judgment or opinion of Chief Justice of India. It is a very
good practice as Chief Justice who leads the judiciary due to his position mostly is known to the whole system
and also knows the whole system minutely and he is vetted by many starting from government, members of
High Courts to members of Supreme Court for his position for the top position in the top most court in the
country.

b) The system protected the principles enshrined under the basic structure of constitution by giving priority
always to the independence of the judiciary. As it is stated by many over the years the judiciary is well equipped
in selecting judges as they minutely know how the judges at different courts and High Courts work and all the

7
1980 AIR 1789, 1981 SCR (1) 206
8
1983 AIR 239, 1983 SCR (1)1000
9
Gautam Bhatia, Debating the NJAC: The Philosophy of Revival, Indian Constitutional Law and Philosophy, 15 June 2021
23
other things related with that. So as they their sector better the judiciary feels that it is felt strongly by many that
the judiciary can do this job much better than the executive.

2.1.6 DEMERITS OF THE SYSTEM

The following are the demerits of the system –

a) The system was blamed for not being transparent. It was believed by many that the system reeked of
favoritism and nepotism. It was somewhat true in few cases and even the members of the top most country have
felt this way.

b) Transfers made through the system were often made according to the whims and fancies of the system as
alleged by many members from the bar. Due to this strikes at many times happened disturbing the daily
businesses of the courts and causing more delay in getting done with piles of cases pending.

c) The system wasn’t able to fill up the vacancies in many High Courts for years due to which a lot of cases
remained pending and the justice delivery was late. This also invited strong criticisms from the bar and bench
also in many states. And many practicing lawyers took the matter to the media and some even frustrated by this
initiated week long strikes as due to unavailability of judges increased the number of pending cases.

d) The appointments made were not always based on merit. The other criteria which were included were not
properly mentioned and no separate rules were there for all these different criteria. Moreover there was a lot of
confusion while deciding on the basis of such criteria.

e) There was monopoly in appointments as often seen and there was need for huge change in the system. Many
question the process but in one way or other the judiciary with its remarks has always silenced them.

2.2 NJAC

2.2.1 HISTORY

The NJAC Bill as passed by Lok Sabha with a two-third majority on 13.08.2014 made way for the selection and
appointment of judges through a new system which intended to replace the two decades long existing the
collegium system. Again with a two-third majority in Rajya Sabha the Bill was passed on 14.08.2014 with the
99th Constitutional Amendment Bill, 2014. The bills got approved more than 15 state legislatures and finally

24
received presidential nod on 31.12.2014.10 And finally from 13.04.2015 the NJAC Act were to begin its
operation as published in the Gazette of India.11

2.2.2 COMPOSITION

The NJAC was composed of -

a) Chief Justice of India who was to be the chairperson of the commission (also to be included among members
of the commission)

b) two of the senior Supreme Court judges who are next to Chief Justice of India as members

b) union law minister also as a member

c) two eminent persons also as members who are to be nominated by a separate committee comprised of Prime
Minister, Leader of Opposition in the House of People and Chief Justice of the country and where there is no
leader of opposition then the leader of single largest opposition party in the House of People.

It was also mentioned that one out of two eminent members to be nominated from amongst persons belonging to
scheduled castes, scheduled tribes, other backward classes, minorities or women. And as stated by the Act the
eminent persons were to be nominated for a period of three years and were not to be eligible for re-
nomination.12

2.2.3 WORKING

Although the NJAC was struck down even before it has begun, the new commission on judicial appointments
was formed with the intention to curb out favoritism, increase transparency, insert judicial accountability,
balance power and conduct the appointment business in a smooth and fair way.

a) Procedure adopted by NJAC for filling up of vacancies

• In case of any vacancies in Supreme Court or High Courts, a reference will be made to the NJAC by the
central government.
• Within thirty days of the Act coming into the force, the NJAC will be notified of the vacancies present at
such given time.
• References to be made to the NJAC, six months prior of a vacancy arising out of the completion of a
term and within thirty days for vacancies arising due to death or resignation.

10
Daily Excelsior, Prez nod to bill on Judges, DAILYEXCELSIOR.COM, 1 January,2015
11
The Gazette of India
12
THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014, 13.08.2014
25
b) Procedure for Selection of Supreme Court judges

• Seniority factor to be taken into consideration for the appointment of Chief Justice of India and
accordingly names shall be recommended by NJAC provided that such person is fit to hold the office.
And for the appointment of other judges of the Supreme Court, the names of persons which shall be
recommended by NJAC to be based on their ability, merit and other suitable criteria as per the rules.
• If any two out of six members do not agree on the recommendation then it shall not take place.

c) Procedure for Selection of High Courts judges

• The names of persons recommended by NJAC for the appointment of Chief Justice of High Courts shall
be based on seniority factor as well as other factors such as ability, merit and other suitable criteria as
per the rules.
• For the appointment of other High Court Judges, the Chief Justice of the concerned High Court as well
as the commission shall nominate persons. The commission shall take the view of the Chief Justice
concerned to whom the recommendations have been sent. The Chief Justice of such High Court shall
consult other two senior most judges of the same High Court and any other judges or advocates specified
in the regulations. Moreover the NJAC will be consulting with the concerned Chief Minister as well as
Governor for such state before it makes any recommendations.
• If any two out of six members do not agree on the recommendation then it shall not take place.

d) Transfer of Chief Justices and judges of other High Courts

Transfer shall be made on the recommendation of NJAC.

e) Power of the President to require reconsideration

The NJAC might be needed by the President to reconsider the recommendations made by it but if the same
recommendation is again made by the NJAC after such reconsideration then the President have to give it a green
signal.

2.2.4 THE CHANGES MADE BY 99TH AMENDMENT

The amendment inserted new Articles to the Constitution namely

a) Article 124A in which the composition of the NJAC was specified as already mentioned above

b) Article 124B in which the particular duties of the commission was specified which is also mentioned above.
26
c) Article 124C in which the Parliament was given power to make laws regarding the procedure of appointment
of Chief Justice of India, other judges of Supreme Court, Chief Justices and other judges of High Court. Plus,
the Parliament was also given power to delegate the procedure of judicial selection and appointments to
NJAC.13

The following were the changes brought by the amendment in some other Articles of the constitution which are
related with the judicial appointments –

a) Changes were made to Article 127 which states about the appointment of ad hoc judges. Now as per the
amendment the commission after the consultation with the President was to request for an ad hoc judge in
regards to the reference made to it by the Chief Justice of India.

b) Under Article 128 now the power to request the attendance of retired judges to be at the sittings of the
Supreme Court was shifted from the Chief Justice of India to the commission.

c) Article 217 went through a change wherein certain persons namely the Governor of the state and the Chief
Justice of High Court along with the Chief Minister for the concerned state as per the amendment are to be
consulted in matters relating to the appointment of a judge to any High Court. Under this change the
appointment of the Judges of High Courts can be made by the President on the recommendations of the
commission itself. One can argue that the Chief Justice of India is part of the commission but he shall not to be
consulted individually anymore like the case before the amendment.

d) Article 222 (1) went through a change where now judges can be transferred from one High Court to another
by President on the recommendations of National Judicial Appointments Commission. Here also the Chief
Justice of India was not to be individually consulted on such matters anymore like before.

e) Changes made to Article 224 required the President to consult NJAC before any appointment made under (1)
and (2) of the said Article. Here like the situation before the President can not appoint additional or acting
judges on his own anymore and needs to consult the commission before any such appointment being made.

f) Under Article 224A after the amendment, the National Judicial Appointments Commission now has to take
over the role of Chief Justices of High Courts in regards to request any judge of their individual courts or judge
of any other High Court to act as a judge of the same high court where the chief justice making request is a part
of.

g) sub clause (a) in clause (2) of Article 231 was to be omitted.

13
THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014, 13.08.2014

27
2.2.5 PRINCIPLES AND CONCEPTS GOVERNING THE NJAC

1. Checks and Balance – The concept of checks and balance comes with the application of doctrine of
separation of power. Check and balance is basically needed to prevent the abuse of power. As there was no
monitoring authority involved that was to put limitations on the unconstitutional actions of the judges, that’s
why the NJAC was made intending to put checks on the collegium system and try to maintain a balance of
power.

2. Judicial accountability – Judicial accountability in layman terms means that the judges should be accountable
or responsible for the judgments they pronounce. Judicial accountability through NJAC according to many
scholars would have been brought back to the fold which was absent before as there was no other entity
involved in the appointment process other than judges themselves and due to which the actions of those judges
could not have been questioned.

3. Transparency – The NJAC was also thought to bring more transparency with the involvement of executive
and members of public with the judiciary. Transparency here means the procedure and criteria would be crystal
clear and due to which the general public too can understand the whole system much better.

4. Public Confidence – Through the working of NJAC the public confidence in the system would be restored
again which was lacked in the collegium system. This public confidence was thought to be increased by the
involvement of not only members from a particular organ but different other entities who can bring the best
people for the job through a collective wisdom.

5. Principle of Consultation – The principle of consultation states that the general body of people must be
included or consulted while making decisions which might affect them. Through this principle which is a key
element of the democracy concept, the system was made intending to include eminent persons (members of
public) in the selection and appointment process of judges. This was the view of many scholars.

2.2.6 THE MERITS OF THE SYSTEM

The followings were some of the merits of the NJAC –

a) The judges were to be answerable to members of other organs of the government as well as to the public.
There would have been an increased transparency and not a single tier of government would have been solely
blamed for mishandling the entire process of judicial appointments which would have eventually reduced the
conflict between the executive and the judiciary.

28
b) The appointment process would not have delayed as compared to the appointment made by present system
because not only judiciary but members from the public (eminent persons) as well as law minister would be a
part of it now.

