Abstract Cons

8/18/2019 Abstract Cons.

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Abstract“Justice can become ‘fearless and free only if institutional immunity and autonomy

are guaranteed’.”The importance of judiciary in a democratic setup is unparalleled. The judiciary plays

an important role of interpreting and applying the law and adjudicating upon

controversies. It is the function of the courts to maintain rule of law in the country.

Judiciary is a watching tower above all the other limbs of the state. In a country with a

written constitution, courts have to safeguard the supremacy of the Constitution by

interpreting and applying its provisions.

Having regard to the importance and significance attached to the function performed

by the judiciary, the Constitution has consciously provided for separation of judiciary

from the executive. The separation of powers between these two organs of the

government has to be observed with respect to judicial appointments, transfers, and

retirement. The separation between the two organs of the government is insisted so

that independence of the judiciary can be maintained.

The appointment of judges to the higher judiciary in our country, that is, the upreme

Court and the High Courts of the states has become a contentious issue, as there is a

constant tug of war between the executive and the judiciary. The issue attracts

attention as the service rendered by Judges demands the highest !ualities of learning,

training and character. Judges are expected to present a continuous aspect of dignity

and conduct.

"uch of the conflict has stemmed from the need to preserve judicial independence.

The term has meant different things to different people over time# to several

members of the Constituent $ssembly, it was a principle to allow judges to adjudicate

free from extraneous considerations, to a majority of judges of the upreme Court

over time, a re!uirement of the rule of law enshrined in the basic structure of the

Constitution and to several popularly elected governments, a principle which had to

be carefully bypassed, while appointing sympathetic judges to the higher judiciary.

Today, these differences have been put in sharp relief in the context of the operation

of the upreme Court collegium as the focal body for judicial appointments, with

judicial independence being used both by judges to justify its perpetuation as well as

by the political classes and sections of the civil society activists to explain its


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purported failures. This article will shed light on the process of judicial appointments

in India and the various momentous changes the appointment procedure has

undergone since independence, while discussing the implications of the passage of the

%%th Constitutional $mendment $ct, &'() and the *ational Judicial $ppointments

Commission $ct, &'().

This paper aims to focus on the constitutional framewor+ for the appointment of

judges in high court and upreme Court. $s it is +nown that the constitutional model

for appointment consists of a consultative process- between the xecutive and

Judiciary and after enforcement of the Constitution this practice has been followed

with some controversial episodes for more than four decades. /ut the scenario has

been changed in (%%0 when the upreme Court in Second Judges Case done away

with the existing consultative process and evolved a new system for appointment of

judges for higher Judiciary, namely 1Collegium1 system. In this system a panel of

Chief Justice of India along with two senior most Judges of the upreme Court 2in

Third Judges Case this number was increased from two to four senior most judges3

recommends the appointment of a judge. /ut the recent episodes revealed the

incompetency and irregularity of the collegium system. This paper will discuss the

constitutionality of collegium system by scrutini4ing all three Judges Cases and

recent developments, which !uestion the trustworthiness of present appointment

model.

5eywords67 Independence Judiciary, Second Judges Case, xecutive, Second Judges

Case %%th $mendment. *J$C


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IntroductionThe appointment of judges to the upreme Court of India and the High Courts has

over the years been a subject of intense conflict between the judiciary and the

executive. "uch of the conflict has stemmed from the need to preserve judicial

independence, a term often used but little explicated in India-s constitutional

literature. Judicial independence has meant different things to different people over

time# to several members of the Constituent $ssembly, it was a principle to allow

judges to adjudicate free from extraneous considerations, to a majority of judges of

the upreme Court over time, a re!uirement of the rule of law enshrined in the basic

structure of the Constitution and to several popularly elected governments, a principle

which had to be carefully bypassed, while appointing sympathetic judges to the higher

judiciary. Today, these differences have been put in sharp relief in the context of the

continued operation of the upreme Court collegium as the focal body for judicial

appointments, with judicial independence being used both by judges to justify its

perpetuation as well as by the political classes and sections of the civil society

activists to explain its purported failures.

