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(Author: Rudrika Sharma. Student of 5th year, Law School, University of Jammu)

The judiciary is perhaps the only institution in our country to which the citizens accord utmost credibility. It is indeed the most trusted and respected institution. Then why does the selection of judges to serve in the Supreme Court and the High Courts take place through an impenetrable process? Questions have been raised time and again on the genuineness and transparency of the existing collegium system for appointment of the judges to the Supreme Court and the High Courts. Justice Rumpa Pal has rightly remarked that the process of appointments of judges to the superior courts is the best kept secret in the country. The Judicial Appointments Commission, Bill 2013 has been introduced to replace the existing collegium system by an independent Judicial Appointments Commission. The collegium system undoubtedly gives supreme power to the judiciary in making the appointments and there is an immediate need for a complete overhaul of this system. But is the Judicial Appointments Commission a better successor?



The constitution of India provides under Article 124(2) that the judges of the Supreme court shall be appointed by the President in consultation with such of the judges of the Supreme court and the High Courts as he may deem necessary provided that in case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted and Article 217(1) provides that the judges of the High Courts shall be appointed by the President after consulting the Chief Justice of India, the Governor of the State concerned and in case of appointment of a judge other than the Chief Justice of the High Court to which the appointment is to be made. Thus the Constitution has vested the power of appointments with the executive in consultation with the Chief Justice and such other judges deemed necessary by the President.

A question came before the Supreme Court in S.P. Gupta v. Union of India that whose opinion amongst the various functionaries participating in the process of appointment should have primacy? It was held by the Supreme Court that the opinion of the Chief Justice of India and the Chief Justice of the High Court are MERELY CONSULTATIVE and the power resides solely and exclusively  in the Central Government. Thus, a literal interpretation was given to the word consultation.


In 1993 , a nine judges Bench OVERRULED this decision in SUPREME COURT ADVOCATES-ON-RECORD-ASSOCIATION v. UNION OF INDIA and conferred wide powers on the judiciary in making the appointments. The Supreme held :-


  • That the opinion of the Chief Justice of India should have the greatest weight as he is best suited to know the worth of the appointee,
  • The selection should be made as result of a participatory consultative process in which the Executive has the power to act as a mere check on the exercise of power by the Chief Justice of India
  • In case of a conflict  the primacy must lie in the final opinion of the Chief Justice of India and this primacy in effect means primacy of the opinion of the Chief Justice of India formed collectively after taking into account the views of his senior colleagues who are required to be consulted by him.
  • It is open to the executive to ask the Chief Justice of India and his two colleagues forming the collegium to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.


Thus after this judgment the role of the judiciary became pivotal in making the appointments.  Role of the Executive became minimal with no power to override the decision of the collegium. This epoch-making judgment was reaffirmed IN RE :SPECIAL REFERENCE (1998) case in which the then President Mr. K.R. Narayanan made a reference to the Supreme  Court under Article 143 of the constitution. The Supreme court recommended that the collegium making the appointments should consist of the Chief Justice and four senior most judges, the opinion of all the judges should be in writing, if the majority of the collegium is against the appointment of any person he should not be appointed.



The collegium system thus came into being in 1993. This system consists of a powerful clique of judges led by the Chief Justice having an absolute and irrefutable power to make the appointments of the judges of the High Courts and the Supreme Court. This system has been criticized by many doyens of the Indian Judiciary for being non-transparent and undemocratic. This system was introduced with the objective of insulating the Judiciary from political interference but it has drawn flak from various legal luminaries for not providing any concrete criteria for the prospective appointees. The original scheme of the constitution aimed to maintain a balance between the Executive and the Judiciary  but this system has vested indisputable powers in the Judiciary. The Constitution has no mention of such kind of a system. The constitution provides for a fine balance which has been disturbed by this system. The Rule of Law runs throughout the spirit of our constitution and the basic principle governing the Rule of Law is this that absolute power is not to be vested in any body, organization or institution. It is a well known maxim that power corrupts and absolute power corrupts absolutely. There is always an apprehension that there can be an arbitrary exercise of discretion, judiciary being no exception to it.  The Supreme Court Bar Association President M.A.Krishnamani opines that many judges feel that the collegium system has failed and barring one or two appointments, all other appointments under the collegium system are vitiated either by lack of criteria or by lack of transparency and by nepotism and favoritism. It can be concluded from his opinion that this is a flawed system having no uniform criteria for appointing judges. It lacks the element of accountability of the selectors who can select anybody subject to their whims. There is a blatant lack of objectivity in this system The subjective satisfaction of the collegium is not subject to judicial review and the decision can be challenged only if the proper procedure has not been followed by the collegium. It means only the procedure can be challenged and not the appointment..


The first  collegium consisted of Justice M.N.Venkatachaliah, Justice S RatnavelPandian and Justice A.M Ahmadi. It is said that the former Chief Justice of Guahati High Court U.L Bhatt was not recommended as the Supreme Court judge because he was considered to be ‘irreverent’ by colleagues of Justice M.N .Venkatachaliah. Is this the criteria which governs the appointment of judges of the Supreme Court? This system has failed to deliver and its replacement by a more transparent and objective system is desideratum.



This bill has been introduced with the objective of creating a broad based Judicial Appointments Commission for making recommendations for selection of judges. It aims to introduce transparency in the selection process by giving due representation to the Executive as well as the Judiciary. It is proposed that the Judicial Appointments Committee will consist of the Chief Justice, two Supreme Court judges, the Law Minister and two eminent persons who will be selected by a collegium consisting of the Prime Minister, the Chief Justice and the Leader of the Opposition. This Bill is an attempt to revive the concept of equal representation of the Executive and the Judiciary in making the appointments. To bring the proposed commission into existence, 120th Constitution Amendment has been introduced. Once the Bill is passed by both the Houses of the Parliament it will have to be ratified by one half of the assemblies, only then it can become an Act.



It is writ large that the collegium system has failed to create an unbiased system for making the appointments of the judges of the Supreme Court and the High Courts and many voices from the legal fraternity have been demanding its replacement. But is the legal fraternity ready to adopt the Judicial Appointments Commission as proposed? Charges have already been leveled against the JAC as an attempt to compromise the independence of the Judiciary. It has been said that the cure should not be worse than the disease. It is required that the JAC should not give sweeping powers to the Executive and a balance is maintained. There is a system of checks and balances under which the Constitution functions and it can be maintained only if no organ of the State is vested with an absolute power. The collegium system is an undemocratic system under which the prerogative lies with the Judiciary to make the appointments to such a powerful institution. This system is a perfect example of legislation by the Judiciary. Such a system is not followed in any democratic state and is unique to our legal system. It has completely annihilated the Constitution scheme of checks and balances by reducing the role of the Executive to the minimum. The JAC, Bill definitely provides a better alternative but a lot of debate and discussion is required to be conducted before it turns into an Act as it concerns a matter of immense importance. There is no clarity as to who will be the ‘two eminent’ persons who are proposed to be the members of the JAC and on what considerations they will be selected. The UPA government’s hurry to pass the bill has raised serious aspersions on the intention of the government. The approach of the government should be more assiduousand responsible. This is not a bill of ordinary importance and concerns the complete overhaul of the process of judicial appointments. It should be passes only after detailed deliberations and debates. The non transparency of the current collegium system should not be made a pretext for giving the Executive sweeping powers in the matter of judicial appointments.

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Paras Parkash
Paras Parkash
2 years 26 days ago

Hindu main publish kar do