2.2.7 THE DEMERITS OF THE SYSTEM

a) Through the same issue of appointment of judges of the higher judiciary the legislative and the judiciary have
been continuously playing with the power and authority of the President. At some point the powers are taken
away and again another set of powers given which makes the whole scenario very frustrating for a President of
the country who is basically the head of the country. It is in a way very derogatory for the position.

b) The NJAC Bill has in it that the judges of Supreme Court and High Courts were to be appointed as per
regulations and on the basis of ability, merit and any other suitable criteria. Here it has failed to mention what
comes under the “other suitable criteria” and how one can be made judge based on that. Nowhere in the bill
such term has been clearly defined. The bill was silent on this part.

c) The legislature has crossed its limits again when the Parliament through Article 124C has delegated the
matter of judicial appointments which was earlier done by the judiciary to the legislative which eventually
violates the doctrine of separation of powers.

d) The NJAC Act violates the independence of the judiciary in bringing the involvement of executive back to
the fold again.

e) The NJAC Act was also silent on the nomination criteria of eminent persons. The only thing mentioned about
them is the category from which they will be nominated and the term for which they will be the member of the
commission. Other than this the main factor was absent which the criteria and procedure of the nomination.

29
 CHAPTER - III

ISSUES ARISING OUT OF MANY DIFFERENT CONFLICTS, ALL

RELATED WITH THE JUDICIAL APPOINTMENTS OF JUDGES IN THE
HIGHER JUDICIARY IN INDIA

The judicial appointments to the higher judiciary in the country are most of the times surrounded by
controversy.14 Sometimes it is the Collegium System or the whole judiciary and other times it is the executive
who invite speculations and lot of negative criticisms due to their actions.

Followings are the mentions of some of the problems which arose due to the growing tension between the
judiciary and the executive, between the Bar and Bench, within the Bar and within the Bench as well –

3.1 PROBLEMS ARISING DUE TO THE DECISIONS OF THE COLLEGIUM

It was reported by “The News Minute” on 5th February 2018 that there were weeklong strikes in Karnataka over
judicial vacancies. Many practicing advocates went on hunger strike agitated by the very fact that Karnataka
state has a huge number of vacancies in the High Court. According to the former Advocate General B V
Acharya out of the 62 judges post only 24 have been filled and according to a senior lawyer DLN Rao several
requests were made to the Chief Justice and Chief Minister of the state regarding the appointments but all
efforts made seemed to be a waste when no appointments were made15

On 11 September 2019, the newspaper article in “The Hindu” reads, “Lawyers protest against Chief Justice
Tahilramani’s transfer”. According to the report more than 3000 practicing lawyers boycotted court proceedings
condemning the transfer of Chief Justice V.K Tahilrahamani to Meghalaya High Court by the Supreme Court
Collegium. The apex court was again blamed for not being free from bias and it was also alleged that the act of
the apex court showed that there is the interference of central government with the judiciary.16

In 2017 the collegium transferred senior most judge of Karnataka High Court Justice Jayant Patel to Allahabad
High Court. There were many who thought that the elevation of the justice will take place but it hasn’t happened
that way. The Gujarat High Court Advocates’ Association and the Karnataka State Bar Council has condemned
such act of the collegium and boycotted court for a day.17

14
Prabhu Chawla, Appointment of judges to Supreme Court, high courts often wracked by controversy, India Today, 30 November
1986
15
Theja Ram, Karnataka HC lawyers go on week-long hunger strike over judicial vacancies, The News Minute, 5 th February 2018
16
Staff Reporter, Lawyers protest against Chief Justice Tahilramani’s transfer, The Hindu, 11 th September 2019
17
Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability
30
The lawyers in Karnataka and Gujarat expressed their dissatisfaction with the decision of the collegium, to
transfer Justice Jayant Patel to the Allahabad High Court from the Karnataka High Court. He was the second
senior most judge of the Karnataka High Court at that time and was in line to be the Chief Justice of the same
High Court but this was prevented from happening due to the collegiums order. 18 It was his second transfer and
his resignation didn’t make the situation easy for the relationship between bar and bench.

The New Indian Express on 17th June reported that Odisha High Court Bar Association is all set to continue its
protest on the appointments of absentee lawyers as judges. The association members were agitated over the
elevation of a lawyer as a judge who has filed only four cases in the state High Court in some couple of years.
Elevating such a lawyer to the position of a judge is detrimental to the interest of the eligible competent lawyers.
Moreover the association requested the intervention of union law minister, Prime Minister, President and Chief
Justice of India in the matter.19

In 2017 the collegium transferred senior most judge of Karnataka High Court Justice Jayant Patel to Allahabad
High Court. There were many who thought that the elevation of the justice will take place but it hasn’t happened
that way. The Gujarat High Court Advocates’ Association and the Karnataka State Bar Council has condemned
such act of the collegium and boycotted court for a day.20

3.2 PROBLEMS ARISING OUT OF THE CONFLICT BETWEEN EXECUTIVE AND

JUDICIARY

The transfers of judges from one High Court to another and the elevation of some to the apex court during the
Indira Gandhi regime was considered a critical period for the judiciary. Many still believe it was this period
when the independence of the judiciary affected greatly and the executive took control over the judicial
appointments completely giving no power in the hands of the judiciary.

Appointment of Chief Justice A N Ray and Chief Justice M H Beg many say to be done carefully to fulfill the
government agendas and this why the government have also wanted to control the judicial appointments so that
it can get judges in the bench who will be lenient to the government and there will be no problem or obstacle for

Economics and Political Weekly, 19th February 2020

18
Sruthisagar Yamunan, Supreme Court collegium should explain why Justice Jayant Patel’s transfer was in public interest, Scroll.in,
29 September 2017
19
Staff Reporter, Odisha HC Bar Association to resume protest against appointment of absentee lawyers as judges, The New Indian
Express, 17th June 2019
20
Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability
Economics and Political Weekly, 19th February 2020
31
the government.21 It is one of the old tricks in the book used by more than one government which is why the
executive influence over the judicial appointments is greatly feared by most members in the legal fraternity.

In the late August of 2019 the then Chief Justice of India has written to the law minister about the number of
recommendations made by collegium which were still pending at that time and the collegium couldn’t be able to
consider the appointment of the 10 persons as some information from the government was awaited at that
time.22 It was not only this instance but there are still many alike where we have seen that the courts have tried
in every way asking central government to make haste in the appointments but the centre government have
continuously citing various reasons have delayed the appointments.

The subject of elevation of Justice Kurian Joseph to the apex court was marred by controversy when many
blamed centre for delaying the judge’s appointment as many believed that the centre was holding a grudge
against the judge for his decision against the Modi government and not allowing Presidents Rule to prevail in
Uttarakhand in 2016.23 It was the contention of many that the government wants judges who decide in favor of
the government’s agenda and when any judge acts against the governments wishes there’s a great chance that if
the said judge is recommended for elevation then the government will sit on his/her file for months resulting in
delay in the appointment procedure.

The then Chief Justice of Karnataka High Court Justice Dinesh Maheswari was contacted directly by the
executive regarding the elevation of district and sessions judge P Krishna Bhat. 24 This kind of direct
conversations between the executive and judiciary regarding the judicial appointments should not happen as it
often leads to speculations among many assuming that both the executive and judiciary are colluding and
crossing many lines which they shouldn’t.

On April 8 the collegium recommended Justice Vikram Nath name to be appointed as the Chief Justice of
Andhra Pradesh High Court but the government didn’t do as per the direction and asked the collegium to
reconsider it and then on August 22 the same justice was recommended for the appointment for the Chief
Justice of Gujarat. Due to the non disclosure of reasons of recommendation, elevation or transfer the procedures
adopted by the collegium is often surrounded by controversy.

21
Faizan Mustafa, Collegium system is a lesser evil than the NJAC, Hindustan Times, 28 October 2015
22
Madan B Lokur, Collegium’s actions show that the NJAC which was struck down four years ago is back, with a vengeance, The
New Indian Express, 16th October 2019
23
Aditya AK, Will the Centre (again) defy the Collegium’s call to elevate KM Joseph J?, Bar and Bench, 14 February 2018
24
Aditya AK, Bonhomie between Judiciary and Government sounds the death knell to Democracy; Chelameswar J in letter to CJI
[Read Letter], Bar and Bench, 29 March 2019
32
The same thing happened with the recommendation of Justice Akil Kureshi.25 This looks fishy now. Isn’t it?
One might wonder what the collegium and the government are up to. The executive also points a finger at the
judiciary for many conflicts between them but it clearly forgets that while pointing a finger at the other, four
other fingers are still pointed towards it.

On September 5, Justice Irshad Ali’s name was recommended by the collegium to be a permanent judge in the
Allahabad High Court after an overall assessment and after duly completing all the procedures needed but the
government rejected this recommendation without furnishing any reasons and extended his term as an additional
judge by six months.26 This shows that the government has no regards for the direction or order as well as
respect for the top most court in the country and with this attitude there is no doubt that it will surely affect the
relation between the executive and the judiciary.

The Supreme Court and the union government since the passing of the NJAC judgment have not been agreeing
on the same thing regarding the appointment procedure of judges of the higher courts which makes it very
difficult to draft the Memorandum of Procedure for the selection and appointments procedure for the same.
There are many factors in which both the entities agree on completely different things due to which the MOP
gets delayed.27

There needs to be a time frame in which these appointments have to be done. Too much delay is frequently seen
in the judicial appointments. The blame game still continues among the central government, the High Courts
and the Supreme Court’s Collegium.2829Especially between the centre and the collegium there’s a continuous
process of sending and receiving recommendation goes on every once in a while and many of such
recommendations stay in the pipeline much more longer due to which the further recommendations also gets
delayed response due to the pile of recommendations not being properly looked into or dealt with.

Too much controversy often has surrounded a case and sometimes such case becomes one of the main reasons
of conflict between judges and even with the executive sometimes. Such was the case of Judge Loya’s death
case where the judiciary was blamed for not dealing with the case properly by many members while it became
critical for some judges especially the Chief Justice of the country, the then Chief Justice Dipak Misra again was
under the spotlight as many believed that impeachment proceedings against him was initiated intending to take
revenge when the apex court cleared the name of Amit Shah in the Judge Loya’s death case.

