Judging The Judges' Appointment System At Close Quarters
India that is Bharat witnessed several remarkable milestones in various
domain ranging from self-proclaimed immunity from Covid-19 to some impressive
successes in health, technology, defense and sport sectors. In addition to this,
India also proudly celebrated the "Azadi ka Amrit Mohotsav" in 2022 under
the leadership India's Prime Minister Narendra Modi. Therefore, what we can
conclude that, 2022 will be remembered by every Indian as to how it pacified
every Indian from devastating impact of covid-19 and its long-lasting impacts.
This year will also be remembered in India for burgeoning tussle between
"Temporary Executive and Whimsical Judiciary" on the score of Judges'
appointment system i.e., "Collegium system".
The roots of term "Collegium System" in India for the appointment of
judges can be traced back to dissenting opinion of Justice Bhagwati in "SP GUPTA
V UOI" (1981) which is famously known as "First Judges' Case". However,
the concept of collegium system saw the light of the day in 1993 when 9 judges
bench of Supreme Court in the case of "Supreme Court Advocate on Record
Association V Union of India" envisaged this system by interpreting the term
"Consultation" enshrined in Article 124 (1) and 222(1) as "Concurrence" of Chief
Justice of India.
SP Gupta's case established the primacy of President in the appointment of
judges of High Courts and Supreme Court with the majority of 4:3. However
judicial independence began to corrode and was at its last legs when the union
government led by then congress leader Mrs. Indira Gandhi tried to surpass the
seniority norm in appointing judges, especially in the Supreme Court. This
happened in 1973 and 1977 under the congress government during Indira's regime.
In both the cases, the union government failed to stick to the established
convention in appointing the Chief Justice of India.
The act of excessive political intervention of then congress in the matters
related to the appointment and transfer of judges led to the second judges' case
and Re-Presidential special reference, which ultimately turned the table and
established the unquestionable hegemony of Chief Justice of India in the
appointment of judges and their transfers from one High Court to the other.
The unquestionable hegemony of Chief Justice of India led to the concept of
"Uncle Judge" in the Indian legal System and which ultimately resulted in the
public perception of "Judges' appointing Judges".
This entire conundrum is at the bottom of recent tussle between two most
important organs of Indian Constitution.
What Holy book i.e., Indian Constitution says- Candidly speaking, our Indian
Constitution doesn't see eye to eye to this appointment system i.e., this system
is completely alien to our Indian Constitution.
Appointment of judges to the Supreme Court of India and High Courts is provided
for in Article 124(2)4 and Article 217(1)5 of the Constitution, respectively.
These articles provide that power of appointment for a Supreme Court judge vests
with the President, in "Consultation" with the Chief Justice of India.
In the case of appointments at the concerned High Court, it is in consultation
with the Governor of the concerned state, Chief Justice of the concerned High
Court and also Chief Justice of India. Keeping in mind the vulnerable position
of judiciary in the matters of appointments, the Supreme Court delivered two
landmark decisions, for clarifying the notion of the consultative process for
appointment of judges under Article 217(1) and regarding transfers under Article
The court held judicial independence to be part of the basic structure of the
Constitution. Specifically, in S.P. Gupta v. Union of India (The First Judge's
Case), the majority held, that "while judicial independence did not require the
view of the Chief Justice of India.
In the matter of appointments to be determinative, nonetheless consultation with
him would have to be full and effective and his opinion should not ordinarily be
departed from". The power of the executive in appointing judges was accordingly
curtailed although it continued to have the last word on who would be appointed.
This decision of Supreme Court in Second Judges' case and its subsequent
approbation in Re- presidential special reference rubbed the academicians, civil
societies and political commentators wrong way. Justice Krishnayyar once said
that "The 9 judges bench of Supreme Court in a mighty scissor of power rested
authority to appoint or transfer judges from top executive to themselves by a
stroke of adjudicatory self-enthronement". He termed collegium as "Fraud on the
13 August 2014: Anniversary of one of the most controversial legislations of
Indian history- Every Indian who is little bit aware of the things taking place
around him indisputably remember this date. After 77 days of taking over the
office the Narendra Modi led NDA government tried to make the appointment
process of judges "Transparent" by intruding into the "Exclusive Domain" of
The Bone of contention in this NJAC system was the presence of Union Minister of
Law and Justice along with two "Eminent persons". The "Eminent persons" were to
be appointed by the CJI, PM and Leader of opposition in the lok sabha.