*either does this article analyse each of the senses in which judges, politicians and

academics have used the term in the last sixty years nor does it delve into a detailed

legal analysis of the seminal cases relating to judicial appointments decided by the

upreme Court. Instead, it is concerned with a conceptual en!uiry into judicial

independence with a view to outlining its precise relevance to the process of judicial

appointments in India. To this end, this article is divided into three 8arts6 8art $

provides a brief narrative of judicial appointments in India to set the context for the

article9 8art / proposes a conceptual understanding of judicial independence, both on

the basis of a theoretical en!uiry as well as by analysing its role in a formal separation

of powers framewor+ analogous to India9 8art C uses this understanding to assess

whether the ways in which judicial independence has been used in India, specifically

in justifying the current collegium method of appointment are conceptually well7

founded. Through this three7part analysis, it is hoped that a certain degree of

conceptual clarity regarding the role of judicial independence in the context of judicial


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appointments will emerge, thereby providing both an argument as well as a theoretical

foundation for reform of the current appointments process. The narrative of judicial

appointments in India is rich and varied in characters and issues. Judges of diverse

ideologies and upbringing, :aw "inisters with varying degrees of inclination to

interfere in the judicial process, 8rime "inisters both non7interventionist as well as

authoritative, controversies that have riven the nation, judicial decisions that have

united it and continuing attempts at finding the ideal and hitherto elusive system of

appointment which will secure the independence and high !uality of the judiciary are

some of its constituent features. To provide a coherent account of this narrative,

discern the +ey issues that have arisen and set the context for the article, this part will

briefly discuss three crucial phases relating to judicial appointments6 8re7

constitutional discussions 2(%);7(%


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Historical Backdrop

Government of India ActIf we trace the history of appointment process before independence we can see that

the procedure for appointment of judges under the =overnment of India $ct, (%(% and

=overnment of India $ct, (%0< was in the absolute discretion of the Crown and their

tenure was governed by pleasure doctrine-.(

Constituent Assembly

The Constituent $ssembly held vigorous debates as regards the issue of judicial

appointments. Judicial independence was seen as a necessary re!uirement for the

judiciary to adjudicate impartially, insulated from political interferences.

$ccording to >r. $mbed+ar, there were two alternative modes of appointing Judges

which were before the >rafting Committee. The first was the appointment of Judges

in the ?nited 5ingdom where the executive had an absolute power to appoint all the

Judges of the High Court of Justice, and :ords of $ppeal in @rdinary in the House of

:ords. In the ?nited tates, the 8resident had power to appoint Aederal Judges withthe advice and consent of the enate. This method curtailed the absolute power of the

8resident as the Chief xecutive to appoint Judges, by giving the enate a veto.

/etween the absolute power of the executive in the ?nited 5ingdom, and the

8resident-s power in the ?nited tates, hedged in by the veto of a legislative body, the

>rafting Committee steered a middle course.

Aurther, >r. $mbed+ar stated that the proposed appointment does not ma+e the

8resident the supreme and the absolute authority in the matter of ma+ingappointments. It does not also import the influence of the :egislature.)

1 Section 101 and 10 of !o"ernment of #ndia $ct, 1%1% and Section 00 and 0 of the !o"ernment

of #ndia $ct, 1%&' (ro"ided for the (rocedure of a((ointment of )udges of higher )udiciary before the

(resent Constitutional (ro"isions in this regard. The doctrine of (leasure o*es its origin to common

la*. The rule in +ngland *as that a ci"il ser"ant can hold his office during the (leasure of the cro*n

and the ser"ice *ill be terminated any time the cro*n *ishes the same. Though this Common a*

doctrine is ado(ted by our Constitution in article &10 but *ith some restrictions and it is not a((licableto the tenure of high court and Su(reme Court )udges.


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In this way mode of appointment proposed by the members of the Constituent

$ssembly for appointment of judges were not accepted intact and a uni!ue form of

appointment system was adopted by the Constituent $ssembly.

Appointment Under Indian Constitution$rticle (&)2&3 and &(B2(3 provide procedure for appointment of judges in higher

judiciary. $rticle (&)2&3 reads inter alia thus6

very Judge of the upreme Court shall be appointed by the 8resident by warrant

under his hand and seal after consultation *ith such of the Judges of the Su(reme

Court and of the high courts in the states as the -resident may deem necessary for the

(ur(ose and shall hold office until he attains the age of sixty7five years6

-ro"ided that in the case of a((ointment of a Judge other than the Chief Justice, the

Chief Justice of #ndia shall al*ays be consulted ). 2emphasis added3

$rticle &(B2(3 provides that e"ery Judge of a high court shall be a((ointed by the

-resident by *arrant under his hand and seal after consultation *ith the Chief

Justice of #ndia, the !o"ernor of the State, and, in the case of a((ointment of a Judge

other than the Chief Justice, the Chief Justice of the high court, and shall hold office,

in the case of an additional or acting Judge, as provided in article &&), and in any

other case, until he attains the age of sixty7two years

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