25
Supra 19
26
Supra 19
27
Ashok Bagria, Centre vs Judiciary: Key Reasons for Conflict Over Appointment of Judges, News18, 29 November 2016
28
Dhananjay Mohapatra, High Courts have delayed appointment of judges: Government to Supreme Court, The Economic Times, 15
September 2016
29
Scroll Staff, ‘High Courts should reform first’: Attorney general on delay in appointing judges, blames collegium, scroll. in, 18
February 2018
33
In my point of view when there’s already too much speculations and interference has been already done by the
media into such a sensitive issue, one need to think before speaking or doing something which can hurt
sentiments of the grieving family. And when the apex court after much deliberation has given the judgment then
why to make so much fuss about it? Generally in these cases what happens is that in the battle of blame game
the innocents get caught in the crossfire.

Chief Justice of India, Justice N V Ramana when he was second in line to be the senior most judge of the
country suffered reputational damage as he was accused of interfering with the business of High Court as stated
in a letter written by Chief Minister Jagan Mohan Reddy to the then Chief Justice of India, Justice S A Bobde. 30
We all know how a judge of Supreme Court especially if he/she in collegium has more power over the
appointments and business of his parent court. So, the allegations against Justice N V Ramana in interfering in
the matters of his parent court are very serious in nature now especially when he is heading the top most court in
the country.

Time and again we see that the members of the collegium of the past and members of the judiciary at large have
expressed their genuine concerns over the judicial appointments conducted over the years and stated at many
occasions how the entire process lacks proper established rules, transparency and accountability. But we have
not seen many members of the ruling governments at the centre over these years that try and condemn their own
actions for the delay in the appointment procedure. Centre needs to check its actions too.

3.3 PROBLEMS ARISING DUE TO THE TENSION BETWEEN BAR AND BENCH

There are also cases where even the judges of the apex court were included in the blame game for deciding on
cases favoring their relatives who are practicing lawyers in the Supreme Court and the High Courts due to
which many members of bar felt that it is necessary to transfer judges out of the such courts where their
relatives are practicing.31

The then Chief Justice of India Justice Venkatachaliah was one of the remarkable judges who transferred not
less than fifty judges due to those judges being present in the courts where their relatives were practicing. 32

3.4 PROBLEMS ARISING OUT OF THE TENSION WITHIN BENCH

In the matter of elevation the Supreme Court Collegium’s decision is “arbitrary and whimsical” as believed by
many. The matter of elevation of Justice Khanna even the members of the bench has expressed their concern
30
Sruthisagar Yamunan, At heart of Jagan Reddy vs Justice Ramana battle is India’s collegium system for picking judges, Scroll.in, 12
October 2020
31
Manoj Mitta, Charges of nepotism, corruption and politicking continue to dog judiciary, INDIATODAY, 31 March 1995
32
Indira Jaisingh, Whether the judiciary delivers on its promise or not depends on who gets appointed as judges: Indira Jaising, The
Leaflet, 21 December 2020
34
stating that the elevation would send a wrong signal and the judges who are above in the seniority list than
Justice Khanna should not be left out.33 But we have many times seen that seniority factor have also ignored in
certain cases. And it is also true that nobody knows what goes on behind the closed doors and how they decide
upon a particular given name.

Justice Chelameswar in an interview with BloomberQuit said that he being a former member of the collegium
system has not been able to understand the reason for transfer of judges. He even mentioned about how the
recommendations are made and how most of the times no one questions such recommendations not even the
government. This often hampers the credibility of institutions. This also creates rift between the bar and bench
when lawyers start to protest these transfers.34 This makes the whole business of collegium more unclear.
Moreover these kind of statements by former members of collegium can and always have put judiciary in the
limelight inviting people to question the entire judiciary which is not right.

When the recommendation of a lady judge (Justice B V Nagarathna) to the supreme court was proposed then it
was argued that the elevation and appointment will affect other who are senior to her in High Courts and as
there was a lot of issues attached with it as it can also increase the number of judges belonging to a particular
area or high court more.35 So one does not actually get that what is this procedure that is going on within the
bench and is there any concrete procedure for their self-selection or not.

Another occurring ill practice is believed to be happening among some members of executive and judiciary in
the “scratching of each other’s back” for favors. Justice Arun Mishra and Justice Vishal Mishra were the judges
which surrounded by this controversy specially when the elevation of the later happened when he was not even
45 years of age. His brother Justice Arun Mishra was also known to be the go-to person for sensitive political
cases even though he was not senior judge of the apex court at that time.36 As the famous judge dealt with so
many important and sensitive cases many believe it is the result of the Chief Justice’s favoritism card in play
which helps the judge in getting these cases.

The then Chief Justice of India, Justice Dipak Misra faced huge criticisms from his four colleagues in Supreme
Court when the four judges has expressed their concern for the judiciary as Justice Dipak Misra according to
them dealt with the allocation of cases unfairly.37 Similarly the master of Roster position was always surrounded

33
Press Trust of India, 'Whimsical and arbitrary': Bar Council protests elevation of Justice Khanna, Business Standard, 16 January
2019
34
Kaushik Vaidya, Why High Court Judges Are Transferred: Justice Chelameswar’s Account, BloombergQuint, 28 February 2020
35
Dhananjay Mohapatra, Collegium split over selection of woman judge to Supreme Court, The Economic Times, 18 March 2021
36
Sruthisagar Yamunan, Justice Arun Mishra’s tenure reflects deep systemic problems in the Supreme Court, Scroll.in, 2 September
2020
37
Sruthisagar Yamunan, From impeachment motion to internal rift, 2018 was a year of tumult for India’s judiciary, Scroll.in, 31
December 2018
35
by questions but the regime of Justice Dipak Misra saw extraordinary events taking place for the first time in
history although it is not new that always junior judges have always been prioritized by Chief Justices to be in
the constitutional bench and this practice have been continuing for many years now. 38

This controversy shook the pillars of the entire judiciary as the four judges threw their colleague under the bus
in front of the media which was not only a disrespect towards the reputed justice but also was an insult to the
position of Chief Justice of India this kind of act was never seen before. The affairs of judiciary which was
known to be shrouded in mystery and secrecy most of the times was now under public scrutiny and this act by
four senior judges gave the executive and the rest of the world a set stage to again raise questions on the
effectiveness of the functioning of the judiciary.

During the elevation of Justice Dipak Misra another judge Justice Chelameswar also was elevated. The oath was
first administered to Justice Dipak Misra that’s why he became senior is position than Justice Chelameswar as
recorded by Fali S. Nariman in his book GOD SAVE THE HON’BLE SUPREME COURT. According to many
within the bar and bench, this issue was the main reason why Justice Dipak Misra and Justice Chelameswar
didn’t see eye to eye in many instances.

In my opinion this needs to be clarified by the Supreme Court Collegium properly as it can affect greatly to the
judges who were being elevated because if that said judge is able to get to the collegium then if he have enough
years of service left then he can easily become the Chief Justice of India.

3.5 OTHER PROBLEMS RELATED WITH THE JUDICIAL APPOINTMENTS

There are many vacancies for judges post which take loner time to get filled and there are a lot of reasons for
that. Due to this there are number of cases still pending which makes it more urgent and necessary to fill such
vacancies immediately. The fast track courts like entities are set up and they will make the news until few
months before they die of a natural death. There are also reasons why the lawyers don’t take up the position of
judge when offered due to reasons most of which are well known. The judiciary needs to exert itself and try to
solve things before it’s too late.39

There has been a new fight between the Supreme Court Bar Association and the Delhi High Court Bar
Association wherein the DHCBA criticizes the SCBA’s search committee for referring names of practicing

38
Ashit Srivastava and Shaileswar Yadav, The Standards Of Basic Structure: Questioning The Master Of The Roster, The Leaflet, 9
February 2021
39
Madan B Lokur, Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts?, THE WIRE, 11 May 2021
36
lawyers of Supreme Court to the High Court’s collegium. According to DHCBA such act by SCBA is arbitrary
and demoralizes a lot of lawyers in the country.40

I personally do not understand the need of SCBA to refer names to High Court’s collegium. Why to do such an
act when there are already authorities engaged in selecting and appointing judges since many years now. Does
the SCBA think that it can handle the judicial appointments better than the already experienced judges dealing
with such issues since the beginning? Moreover the central government if would have proposed the system then
it would have been understood but the SCBA unnecessarily trying to interfere in judicial appointments rather
than minding its own business. In my view it would be well for everybody if the Supreme Court or any other
court does not entertain such activities of lawyers or else the consequences can be damaging.

The former Chief Justice of India Justice RM Lodha’s practice of consulting other judges of Supreme Court
(who are not the member of collegium) before sending the recommendations was discontinued by his successor,
former Chief Justice of India Justice HL Dattu sighting that the High Courts are having difficulty in following
this practice.41 Nobody knows whether this practice needs to be followed or not. One might wonder why one
needs to contact other judges when you already have Supreme Court collegium and all the appointments were
guided by its directions. This again brings too many people into the fold which also can bring too many
opinions about a particular recommendation.

The judgment delivered by Justice Pushpa Ganediwala regarding the recent POCSO judgment faced a lot of
criticisms.42 Once again the faith of public in the judiciary was diminished. The judges while appointing other
judges often forget that the merit of the judge need to be considered and should be given top priority. Due to
such judgments the rights of a person can be easily affected. Proper scrutiny experience, character, etc needs to
be done before appointing judges to the higher courts. While the appointments were mainly made due to the
seniority factor other factors are ignored.