After several years of intact and unchallenged hegemony, the self-proclaimed
"Independent nature" of judiciary was challenged by this act of parliament. The
independence of judiciary which is part of basic structure of Indian
constitution was again in the blues. It was expected that Supreme Court will try
to retaliate and it rightly did so. On 16 October 2015, the 99th Constitutional
Amendment act was repudiated by the Supreme Court of India and court termed it
"Fraud on the Constitution".
The journey from the Collegium system being called "fraud on the Constitution"
to NJAC being termed as "Fraud on the Constitution" is full of chequred career.
This decision of constitutional bench of Supreme Court of India is at the bottom
of contemporary friction between executive and judiciary.
Ambedkar: An ardent opponent of Collegium System- In recent months especially
after the 9 November 2022 the Collegium system has come under fire from the
executive and is facing an umpteen number of challenges. When situation is so
precarious, India can't afford to forget the views of one, who was crusader of
"True and Meaningful Democracy" i.e., Dr. Br Ambedkar.
The Constituent Assembly of India, which enacted and adopted the Constitution,
debated the current Article 124 (then Article 103 of the draft Constitution) on
23-24 May 1949. On the first day, B. Pocker Sahib, a lawyer from erstwhile
Madras, introduced an amendment to the article, providing that the CJI shall
initiate the proposal for the appointment of judges and suggested the
substitution of word 'consultation' with 'concurrence'.
Responding to the debates and amendments introduced in Article 124, Ambedkar
delivered a lengthy speech. "I find three different proposals. The first
proposal is that the judges of the Supreme Court should be appointed with the
concurrence of the Chief Justice. There can be no difference of opinion that the
judiciary must both be independent of the executive and must also be competent
in itself," he said.
While referring to the idea of appointment of the judges 'with the concurrence
of CJI', Ambedkar said:
"With regard to the question of the concurrence of the Chief Justice, it seems
to me that those who advocate that proposition seem to rely implicitly both on
the impartiality of the Chief Justice and the soundness of his judgment. I
personally feel no doubt that the Chief Justice is a very eminent person.
But after all the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as common people have; and I think,
to allow the Chief Justice practically a veto upon the appointment of judges is
really to transfer the authority to the Chief Justice which we are not prepared
to veto is the President or the Government of the day. I, therefore, think that
is also a dangerous proposition."
Collegium System and Concentration of Same gender and of few States in the
Supreme Court-Though the lower number of women judges and collegium system can't
be absolutely connected with each other, but still collegium system is one of
the prime reasons for poor representation of women judges when Country's Prime
Minister talks of "Sabka saath, Sabka vIkas".
Women occupy considerable number of posts in the lower judiciary at the district
levels but when it comes to the High Courts and Supreme Court, the numbers are
really pathetic. In fact, higher judiciary reflects the male-dominated and
patriarchal ethos of the society.
India is a very diverse state with plethora of customs, traditions and most
significant a land of diverse opinions. The female population of India is around
49%, that's why they are called "Aadhi Abadi" by Prime Minister of India. In
this background when we walk on the edges of gender diversity in the "Supreme"
courts of India, we can't help but notice that largely it is dominated by the
gender alienation and not "Samgra Vikas".
Now, question arises whether the picture was gloomy all along, or has become in
modern India. For this question we may visit our "DharmShastras".
In "Brihadaranyaka Upanishad" we can read about the shrewd contentions put
forward by "Gargi". We can also find the arguments of "Maitrey" with respect the
predicaments of human life. India boasts of having "Draupadi and Sita" and
"Jhansi ki Rani" in modern times, means women throughout history have been
accorded highest pedestal.
Since Independence of India, Bharat has witnessed only 11 women judges in the
"Supreme Court of India", the first of them was "Fatima Bibi" who was sworn on 6
According to a data, in lower courts, around 34% of judges are women, mainly
because the method of recruitment is an entrance examination. The higher
judiciary cuts a sorry figure in respect of women representation, because the
appointment is done by a "Collegium System" usually having dominance of Male
judges, therefore the decisions of "A purely MALE body" are bound to reflect
biases in its recommendations.