The feeling of dismay have been expressed by many learned judges regarding the vacancies for the post of a
judge in higher courts but not many of them have urged the highest court in the country to look towards the
jurists for the appointment. There are jurists in India who have remarkable careers and are expert in the field but
not one of them was being appointed as a judge even when the supreme law of the land gives permission for it.43

40
The Leaflet, DHCBA responds sharply to SCBA ‘search committee’ for high court judges; calls it ‘preposterous’ in letter to CJI,
The Leaflet, 11 June 2021
41
Apoorva Mandhani, CJI Dattu cancels former CJI Lodha's directive to consult two judges "outside the collegium" before
recommending names for the appointment of HC Judge, LiveLaw.in, 17 November 2019
42
Justice Satyaranjan C. Dharmadhikari, POCSO Case Judgment Questionable: Appoint Judges After Full Scrutiny so that Justice is
Served, The Leaflet, 7 March 2021
43
Dhananjay Mahapatra, Not one jurist as SC judge despite constitutional mandate: Centre, The Times of India, 11 November 2015

37
Another most important thing which is undermined greatly is the issue of less percentage of women in judiciary.
Many of the other issues are entertained and solutions are put forwarded to solve such issues but not this. There
are not been a single lady chief justice in Supreme Court till date and no one knows the reason as to why. The
judges as well as the members of the bar have often sufficed many reasons for that but not many tried to find
any proper solutions for that or we can say that not many have tried to take necessary steps.44

Similarly there is this policy of maintaining a balance while selecting judges for their appointment to the apex
court followed by the government as well as the collegium. Many factors as we all know are taken into
consideration out of which a strong factor is to see from which High Court, state, community the judge who is
to be elevated belongs to. As often we have seen many elevations did not proceeded and lot of recommendations
were rejected on this basis to create a balance. Generally what it is believed that if there’s already enough
representation of that state, High Court or community in the higher courts then such recommendations are not
carry forward to appointment. To maintain a balance is good but without having proper rules in this regard it
can be easily turned into whimsical and many distinct judges would lose their chance to be in the apex court.
Moreover in country like India where there are so many different communities and religions it is not always
easy to maintain a balance without having specific rules in that regard.

There is another problem of constant introspection and continuous meddling in affairs by the media when you
try to open your doors to them thinking that social media or media in general will make the system more
transparent and it will put oil on the wheels of justice but this is not often the case. Many learned advocates and
even notable judges drew unnecessary attention when they expressed their views regarding the judicial
appointments, other conflicts between the Bar and Bench in public which invited a lot of criticisms to the
judiciary resulting them to become more rigid than ever. In addition to this every act of them was viewed under
the microscope now and their methods, comments, processes which they adopted were always under public
scrutiny. All these things delayed have contributed to the delay in judicial appointments and also to the existing
differences between the bar and bench.

One might say what sarcastically say that what happens behind the closed doors stays behind the closed doors
but as we have discussed above, clearly this is not the case now.

Issue of caste was assumed by many to be a factor of selecting judges while some others were of the view that it
has been never been a factor in selecting and appointing judges to a particular High Court or even the Supreme
Court. Based on interviews conducted by George H Gadbois Jr, an American scholar with many notable judges
regarding the role of caste in the appointments of judges to the higher judiciary in India, Abhinav Chandrachud
an advocate published a book which brings out detailed comments and observations of notable judges which
44
Press Trust of India, Time has come for appointment of woman as Chief Justice of India: SC, Business Standard, 15 April 2021
38
throws light upon the caste being or not being considered as a factor in appointment of judges. 45 Some said that
the backward classes have been given much importance over the other castes in some High Courts while some
others are of the view that the judges who belonged to Brahmin community were often picked by Brahmin
judges present at the higher courts. If this is what is happening behind the closed doors of the Supreme Court
Collegium, one might wonder whether the judiciary have been all this time was acting all good on the outside
while following and practicing Nazism from its very core.

The way the Supreme Court collegium operates is mostly known to nobody. It all depends on the judges and
judges alone. The recommendations to the collegium often as seen were not made for more than a year or so.
These kinds of inactions is not at all appreciated in a country where cases still are pending in a huge number and
the judges in the High Courts are already exhausted. The regime of former Chief Justice of India Justice SA
Bobde was criticized for not making a single appointment within his entire term even when there were clear
vacancies.46

A lot has been said over the issue of RTI being applicable or not applicable to the judicial appointments by the
collegium in addition to also including many other areas of the judiciary. Many advocates believe that the RTI
should be applicable to the whole judicial appointment procedure which will bring clarity and accountability
that the public needs from the judiciary at present while many others believe that it would affect the
independence of the judiciary severely as it would disclose all the sensitive details regarding the judicial
appointments.

Nobody knows how the collegium functions and what criteria is often preferred for selecting the judges. With
all this transparency is rarely seen.47

Many also believe that it would generate more conflicts as the members of other tiers of the government as well
as the public at large will question every decision of the learned judges and every decision will be draw the
unnecessary attention of many which would in a way destabilize the functioning of the judiciary by bringing
more speculations than required.

Post retirement appointments have always faced serious criticisms by many in the judiciary. While it is true that
there’s need for the appointment for the positions of a judge in tribunals, etc, some believe that it is acceptable if
the appointments to the said positions to after some years of retirement. Immediate appointment after retirement

45
Abhinav Chandrachud, Former Supreme Court judges discuss the influence of caste in judicial appointments, The Carvaan, 14 June
2018
46
The Leaflet, SC’s working strength comes down to 26 judges against sanctioned judge strength of 34; No Collegium
recommendation since Aug 2019, The Leaflet, 3 July 2021
47
Paras Nath Singh, Irresolute Collegium – Prey to Judges whimsy, My lords, do we have Right to Know?, The Leaflet, 18 January
2019
39
can mostly invite speculations on the entire judicial system and the career and decisions of the judge who is
recommended for such appointment as it is generally thought that to get favors from the government after the
retirement the judge has favored the government in certain decisions even when this is not the case. The same
happened when the former Chief Justice of India, Justice Ranjan Gogoi’s name was recommended for being the
member of Rajya Sabha.

The appointment of ad-hoc judges to the apex court have been supported by many including former chief Justice
of India, Justice SA Bobde. The ad-hoc judges appointment procedure although to be done according to the
present system of appointments it would not affect the regular appointments and would also not affect the
seniority of the judge to be appointed through regular mode.48 But again nobody knows why there is delay in the
appointment of such judges. The Supreme Court can easily clear the names of such judges and the appointment
can be done but this does not happen usually. It seems that the Supreme Court is way more unwilling to bring
judges into the fold even when the ad-hoc judges won’t affect the regular appointments. One might also think
that bringing these judges can again bring with them more controversies as there are few judges whose judicial
career is not tainted or suffered strong negative criticisms.

Time and again we have seen how the former members of collegium have expressed their concerns over the
collegium’s decisions. This is really a matter of great concern when these members express their opinion
publicly. Soon the media spices it up and presents it to the people in a different way and speculations start. All
these affect the credibility of the judiciary. If only the problems would have been solved within the four walls of
the Supreme Court then things would not have been come to this but sadly the reality what we facing doesn’t
only shake the confidence of people in general on the judiciary but also it is often becomes the centre of
discussions in colleges and universities. Too much of anything is bad and it is the same with the controversies
with the higher judicial appointments. Often it is frustrating to know that there is so much going on within the
four walls of the Supreme Court than meets the eye and while most of things are out in front of the public, rarely
we see that anything is done to make it right. This is another reason according to me why there are a significant
number of people who do not want to join the judiciary.

48
The Leaflet, SC favours appointment of ad-hoc judges to clear case backlog in high courts, The Leaflet, 25 March 2021
40
 CHAPTER – IV

JUDICIAL PRONOUNCEMENTS AND REMARKS MADE BY SCHOLARS

4.1 JUDICIAL PRONOUNCEMENTS

Although there are not many landmark cases involving the issue of judicial appointments to the higher judiciary,
the few cases in which the issue related with judicial appointments is dealt with were discussed as under -

4.1.1 FIRST JUDGES CASE

Case: S.P. Gupta v. Union of India & Anr on 30 December, 1981

Facts: In this case several issues were raised regarding the independence of the judiciary bringing under the
spotlight the then transfer and appointment of judges. The letter addressed by the then union law minister to all
the Chief Ministers and Governor of Punjab forms the main object. As per the letter of the law minister the one-
third of judges of High Courts should be from outside of the state in which the High Court in which they are
working is situated to basically combat parochial tendencies. 1st group of writ petition challenged the circular
letter issued by law minister and scope and power of central government regarding the judicial appointments
and the 2nd group of writ petition challenged the judicial transfer of judges.

Issue: a) Does the petitioners have the locus standi?

b) Who should be given primacy between the President and the Chief Justice of India regarding judicial
appointments?

c) Is consent of additional judge necessary while his/her transfer?

Holding: The major holdings of the case as are follows –

a) The honorable court directed the centre to disclose the document which formed the correspondence between
the Law Minister, Chief Justice of Delhi and Chief Justice of India giving reason that a particular document
regarding the matters of affairs of state cannot be immune from disclosure when in cases like this it affects
public interest.

b) Under Article 74(2) although the advice rendered to the President but council of ministers would be generally
protected from the judicial scrutiny but the correspondence here between the Chief Justice of India, Chief
Justice of Delhi and union Law Minister would not be protected only because it was referred to in the advice.

c) Additional judges are also competent to be the permanent judges or additional judges in High Courts.
41
d) The word “consultation” not to be interpreted as “concurrence” and the opinion of Chief Justice of India do
not have primacy so the President is not bound to make decision based on consultation with the Chief Justice of
India.

e) The circular letter does not violate any provisions of the constitution.

Majority opinion reasoning: The majority opinion reasoning was based on giving more power to the executive
over judiciary in judicial appointments in order to create a balance it seems. Moreover the position of judiciary
and the executive was made clearer analyzing each tiers role.

A. Rule: While dealing with this case the court elaborately discussed upon the “locus standi.” Moreover the
principle of judicial independence was also been discussed including certain other important concepts like
primacy of the Chief Justice of India, etc.

B. Application: The 1st issue was very well answered by the honorable court stating that if in anyway the
subject in question affects the people then such people can bring up the suit regarding that enlightening the court
with many opinions of learned scholars on such subject. The 2nd issue was also addressed by the court analyzing
the primacy concept and taking into account the role the two constitutional authorities i.e. The Chief Justice of
India and the President play in the judicial appointments. Moreover many other issues related with the judicial
appointments were also answered.

Justice P.N Bhagwati

a) The honorable justice explained well the meaning of the locus standi and opined that the petitioners have
locus standi in this case.

b) The Chief Justice of India does not have primacy over the judicial appointments.

c) The additional judges can be appointed through the usual process after consultation.

d) The circular letter is not arbitrary and it is more of a request and it does not violate any constitutional
provision.

Justice A.C Gupta

a) The additional judges are appointed when there is too much workload and such a post is temporary in nature
but if there’s still pending of cases then the judge may be reappointed.

b) The transfer of judge should be carried out with regard to public interest.

42
Justice V.D. Tulzapurkar

a) There should not be a question of primacy but in case of conflict of opinion the Chief Justice’s opinion
should have primacy.

b) The circular letter affects the independence of the judiciary and is the executive interference in the affairs of
the judiciary.

Justice D.A Desai

a) The president according to provisions to act according to the advice given by council of ministers.

b) Opinion of Chief Justice of India does not have primacy and the President is obligated to consult the Chief
Justice of India before appointing any judge to the Supreme Court.

c) The tenure of additional judge should be two years.

d) The transfer of a judge should be made in the public interest and the transfer of a judge from one high court
to another does not constitute a fresh appointment.

Justice R.S. Pathak

a) The power to appoint judges is with the President but before appointment he/she should consult the
constitutional functionaries.

b) The circular letter is not binding in nature.

Justice E.S. Venkataramiah

a) Appointments should be made after consulting with constitutional functionaries.

b) Chief Justice of India’s opinion would not be binding on the President.

c) Central government should review the strength of permanent judges in all the High Courts in the country.

Justice Fazal Ali

a) The correspondence should not be disclosed as it was privileged information.

b) Consent of additional judge during transfer was not needed.

c) The circular letter is not void.

Analysis:
43
The 1st judges case gave primacy to the opinion of President over the Chief Justice of India and the power of
appointment was given to the executive through the President vesting all the powers in the hands of the
executive. Of course the constitutional functionaries would be consulted before the appointment but as
consultation cannot be understood as concurrence the opinions of the constitutional functionaries recorded by
the consultation can be easily overridden. Through this we can understand that the President can be bound to
consult but not to accept their opinion. In case of abuse of power it can be checked through judicial review. But
things would more or less remain the same until the process is changed.

According to my point of view it is fine to include executive to bring more transparency but to give the power of
appointment entirely in the hands of the executive is a complete different thing. Generally, in country like India
where there is no basic educational qualification or experience or qualification regarding a particular area
necessary it would be very difficult to give them the power to deal with the entire judicial appointments. And
particularly the problem with this issue is that in a given year there are many cases filed against government
policies and laws or executive abuse of power, etc so wouldn’t be this power in their hands can lead to selection
of judges who are lenient to the government?

The meaning of locus standi was clearly laid out and it was opined that if a person has sufficient interest in the
matter then he/she can bring the matter to the court and that the appointment of judges is matter which has
public interest. If one doesn’t understand what is locus standi or how people who are indirectly have a stand to
bring on the suit then this case should always be referred to make the understanding more clear.

The additional judges in my point of view only should be reappointed when there are piles of cases pending.
Their term can be for two years and again the situation to be reviewed whether or not there is a need for
reappointment. If there is still huge workload then again the judge can be reappointed for another two years and
if not then the reappointment is not at all needed.

4.1.2 SECOND JUDGES CASE

Case: Supreme Court Advocates-on-Record Association v. Union of India (1993)

Facts: The said writ petition was filed in the Supreme Court for filling up the vacancies in the higher judiciary.
The petition filed, drawing attention to the 1st judges’ case gave rise to two substantial questions which needed
to be answered by the honorable court. Moreover significant stress was given on the words “consultation” and
“concurrence” which cemented the independence of judiciary.

Issue: a) Whether the opinion of Chief Justice of India in the appointment of judges to higher judiciary should
be given primacy?

44
b) Whether the matter of fixation of strength of judges in high courts is justiciable?

Holding: The major holdings of the case are as follows -

a) The opinion of the Chief Justice of India (hereinafter referred as ‘CJI’) must always be given primacy in the
matter of appointment of judges to higher judiciary.

b) The process of appointment of judges to both Supreme Court and High Court were stated.

c) The fixation of judge strength in the High Courts is justiciable but only to the extent and in the manner
indicated.

d) No appointment can be made by President unless it is by the way mentioned in here.

e) Initiation regarding the process of appointment of judge must be by the CJI in case of Supreme Court and the
Chief Justices in case of respective High Courts.

f) Judiciary was given significant power regarding the appointment of judges to the higher judiciary.

Majority Opinion Reasoning: The majority opinion reasoning is based on the principles which are vital to the
constitution. The main reasoning of the majority is that the basic structure of the constitution shouldn’t be
altered which also protects the independence of judiciary and the primacy of the Chief Justice of India.

A. Rule: While dealing with this case, the court looked upon the principles of basic structure of the constitution
describing how the principle of independence of judiciary is vital in the appointment of judges. Also, the
honorable court analyzed the concept of primacy of the opinion of CJI in the appointment of judges to the
higher judiciary stating the process of appointment in detail. The court also answered to the question of the need
of the primacy of opinion of CJI.

B. Application: In this case the concept of primacy of the opinion of CJI was made prevailing when addressing
the 1st issue mentioned as a result reversing the role of judiciary from a mere consultative one to one having the
final say, giving significant powers in the hands of the judiciary.

While addressing the second issue the honorable court stated that the Parliament can increase the number of
judges in High Courts if there’s burden upon the existing state judicature but the appointments to those posts
can only be made through a particular process mentioned in the judgment of this case and other cases related
giving power in the hands of CJI and the Chief Justice of the said High Courts. This became possible by
applying the principle of independence of judiciary.

Concurring Opinion Reasoning:

45
Concurrence (1): Justice S Ratnavel Pandian

a) Primacy should be given to the opinion of CJI in the appointment of judges to the higher judiciary.

b) The procedure of appointment of a judge to Supreme and High Court to be initiated by CJI and Chief Justice
of the said High Court respectively.

c) If CJI reiterates the recommendations which are already rejected/sent back by the President, then in that case
the decision of CJI will be binding.

d) There must be separation of powers between the executive and Judiciary.

e) Selection and appointment of a judge in the higher judiciary is an inseparable and vital condition for securing
the independence of judiciary.

Concurrence (2): Justice Kuldip Singh

a) There should be an independent judiciary

b) Independence of judiciary is closely linked with the appointment of judges to the higher judiciary and the
independence can’t be secured with the executive interference.

c) Consultation with CJI is mandatory

d) Opinion of CJI binds the executive

Concurrence (3): Justice J. S Verma (also writing for Justice Yogeshwar Dayal, Justice G.N. Ray, Justice Dr.
A.S. Anand and Justice S.P. Bharucha)

a) Independence of judiciary can also be secured by prohibiting political considerations in the appointment of
judges to the higher judiciary.

b) Primacy is not given to the individual opinion of the CJI but rather a collective opinion of judges engaged in
the process of appointment of judges.

c) Consultation with CJI and Chief Justice of High Courts is mandatory.

d) The law laid down in the 1st Judges case is not of the correct view.

e) In the event of disagreement between executive and judiciary the CJI’s decision will prevail.

Dissent Opinion Reasoning:

46
Dissent (1): Justice M. M. Punchhi

The executive couldn’t disapprove the opinion of CJI and Chief Justice of a said High Court in case of
recommendations.

Dissent (2): Justice A. M. Ahmadi

1st Judges Case was not required to be overruled but the CJI words carry weight and should be given primacy in
the issue of primacy.

Analysis:

The Supreme Court reversing its earlier judgment changed the role of the judiciary of being a consultative one
to a deciding one in this judgment. The word “consultation” now was to be understood as “concurrence”. The
Supreme Court according to me had done well in rectifying its earlier mistake. The primacy of opinion was
given to the Chief Justice of India over President throwing light on the importance of the Chief Justice in the
judicial appointments.

It was after this case that the collegium system came into being. But the collegium formed after unlike the
present collegium had three members in it i.e. the chief Justice of India and other two senior most judges of the
Supreme Court. This case changed the course of previous appointments and although collegium system has still
not found its home in the constitution or any other statute it still is the main system through which selection and
appointments of judges to the higher judiciary takes place.

This is the case where again the basic structure of the constitution was analyzed again and the independence of
judiciary forming important part of the basic structure was made concrete. Moreover the court did extremely
well is bringing into light the role of High Court Chief Justices and the Chief Justice of India in appointments
such as the initiation of proposal, prohibition of executive interference in the business of the judiciary, etc.

But the issue with the 1st and 2nd judges case is that the 1st judges case gave the entire power of judicial
appointments to the executive while the 2nd judges case gave the entire power in the hands of the judiciary. In
both the judgments the power regarding judicial appointments was given to one tier of the government ignoring
the other completely. It becomes a problem in the long run when the balance is not created.

4.1.3 THIRD JUDGES CASE

Case: In re Special Reference 1 of 1998

47
Facts: In the present case, exercising the powers conferred upon him under Article 143 of the Indian
Constitution, K. R. Narayan, the then President of India referred some questions to the Supreme Court of India
for consideration and to report its opinion upon the said questions.

Issue: The answers to the questions referred were sought.

Holding: The questions mainly dealt with three aspects i.e.

a) Consultation between the CJI and his fellow judges regarding the appointment of judges to the higher
judiciary and the transfer of judges in High Courts.

b) Judicial review of transfer of judges

c) The relevance of seniority when appointing the judges to the Supreme Court.

The Supreme Court provided answers to the said questions focusing on its previous judgments related to the
case and provisions under Indian Constitution.

Majority Opinion Reasoning:

A. Rule: The honorable court mostly focused on the concept of primacy of the opinion of the CJI in matters
relating to the appointment of judges to the higher judiciary and tried to bar the executive interference as much
as possible in the matters of the judiciary.

B. Application: While answering the questions referred to it by the then President, the honorable court clearly
elaborated the process of appointment of judges to the higher judiciary giving primacy to the opinion of the
Chief Justices of High Court and the CJI making sure that the opinion of the CJI will have a binding effect.