In 2021, an application (M/S PLR Projects Pvt Ltd V Mahanandi Coalfields Ltd)
was filed by "SCWLA" in Supreme Court of India, seeking an order issuing
directions to take affirmative steps to incorporate more women judges in
constitutional courts of India. The matter received commend from every nook and
corner of India, even then Chief Justice of India S.A. Bobde said umpteen
numbers of favorable statements, one of which arrested the attention of entire
India, where he said that "The time has come to have a Woman Chief Justice of
India", but unfortunately, he refused to pass any order, in order to maintain
"Status quo" as far as appointments of judges are concerned.
However, the presence of a woman judge doesn't guarantee the best and
unquestionable administration of justice, as India has witnessed the insane
observation of "Justice Pushpa Ganediwala" in words "Skin to Skin touch", but
still her presence can definitely carry matters with high hand, when a male
judge makes anti-victim observations, which are beside the mark and audaciously
grants bail to a rape accused by requesting victim to tie him, Rakhi.
With the Central government notifying the appointment of 2 judges in the Supreme
Court of India, the debate on issue of "Equal Representation" has again gained
currency. Out of 28 states and 8 UTs in India only 15 states and 1 union
territory have their representative in the Supreme Court of India.
A look at the data from 1985 reveals that Delhi, Bombay and Allahabad high
courts dominate the selection of judges to the Supreme Court. Presently, the top
court has a working strength of 34 judges against the sanctioned strength of 34.
Of them, four each belong to Allahabad and Delhi High Court, three each to
Bombay, Gujrat and Karnataka, two each to Kerala, Punjab, Tamandu and Rajasthan.
There are one each from Madhya Pradesh, Uttarakhand, Himanchal Pradesh, Bihar,
Telangana and Assam.
Those who have remained unrepresented in the apex court for a long time are six
Northeast states, Odisha, J&K Chhattisgarh, Jharkhand, Sikkim and Goa. Even
though these states had judges who could have been elevated, it never happened.
Bombay High Court has produced the greatest number of Supreme Court judges till
date. It also leads when it comes to Chief Justices of India, with eight out of
50. Calcutta comes next with six, followed by Allahabad with five.
Karnataka High Court has had four judges who have adorned the post of Chief
Justice of India. These figures show that how some states have been left behind
knowingly or unknowingly. Though there are no specific rules for regional
origin, Collegium and the government must uprightly rush from pillar to post to
ensure regional balance in the highest court of country, because status quo
can't be maintained for no rhyme or reason.
Appointment of Victoria Gowri as "Justice" of madras High Court: The
recent controversy attached with Collegium system led by "DY Chandrachud" is its
decision of appointing "Mrs. Victoria Gowri" as additional judge of Madras High
court. As soon as Centre notified her appointment on 1 February, a ruckus was
caused in the country because of her political affiliation with the ruling party
of this country. After finding the collegium getting into scrape, CJI orally
agreed to form two judges' bench to consider her appointment, but the last
attempt to stop her by way of "Judicial Review" of Collegium's decision end in
the fiasco, when the plea was candidly rejected by the Supreme court of India.
In the entire history of the Supreme Court, there is only a single precedent of
it quashing an appointment of a high court judge (Pre-Collegium Era), after
finding that the person recommended was not fit for appointment. That
extraordinary action happened in the 1992 case Kumar Padma Prasad vs Union of
India and Ors, where the Supreme Court quashed the appointment of one K.N.
Srivastava as a judge of the Guwahati high court, before he took oath. This 1992
precedent was cited to challenge the appointment of advocate L Victoria Gowri as
a judge of the Madras high court.
Now, what the appointment of Victoria Gowri suggests, is the million-dollar
The time when country is witnessing significant burgeoning in the incidents of
hate speeches, the appointment of an advocate as judge of madras high court,
whose records are at odds with the "Religious Harmony" seems bull in China shop.