Note: The Union of India accepted the answers given by the Supreme Court to the referred questions and
considered those answers to be binding. The decision in this case was unanimous.

Analysis:

The third judges case was more of a clarification regarding the judicial appointments to the Supreme Court and
High Courts rather than any proper case.

The 3rd judges case reaffirmed the position of the judiciary in dealing with judicial appointments as supreme.
What was initiated in the second judges case through this case it was possible to make the position of judiciary
permanent in dealing with appointments for a long period. Although in this case we see no objection or
arguments as it was a case where the Supreme Court answered questions regarding the appointment procedures,

48
I see this case as most important among the three because without it many questions were left unanswered and
even the judiciary would have found it difficult to go through with the judicial appointments without at least
some rules.

4.1.4 FOURTH JUDGES CASE

Case: Supreme Court Advocates-on-Record Association v. Union of Indian (2015)

Facts: Challenging the constitutionality of the 99th amendment of the constitution and the NJAC Act, the
Supreme Court Advocates-on-Record filed a writ petition before Supreme Court stating that the said Act
violated the basic structure of constitution by prohibiting judiciary to exercise their independence. Substantial
question of constitutional importance was raised due to which the Supreme Court referred the case to a five
judge bench.

Issue: Whether the 99th amendment and the NJAC Act is violative of the constitution or not?

Holding:

a) Constitution of India guarantees judicial primacy in appointments.

b) Judicial primacy is not amendable as it is an integral part of the independence of judiciary which is essential
element of the basic structure of the constitution.

c) NJAC Act was declared unconstitutional for obstructing judicial primacy and judicial independence.

Majority Opinion Reasoning: The majority opinion reasoning behind this judgment is that that it is
pronounced to prohibit the executive interference in the appointment process of judges to the higher judiciary
which resulted in striking down the NJAC Act for the said reasons.

A. Rule: The principle of basic structure as well as the doctrine of separation of powers, principle of
independence of judiciary was again stressed.

B. Application: While applying the above mentioned principles, the honorable court made the position of CJI
clear while also strictly prohibiting the executive interference in every way possible in matters of judicial
appointments to higher judiciary and secured the independence of judiciary.

Concurring Opinion Reasoning:

Concurrence (1): Justice Jagdish Singh Khehar

a) Independence of judiciary and separation of powers are two major reasons for striking down NJAC Act.
49
b) Political executive shouldn’t have final say in the appointment of judges.

Concurrence (2): Justice Kurian Joseph

a) Structural supremacy of judiciary is constitutionally restored by 2nd and 3rd Judges Cases.

b) Independence of judiciary is part of basic structure of Indian constitution.

c) Appointment of judges is integral to the concept of independence of judiciary.

Concurrence (3): Justice Madan B. Lokur

a) The 99th amendment alters the basic structure of the constitution.

b) The said amendment seriously affects the independence of judiciary.

Concurrence (4): Justice Adarsh Kumar Goel

a) Under the new amendment the primacy of judiciary has been affected.

b) CJI to be the initiator in the appointment of judges to higher judiciary.

c) The decision in 2nd and 3rd Judges Case has to be taken as binding precedents.

d) Any Act which has damaged the primacy and independence of judiciary has damaged the basic identity of the
constitution.

Dissent Opinion Reasoning:

Dissent (1): Justice Chelameswar

a) Lack of transparency in the appointment of judges by the collegium system.

b) Prevalence of corruption in the higher judiciary.

c) Allegation from different Bars in the country regarding the process of appointment.

d) The judges not following the words of the statutes governing the appointment procedure.

e) Due to all the above mentioned reasons found by justice, he dissented.

Analysis:

In this case the apex court has dealt with centre’s desperate attempt to take over the judicial appointments
rightly in my opinion by quashing down the NJAC Act as well as the 99th constitutional amendment as the
50
NJAC Act was ill conceived and very poorly drafted according to my point of view. The collegium system was
revived again exercising the doctrine of revival by the honorable court but with little modifications it again
came into being. This new collegium system which came into being had two more senior judges in it making the
number to five.

But the main good thing which came out of this was that the Supreme Court has recognized and accepted its
mistakes and errors which were there in the collegium system unlike the government in the past which never
realized its own mistakes in the judicial appointments. But another sad thing is that the Supreme Court has not
yet fulfilled its promise to bring more transparency although some changes were made in this regard, it still is
not enough.

This judgment can be seen as the final judgment which sealed the position of judiciary regarding the issue of
judicial appointments for a long time now. This judgment but till today is been criticized by many as this
judgment is considered to give in the hands of judiciary absolute power and for a fact we know that absolute
power corrupt absolutely. And as the apex court continues its practice without making significant changes
resulting in many judicial appointments being done without proper justified reasons or established rules, it adds
more fuel to the already existing fire.

4.2 REMARKS OF SCHOLARS

Assuming that the decades long battle between the executive and judiciary coming to an end with the advent of
NJAC decision, over the years many have expressed their opinions regarding the whole judicial appointment
procedure.

Followings were some of the remarks of learned scholars regarding the issue at hand -

4.2.1 REMARKS OF LEARNED SCHOLARS IN FAVOR OF NJAC

D.V. Sadanand Gowda, the then union law minister giving an indication regarding his support towards the
National Judicial Appointments Commission Act said that “the will of the people in the Parliament supported
it.”49

M.N. Krishnamani, Former president SCBA expressed his unhappiness over the NJAC judgment. According
to him earlier in the 1st judges case the power was vested in the hands of the executive and it should have
remained that way.50

49
FP Staff, From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act, FirstPost., 16 October 2015
51
Attorney General Mukul Rohtagi referred the NJAC judgment as a “flawed judgment” which according to
him “ignored the will of the Parliament, half of the state legislatures and will of the people in wanting
transparency in the judicial appointments.”51

K.T.S. Tulsi, former member of Rajya Sabha was pretty disappointed with the NJAC judgment and quoting
someone said that “This is the tyranny of un-elected over the elected.” 52

Jayaprakash Narayan (Loksatta Party) considered the NJAC judgment to be wrong and urged the Parliament
to convene an urgent meeting to discuss on this and protect the democracy which is now at risk.53

Late Minister of Corporate Affairs of India, Arun Jaitley criticized the NJAC judgment stating that the
Supreme Court has protected one basic structure i.e. independence of judiciary but failed to protect other five
that are parliamentary democracy, an elected Prime Minister, Elected leader of opposition, elected government
and council of ministers.54

Former Supreme Court Judge, Justice Kurian Joseph on a book launch event expressed his regret which he
is beginning to feel over his decision in NJAC Case also adding that “the present system of appointment if
faulty and also advocated for a full proof system like secretariat to carry out judicial appointments.”55

4.2.2 REMARKS OF LEARNED SCHOLARS AGAINST NJAC

Senior Advocate Kapil Sibal referred the NJAC legislation as an “Ill conceived legislation by the NDA
government.”56

According to Faizan Mustafa, Vice Chancellor of NALSAR University of Law, Hyderabad, the “NJAC was
drafted hurriedly without even consulting the judiciary” and also said that the “Judicial legitimacy rests on the
public confidence in the courts”57

Senior Advocate Shahid Ali of Delhi High Court contended that the NJAC tried to interfere in the independence
of judiciary which would not at all good.58

50
Samanwaya Rautray, Supreme Court declares National Judicial Appointments Commission (NJAC) Act unconstitutional, The
Economic Times, 16 October 2015
51
Krishnadas Rajagopal, SC Bench strikes down NJAC Act as ‘unconstitutional and void, The Hindu, 17 th October 2015
52
id., At 50
53
Supra 48
54
Express News Service, Arun Jaitley on NJAC verdict: Democracy cannot be ‘tyranny of the unelected’, The Indian Express, 19
October 2015
55
Aditi, Regret my decision in the National Judicial Appointment Commission case, Justice Kurian Joseph, Bar and Bench, 10 th May
2019
56
Supra 50
57
Tarique Anwar, Collegium system not perfect, but superior to NJAC, says former CJI, First Post, 16 October 2015
52
Late Senior Advocate Ram Jethmalani referred to NJAC as an “evil absurdity” and warned that there until and
unless there is problem in conducting the affairs of state adopting such a system will do no good in future.59

Advocate Rajeev Dhawan said that “The power to appoint superior court judges was a trusteeship that could not
be gambled a way to laypersons appointed by a majority of politicians”60

4.2.3 REMARKS OF LEARNED SCHOLARS IN FAVOR OF COLLEGIUM SYSTEM

Chief Justice RM Lodha defending the collegium system said that “the entire system cannot be blamed for
allegations against one or two judges in particular and urged people not to shake the confidence of public in the
judiciary.”61

Prashant Bhushan (Swaraj Abhiyan) was happy with Supreme Court through its judgment protected the
judicial independence but he also acknowledged that there are flaws within collegium too which need to be
rectified.62

Senior Advocate Gopal Subramanium hailed the NJAC judgment saying that “it is the most remarkable
judgment after keshavananda Bharti.” Moreover he also added that “the Supreme Court has done right in putting
a stop to executive interference and admitting that there is fault in the collegium system plus it is good that it is
inviting further discussions on the said topic.”63

Chief Justice VN Khare recognizing the issue of transparency in the present of the collegium system said that
“the present system can be made much better and more transparent but it is superior to NJAC in many ways.” 64

4.2.4 REMARKS OF LEARNED SCHOLARS AGAINST COLLEGIUM SYSTEM

Justice Ruma Pal said that “The mystique of the process, the small base from which the selections were made
and the secrecy and confidentiality ensured that the process may on occasions, make wrong appointments and,
worse still, lend itself to nepotism.”65

58
Id., At 56
59
Priyanka Mittal, Ram Jethmalani calls NJAC an “evil absurdity”, mint, 7 th July 2015
60
Samanwaya Rautray, NJAC fragile, laden with mischief, says constitutional expert Rajeev Dhavan, The Economic Times, 2 nd May
2015
61
Dhananjay Mahapatra, Chief Justice of India RM Lodha defends collegium system, says there is a campaign to defame judiciary, Times
of India, 11 August 2014
62
Supra 48
63
Supra 50
64
Supra 56
65
Krishnadas Rajagopal, Why is the Collegium of Supreme Court judges in the spotlight?, The Hindu, 15 th September 2019
53
Advocate K.C. Mittal former President of Delhi High Court Bar Association and ex-chairman of the Bar
Council of India strongly criticized the present collegium system and said that the “the framers of the
constitution never intended to vest absolute power in the hands of the judiciary regarding judicial
appointments.”66

66
Supra 56
54
 CHAPTER - V

OBSERVATION, CONCLUSION AND SUGGESTIONS

5.1 OBSERVATION

It is observed that the present system of judicial appointment has no proper established rules and regulations and
if the system needs to be in operation in future it does need standard rules like any other systems in operation.
Lack of proper rules is the main reason due to which a lot of things have happened which shouldn’t have in the
first place ranging from the mishandling of appointment procedure, not furnishing sufficient reasons for the
elevations and transfers of judges, the monopoly in selection of judges, inclusion of a lot of criteria for the
selection process, etc.

There is not a general process known to anybody regarding the criteria which is followed while appointing
judges. There is the criterion of seniority which is often in clash with the other criteria i.e. merit. We have seen
many times that many young judges supersede the senior judges in appointments and when asked for the reason
for doing that then it is said that the said judges who were appointed have been given green signal by the
collegium on the basis of their merit. Other instances are where the elevation is done taking the number of
judges belonging to a particular parent High Court or a particular community is looked into. If the number of
judges from a particular parent High Court or a community is more then the judge to elevated if belongs to same
parent High Court or community then his/her transfer is delayed or not done at the given time. Such issues
create a lot of confusion and problems within the bench even. So all this criteria need to be looked into.

It is also observed that the present collegium system has not been modified and not many changes were made to
the system as it was promised by the bench in NJAC judgment. Few changes were made but that is still not
enough. The accountability and transparency that the public needs is still awaited in the system.

The NJAC on the other hand was a desperate attempt of the executive to take control over the judicial
appointments. These attempts to take control become the main object which initiated many conflicts between
the executive and the judiciary over these years. Moreover the NJAC was poorly drafted showing many gaps
and loopholes in the whole procedure to be adopted by the system.

The problem with the entire scenario of judicial appointments is that the judiciary is not giving its power and
position again to the executives as there is a great chance that the executive will always try to take over the
judiciary and will misuse it in a far greater extent than we can ever imagine. The decisions through handpicked
corrupt judges can undermine many principles such as judicial independence, basic structure, and the favorite
judges will uphold not the values of the constitution but the value and opinion of executives. Also one of the
55
most important powers of judiciary that is the power of judicial review can face can also be misused as the
executives can and looking into history I believe will again try to bend the laws at their whims and fancies. This
will be a huge problem as it is the judiciary which is responsible for putting brakes on the arbitrary actions of
the legislative and the executive and is also responsible to check the actions of government bodies and prohibit
them from making any laws which is not in accordance with the provisions of the constitution. But if the
executive take control of the judiciary then there will be autocracy and everything and everyone will be
doomed.

5.2 CONCLUSION

This study concludes that the present system lack so much and to make it right it would take serious efforts by
government as well as judiciary along with other academicians and scholars. But if it was to be modified then
there will be serious changes which again will be a tiresome process altogether as it will definitely stretch for a
long period to develop the entire system as it was seen that the memorandum of procedure got delayed and
engaged many consultations and file was continuously exchanged between the executive and the judiciary but
rarely any results came.

And the NJAC if to be again proposed also need to have many changes to its provisions which might change the
previous system of appointment procedure adopted by NJAC completely.

Due to this a separate new system of appointment should come in the place which should be made better than
these two systems taking into account what these two systems wanted to achieve and the reasons of their failure
and every other thing related with the working of the two systems.

5.3 SUGGESTIONS

There are few suggestions made below to make the judicial appointments to the higher judiciary smoother –

a) An entire different system should be formed through which judicial appointments to the higher judiciary can
be made.

b) RTI should be applicable to the judicial appointments which can bring a different level of transparency all
together.

c) The criteria for the appointment need to be revisited along with other things such as the transfer and elevation
procedure, etc. The procedure for the appointment of additional judges and making such judges permanent as
well as the appointment procedure for ad-hoc judges should also be included.

56
d) There need to be a grievance cell which will hear only the grievance related to the judicial appointments and
deal with such issues as we have seen that huge number of grievances from judges from both High Courts and
Supreme Court were most of the times ignored or not given attention to and as judges very well know the rate or
number of pendency of the cases they decide not to drag the matter to court.

e) There need to be the proper and strict maintaining of records of the reasons for which the elevation or transfer
of a judge happened. In case of national security whether it is to be disclosed or not it needs to be decided by the
Chief Justice and President.

f) Meanwhile the appointments to be carried by the existing procedure and the new system of appointment need
to be finalized soon not making unnecessary delay.

57
BIBLIOGRAPHY

1. Gautam Bhatia, Debating the NJAC: Why Judicial Primacy in Appointments is Not Part of the Basic
Structure, Indian Constitutional Law and Philosophy, (July 20,2015),
https://indconlawphil.wordpress.com/2015/07/20/debating-the-njac-why-judicial-primacy-in-
appointments-is-not-part-of-the-basic-structure-guest-post/
2. Justice Yatindra Singh, Appointment of Judges and Judicial Reforms: Need of the hour, THE
LEAFLET, (September 14, 2020), https://www.theleaflet.in/appointment-of-judges-and-judicial-
reforms-need-of-the-hour/
3. Arpit Richhariya, Is the Indian Judiciary Independent Anymore?, JURIST, (May 13, 2020, 1:29 AM),
https://www.jurist.org/commentary/2020/05/arpit-richhariya-indian-judiciary-independence/
4. Arvind Kumar, Over one-third of judges posts lie vacant in 12 high courts. So much for collegiums, The
Print, (October 28, 2020, 12:02 PM), https://theprint.in/opinion/one-third-judges-posts-lie-vacant-in-12-
high-courts-so-much-for-collegiums
5. Raju Ramachandran, The importance of the outsider, THE HINDU, August 26, 2013
6. Krishna PS, NJAC vs collegium: The arguments and counter-arguments, Business Standard, (16 October
2015, 22:09 IST), https://www.business-standard.com/article/current-affairs/njac-vs-collegium-the-
arguments-and-counter-arguments-115101601449_1.html
7. Shambhu Sharan, Gunjan Chhabra, The National Judicial Appointment Commission – A Critique, S&P
Blog, (14 June 2016), https://singhania.in/blog/the-national-judicial-appointment-commission-a-critique
8. Theja Ram, Karnataka HC lawyers go on week-long hunger strike over judicial vacancies, The News
Minute, (05 February 2018, 06:17 IST) https://www.thenewsminute.com/article/karnataka-hc-lawyers-
go-week-long-hunger-strike-over-judicial-vacancies-75940
9. Staff Reporter, Lawyers protest against Chief Justice Tahilramani’s transfer, The Hindu, (11 September
2019, 00:39IST) https://www.thehindu.com/news/cities/Coimbatore/lawyers-protest-against-chief-
justice-tahilramanis-transfer/article29386517.ece
10. Staff Reporter, Odisha HC Bar Association to resume protest against appointment of absentee lawyers
as judges, The New Indian Express, (17th June 2019, 07:25 am),
https://www.newindianexpress.com/states/odisha/2019/jun/17/odisha-hc-bar-association-to-resume-
protest-against-appointment-of-absentee-lawyers-as-judges-1991279.html
11. Madan B Lokur, Collegium’s actions show that the NJAC which was struck down four years ago is
back, with a vengeance, The Indian Express, (16th October 2019, 09:53:58 am),
https://indianexpress.com/article/opinion/columns/govt-calling-the-supreme-court-shots-narendra-modi-
6070659/
58
12. Dhananjay Mahapatra, Chief Justice of India RM Lodha defends collegium system, says there is a
campaign to defame judiciary, The Times of India, (11 August 2014, 15:38 IST),
https://timesofindia.indiatimes.com/india/chief-justice-of-india-rm-lodha-defends-collegium-system-
says-there-is-a-campaign-to-defame-judiciary/articleshow/40045816.cms
13. Diva Rai, Arbitrary transfer of high court judges, IPleaders, (17 February 2021)
https://blog.ipleaders.in/arbitrary-transfer-of-high-court-judges/
14. EPW Engage, Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency
and Accountability, (19 February 2020), https://www.epw.in/engage/article/collegium-system-indian-
judiciary-needs-be
15. Samarth Luthra, The Collegium System in India - History, Status Quo and Alternatives By: Samarth
Luthra, 21 November 2019 https://www.latestlaws.com/articles/the-collegium-system-in-india-history-
status-quo-and-alternatives-by-samarth-luthra/
16. Collegium System for the Appointment of Judges, Drishti IAS, https://www.drishtiias.com/daily-
updates/daily-news-analysis/collegium-system-for-the-appointment-of-judges
17. Krishnadas Rajgopala, Why is the Collegium of Supreme Court judges in the spotlight?, The Hindu, 15
September 2019, 00:02 IST, https://www.thehindu.com/news/national/why-is-the-collegium-of-judges-
in-the-spotlight/article29418574.ece
18. National Judicial Appointments Commission, Wikipedia,
https://en.wikipedia.org/wiki/National_Judicial_Appointments_Commission#Support_for_NJAC
19. Krishnadas Rajgopala, SC Bench strikes down NJAC Act as ‘unconstitutional and void’, The Hindu, 17
October 2015, 02:32 IST, https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-
collegium-system/article7769266.ece?homepage=true
20. Lok Sabha passes judges' appointment bill with key amendment, The Times of India, 14 August 2014,
02:05 IST, https://timesofindia.indiatimes.com/india/Lok-Sabha-passes-judges-appointment-bill-with-
key-amendment/articleshow/40213703.cms
21. Shrey Singh, Go for 5-member NJAC, 29 December 2019, 07:35 IST
https://www.deccanherald.com/opinion/main-article/go-for-5-member-njac-789772.html
22. Ritwika Sharma, With SC reforms stuck in time warp, it would bode well for collegium to finalise
'Memorandum of Procedure' soon, FirstPost., 20 March 2021, 17:39:20 IST,
https://www.firstpost.com/india/with-sc-reforms-stuck-in-time-warp-it-would-bode-well-for-collegium-
to-finalise-memorandum-of-procedure-soon-9442321.html
23. Tulika Tandon, What is Collegium System? Know about appointment of judges in India, JAGRAN
JOSH 29 January 2021, 13:27 IST, https://www.jagranjosh.com/general-knowledge/what-is-collegium-
system-know-about-appointment-of-judges-in-india-1611914697-1
59
24. Utkarsh Anand, Fix timeline for judicial appointments, says SC, The Hindustan Times, 28 January 2021,
01:40 AM IST, https://www.hindustantimes.com/india-news/fix-timeline-for-judicial-appointments-
says-sc-101611777768049.html
25. Indira Jaisingh, Whether the judiciary delivers on its promise or not depends on who gets appointed as
judges: Indira Jaising, The Leaflet, 21 December 2021, https://www.theleaflet.in/whether-the-judiciary-
delivers-on-its-promise-or-not-depends-on-the-people-who-get-appointed-as-judges-indira-jaising/
26. Gautam Bhatia, Debating the NJAC — Article 124C, excessive delegation, and the separation
of powers, Indian Constitutional Law and Philosophy, 23 July 2015,
https://indconlawphil.wordpress.com/2015/07/23/debating-the-njac-article-124c-separation-of-powers/
27. FP Staff, From BJP to Congress: Reactions to Supreme Court striking down the NJAC Act, FirstPost.,
16 October 2015, 13:42:25 IST, https://www.firstpost.com/india/from-bjp-to-congress-reactions-to-
supreme-court-striking-down-the-njac-act-2471078.html
28. Krishnadas Rajgopal, Supreme Court asks govt. to clarify on 55 Collegium recommendations for judicial
postings, The Hindu, 25 March 2021, 15:23 IST, https://www.thehindu.com/news/national/supreme-
court-asks-govt-to-clarify-on-55-collegium-recommendations-for-judicial-postings/article34159911.ece
29. Dhananjay Mahapatra, Rainbow of suggestions on collegium creates din in Supreme Court, 6 November
2015, 11:29 AM IST, https://economictimes.indiatimes.com/news/politics-and-nation/rainbow-of-
suggestions-on-collegium-creates-din-in-supreme-court/articleshow/49684301.cms?from=mdr
30. Arun Jaitley on NJAC verdict: Democracy cannot be ‘tyranny of the unelected’, The Indian Express, 19
October 2015, 10:25:04 am, https://indianexpress.com/article/india/india-news-india/njac-sc-verdict-
democracy-cannot-be-tyranny-of-the-unelected-says-arun-jaitley/
31. Rangin Pallav Tripathy, India’s higher judiciary lacks professional diversity. It’s now a monopoly of
lawyer-judges, The Print, 11 June 2021, 12:45 pm IST, https://theprint.in/opinion/indias-higher-
judiciary-lacks-professional-diversity-its-now-a-monopoly-of-lawyer-judges/675881/
32. Aditi, Regret my decision in the National Judicial Appointment Commission case, Justice Kurian
Joseph, Bar and Bench, 10 May 2019, 12:58 pm, https://www.barandbench.com/news/regret-my-
decision-in-the-national-judicial-appointment-commission-case-justice-kurian-joseph
33. Ashok Bagriya, Centre vs Judiciary: Key Reasons for Conflict Over Appointment of Judges, news18, 29
November 2016, 14:52 IST, https://www.news18.com/news/india/centre-vs-judiciary-key-reasons-for-
conflict-over-appointment-of-judges-1317298.html
34. Manoj Mitta, Charges of nepotism, corruption and politicking continue to dog judiciary, INDIA
TODAY, 31 March 1935, 18:I6 IST, https://www.indiatoday.in/magazine/indiascope/story/19950331-
charges-of-nepotism-corruption-and-politicking-continue-to-dog-judiciary-807087-1995-03-31