Apart from questioning the Intention of the government, which notified her
appointment and arranged her oath at the drop of hat, in order to avoid any
"Against Interim Order" from the Supreme Court, this appointment also epitomizes
the opaque and gloomy system of selection of judges.
The remarks of CJI that "We were not in the know about certain developments
concerning advocate Victoria Gowri, when we recommended her for appointment",
raise a troubling question regarding the efficacy of the selection process,
which takes proud in "Multiple level Consultation" in selecting the "Suitable"
persons. A simple search in google and social media had the potential to endowed
the collegium with the 5 years old developments, which were surprisingly not
known to collegium headed by Chief justice of India.
What add fuel to the flame is the puzzling response of Supreme Court on this
matter, firstly CJI in his facing saving exercise, agreed to hear the case, but
subsequently bench comprising of Sanjiv Khanna and BR Gavai, who are two future
CJI, dismissed the petition with the observation that "We can't visit the
decision of Collegium regarding the suitability of any candidate.
If, we observe at the argus eyed, the appointment of Victoria Gowri shows
certain continuing structural problems with the appointment system in chapter
and verse. The first problem is the opacity, therefore what India needs is a
process that can ensure objective evaluation by public of proposed names. What
at present in bandwagon is a system which approbates a closed-door consensus and
leaves a room for unhealthy compromises.
In other democratic countries like USA, South Africa or Kenya, the candidates'
names are known to the rank and file of the country before final appointment,
but by contrast in India names see the light of the day after formal declaration
of central government. This not only has transparency costs but also endows
government with the unofficial pocket veto, as it is in the position to withhold
the recommendations made by collegium.
Judicial Review: A fool's errand for recommendations of collegium- The
appointment of L Victoria Gowri also raises a question regarding the Judicial
Review of administrative act of Supreme Court. Once recommendations are sent to
government the only way on the score of which we can challenge the
recommendations is judicial review.
The Collegium System recommends the name of the judges in its administrative
capacity, therefore obiter dicta of judges that "We can't revisit the
recommendations of Collegium" is sufficient to hurt every rank and file of this
country who believes in constitution, democratic values and judicial process.
The entire appointment system is mired in controversy. Even if judicial review
is permitted, another problem occupies the field. Since the recommendations can
be only challenged before the supreme court, it in itself leads to an awkward
situation. The decision of Collegium is called in question before junior judges
which they find a herculean task to repudiate.
Though it doesn't mean that junior judges can't repudiate the senior one, but
still one can candidly see the problems when junior judges are asked to sit in
the judgement over their own senior colleagues.
This problem was manifested in this hearing too, when both the judges were
showing repeated discomfort. It can't be the case in any democratic country
which boasts itself of being "Greatest Democracy of the World'.
Therefore, we can say that present case is the perfect example as how, the
opacity in the entire appointment system can benefit the political executive, as
they are in the position to influence the materials which can influence the
Collegium's decision regarding "Suitability" of any advocate.
All India Judicial Services: A Possible Solution- The concept of "AIJS" owes its
origin to the 14th report of the Law Commission of India in 1958. The objective
was to create a centralized and constitutional body such as Union Public Service
Commission, which will in turn be responsible for the recruitment of judges at
the level of additional district judges and District Judges. In 2006,
Parliamentary standing committee on "Personnel, Public grievances, Law and
Justice" in its 15th report approbated the idea of All India Judicial Services
and also proposed a draft bill.
The Supreme Court of India, which is in news for one or the other reasons also
commended the idea in "All India Judges' Association V UOI" and asked the
central government to form full-proof plan for establishing AIJS. This judgement
of Supreme Court of India rubbed some section of the society "Wrong way" as a
result of which, Supreme Court in its review judgement, left the central
government at liberty to adopt this system of appointment or not.
The need of AIJS apart from being understood in the light of problems with
collegium system, can also be understood in the light of several other benefits
such as- "Ease of doing business, Judges to Population ratio, Paucity of judges,
Representation of Marginalized section of the society, efficient and energetic
judiciary and Transparent and complete domination of Opacity.
There has been a fierce criticism of this idea especially because of uncertainty
in qualifications, age barriers and Court room experiences on the part of
candidates, therefore a structure of AIJS may be suggested, which is as follows.
Suppose, a law student graduates at the age of 24 years. Now period of 1 year
may be considered as cooling period, in which he can register himself with the
Bar Council of India. Now if he starts practicing at the age of 25 years,
uprightly the court room experience of 5 years will be sufficient to endow a
law- graduate with the nitty and gritty of Real-life courts. So, the entrance
point in terms of age in the AIJS can be 30 years.
Now, if we suppose that a candidate qualifies at the age of 31 years, after the
training of almost of 1 years, at the age of 32 he can be posted in the district
as Additional District Judge. After serving 4 years as ADJ, he can be promoted
to District Judge at the age of 36. The Appointment to the post of district
judge at the age of 35-40 years has been subjected to a brute denigration. If an
IAS can become a district magistrate at the age of 28-29, there is no
justification of such criticism. Such abomination of newly mooted idea has come
from a people, who have an axe to grind, therefore much can't be said on this
The service of 6 years at the level of District Judge is more than sufficient
and if I call a spade a spade, he at the age of 42 can be very easily promoted
to the High Court, without any intervention of an opaque body.
The appointment of a judge, who has come all along, at the age of 42 years in
the High court will be sufficient to rejoice the constitutional makers of India,
who during their struggles contemplated a country in which equal opportunity is
given to everyone irrespective of his caste, income status, religion, region and
According to the National Judicial Data Grid, On 1 February 2023 total 59,87,477
cases are pending in the High Courts, which represents a pathetic condition of
our legal system. The decline in pendency is directly proportional to the number
of judges and the working hours of the court, since here we are concerned with
number of judges, therefore a total service of 13 years can be assigned to a
promotee in high court, after which he can be elevated to the Supreme Court at
the age of 55 years.
Justice Nageswara Rao in his retirement speech said that "Judges appointed to
the Supreme Court usually get a tenure of 4-5 years, but this not enough to
understand the working of the top court. "Supreme Court Judges decide the matter
of constitutional Importance, but sometimes even during the pendency they face
retirement, how this can be done"? "Therefore, government can consider either
increasing retirement age or one who has a clear 8-9 years should be brought to
In one way or the other, even judges feel that there must be a larger tenure of
judges in the constitutional courts, therefore a High Court Judge promoting at
the age of 55 years to the Supreme Court will serve a noble purpose for this
Apart from being criticized for its structure, AIJS has also been abominated for
assault on federalism and separation of powers. However, this argument is beside
the mark as Article 312(1) of the Indian Constitution empowers the parliament to
make laws for the creation of one or more All India Services, including an AIJS,
common to the union and states. Another opposition is also based on the
constitutional principle of separation of powers.
A central test could give the executive an opportunity to executive to dominate
the entire judicial system at the district level and dilute the say of high
court judges in the entire process. The counter argument to this "Notion" is
that when we say All India Judicial Services, we place it at par with one
conducted by Union Public Service Commission which consists of Pre, Mains and
In State Judicial exam too, the role of High Court judges arises at the
interview level only, therefore what AIJS can do is to establish a panel of
renewed judges of High Courts for ensuring the free, fair and an independent
interview, which is completely free from executive intervention.
The insurmountable number of pending cases, opaque judicial appointment system
at higher level calls for a well-organized and systematic recruitment system,
that recruits efficient judges in large numbers for speedy dispensation of
AIJS is going through hurdles from the executive block and additionally from
high courts, despite the fact that the Supreme Court has requested for AIJS
twice. Therefore, AIJS needs to be designed in a way to get rid of its
shortcomings and it is able to be a powerful technique to the vacancy in
judiciary. Adequate judges may be made to be handiest if they're recruited in
huge energy through AIJS much like we see in the case of IAS, IPS, IFS, and
different civil offerings.
Hence there needs to be no greater delay. Moreover, after the selection, a
judicial provider officer may be furnished with enough education to address the
job. A meritocratic judiciary is the want of the hour that is viable with an
aggressive recruitment process, because in this pell- mell conundrum, whether
government wins or collegium, it is Indian Constitution and Bharat's democracy
which is bearing the burnt and finding itself in the red.
Written By: Prateek Upadhyay, who is pursuing B.A.L.LB from National Law
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