60
35. Press Trust of India, 'Whimsical and arbitrary': Bar Council protests elevation of Justice Khanna,
Buisiness Standard, 16 January 2019, 21:38 IST, https://www.business-standard.com/article/current-
affairs/whimsical-and-arbitrary-bar-council-protests-elevation-of-justice-khanna-119011600972_1.html
36. Dhananjay Mahapatra, Not one jurist as SC judge despite constitutional mandate: Centre, The Times of
India, 11 November 2015, 04:48 IST,
https://timesofindia.indiatimes.com/india/not-one-jurist-as-sc-judge-despite-constitutional-mandate-
centre/articleshow/49743022.cms
37. Dhananjay Mahapatra, Collegium split over selection of woman judge to Supreme Court, The Economic
Times, 18 March 2021, 08:33 AM IST, https://economictimes.indiatimes.com/news/politics-and-
nation/collegium-split-over-selection-of-woman-judge-to-supreme-court/articleshow/81561714.cms
38. Kaushik Vaidya, Why High Court Judges Are Transferred: Justice Chelameswar’s Account,
Bloombergquint, 28 February 2020, 11:11 AM, https://www.bloombergquint.com/law-and-policy/how-
high-court-judges-are-transferred-justice-chelameswars-account
39. Madan B Lokur, Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts?, THE WIRE, 11
May 2021, https://thewire.in/law/india-judge-vacancies-justice-delivery
40. Press Trust of India, Time has come for appointment of woman as Chief Justice of India: SC, Business
Standard, 15 April 2021, 20:45 IST, https://www.business-standard.com/article/current-affairs/time-has-
come-for-appointment-of-woman-as-chief-justice-of-india-sc-121041501283_1.html
41. Sruthisagar Yamunan, Justice Arun Mishra’s tenure reflects deep systemic problems in the Supreme
Court, Scroll.in, 2 September 2020, 09:30 am, https://scroll.in/article/971949/justice-arun-mishras-
tenure-reflects-deep-systemic-problems-in-the-supreme-court
42. Sruthisagar Yamunan, From impeachment motion to internal rift, 2018 was a year of tumult for India’s
judiciary, Scroll.in, 31 December 2018, 06:30 am, https://scroll.in/article/906437/explainer-from-
impeachment-motion-to-internal-rift-2018-was-a-year-of-tumult-for-indias-judiciary
43. Sruthisagar Yamunan, Supreme Court collegium should explain why Justice Jayant Patel’s transfer was
in public interest, Scroll.in, 29 September 2017, 07:30 am, https://scroll.in/article/852239/supreme-
court-collegium-should-explain-how-justice-jayant-patels-transfer-was-in-public-interest
44. Aditya AK, Will the Centre (again) defy the Collegium’s call to elevate KM Joseph J?, Bar and Bench,
14 February 2018, 6:01 pm, https://www.barandbench.com/columns/centre-collegium-elevation-km-
joseph
45. Prabhu Chawla, Appointment of judges to Supreme Court, high courts often wracked by controversy,
INDIA TODAY, 30 November 1986, https://www.indiatoday.in/magazine/special-
report/story/19861130-appointment-of-judges-to-supreme-court-high-courts-often-wracked-by-
controversy-801469-1986-11-30
61
46. Avinav Chandrachud, Former Supreme Court judges discuss the influence of caste in judicial
appointments, The Caravan, 14 June 2018, https://caravanmagazine.in/law/supreme-court-judges-
influence-caste-judicial-appointments-chandrachud-extract
47. Paras Nath Singh, Irresolute Collegium – Prey to Judges whimsy, My lords, do we have Right to Know?,
The Leaflet, 18 January 2019, https://www.theleaflet.in/irresolute-collegium-prey-to-judges-whimsy-
my-lords-do-we-have-right-to-know/
48. Justice Satyaranjan C. Dharmadhikari, POCSO Case Judgment Questionable: Appoint Judges After Full
Scrutiny so that Justice is Served, The Leaflet, 7 March 2021, https://www.theleaflet.in/pocso-case-
judgment-questionable-appoint-judges-after-full-scrutiny-so-that-justice-is-served
49. DHCBA responds sharply to SCBA ‘search committee’ for high court judges; calls it ‘preposterous’ in letter to CJI,
The Leaflet, 11 June 2021, https://www.theleaflet.in/dhcba-responds-sharply-to-scba-search-committee-
for-high-court-judges-calls-it-preposterous-in-letter-to-cji/
50. SC favours appointment of ad-hoc judges to clear case backlog in high courts, The Leaflet, 25 March 2021,
https://www.theleaflet.in/sc-favours-appointment-of-ad-hoc-judges-to-clear-case-backlog-in-high-courts
51. SC’s working strength comes down to 26 judges against sanctioned judge strength of 34; No Collegium
recommendation since Aug 2019, The Leaflet, 3 July 2021, https://www.theleaflet.in/scs-working-strength-
comes-down-to-26-judges-against-sanctioned-judge-strength-of-34-no-collegium-recommendation-
since-aug-2019/
52. Ashit Srivastava and Shaileshwar Yadav, The Standards of Basic Structure: Questioning the Master Of
The Roster, The Leaflet, 9 FEBRUARY 2021, https://www.theleaflet.in/the-standards-of-basic-
structure-questioning-the-master-of-the-roster/
53. Tarique Anwar, Collegium system not perfect, but superior to NJAC, says former CJI, Firstpost., 16
October 2015, 00:30:03 IST, https://www.firstpost.com/india/collegium-system-not-perfect-superior-
njac-says-former-cji-2242812.html
54. Faizan Mustafa, Collegium system is a lesser evil than the NJAC, Hindustan Times, 28 October 2015,
11:18 PM IST, https://www.hindustantimes.com/analysis/collegium-system-is-a-lesser-evil-than-the-
njac/story-X7pvxvm0XQFhA2W4oYJkxL.html
55. Fali S. Nariman, GOD SAVE THE HON’BLE SUPREME COURT, Hay House Publishers India

62