Process of Appointment of Judges in India and USA-A Comparative Study

THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A- A COMPARATIVE STUDY

SUBJECT: - INDIAN CONSTITUTIONAL LAW- THE NEW CHALLENGES

SUBMITTED TO: Prof.C.M.Jariwala

SUBMITTED BY: Hareesh Gupta

Roll No.10

LL.M. (Ist Semester)

Dr.Ram Manohar Lohiya National Law University, Lucknow

ACKNOWLEDGEMENTS

It is indeed a proud privilege to express my deep sense of gratitude and indebtedness to

my respected teacher and guide Prof.C.M.Jariwala, for his valuable guidance, scholarly

inspiration, which he has extended to me for the successful completion of this endeavour.

I sincerely acknowledge the help rendered by the Librarian and Staff of the Dr.Ram

Manohar Lohiya National Law University, Lucknow, and also the librarian and staff of the

Bishnu Ram Medhi Government Law College,Guwahati, Assam whose cordial relations helped

me for successful completion of project.

Hareesh Gupta LL.M (Ist Semester), Roll No.10

Dr.Ram Manohar Lohiya National Law University, Lucknow

TABLE OF CONTENTS

Page(s)

1. INTRODUCTION

1.1. Research Methodology

1.1.1 Research Objective

1.1.2 Hypothesis/Research Questions

1.1.3 Methodology and Sources of data used in Research work

1.1.4 Research Scheme

2. HISTORICAL BACKGROUND AS TO THE PROCESS OF APPOINTMENT

OF JUDGES IN INDIA AND U.S.A

2.1 Constituent Assembly Debates

2.2 Past proposals for Reforms in India-since 1945

2.3 Position prior to Constitution in United States of America

3. CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATIONS

ON THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A

3.1 Constitutional Provisions and Process of Appointment in India

3.2 Judicial Interpretations

3.3 Constitutional Provisions and Process of Appointment in U.S.A

3.4 The Role of the Legislature in the Process of Appointment of Judges in U.S.A

3.5 Judicial Interpretations

4. COMPARATIVE ANALYSIS OF THE PROCESS OF APPOINTMENT OF JUDGES IN INDIA AND U.S.A

5. CONCLUSIONS AND SUGGESTIONS

Appendices

(i) The Judicial Structure of the Courts in United States of America.

(ii) The Process of Appointment of Judges in United States Federal Courts.

Table of Cases

Supreme Court Advocates on Record Association v. Union of India

S. P. Gupta v. Union of India

Subhas Sharma v. Union of India

Samsher Singh v State of Punjab

Union of India v Sankalchand Himatlal Sheth

Re Presidential Reference case

Marbury v. Madison

Morrison v. Olson

Mistretta v. United States

United States of America v. Fermin Hilario

Jon E. Edmond v. United States

List of Abbreviations

A.I.R - All India Reporter

SC - Supreme Court

v. - Versus

SCC - Supreme Court Cases

J. - Justice

NJC - National Judicial Council

SCR - Supreme Court Review

Para - Paragraph

OPD - Office of Policy Development

FBI - Federal Bureau of Investigation

ABA - American Bar Association

U.S.C. - United States Cases

List of Constitutions

Indian Constitution American Constitution

1. INTRODUCTION

“Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and

render judgment in despite of it. They have the power, though not the right, to travel beyond the

walls of the intertices, the bounds set to judicial innovation by precedent and custom. None the

less, by the abuse of power, they violate the law”1

- Benjamin N.Cardozo

The framers of India’s written Constitution wisely built into it checks and balances in

order bring about a harmonious balance in the powers and responsibilities of the three branches

— the Executive, the Legislature and the Judiciary — of the Government. They knew that in a

democratic set up, the absence of such a balance, and the distortion and even perversity resulting

therefrom, would render effective governance an impossibility. The people particularly look up

to the judiciary to maintain and preserve the equilibrium by its interpretation of various laws and

decisions on the legality and constitutionality of the exercise of their functions by various

authorities, in cases coming before it. Though under the Indian Constitution the polity is dual, the

Indian judiciary unlike United States of America which is dual (consisting of federal and state

courts) is integrated which can interpret and adjudicate upon both the Central and State laws.

The structure of the judiciary in the country is pyramidical in nature. At the apex, is the Supreme

Court. Most of the States have a High Court of their own. Some States have a common High

Court. The appointment of Judges of the Supreme Court and their removal are governed by

Article 124 of the Constitution of India. Articles 125 to 129 provide for certain incidental

matters. The appointment and removal of the Judges of the High Courts are governed by Article

217. Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto.

The issue of appointment and removal of judges in India has been in controversy since

long time and has been a matter of debate amongst the legislature, executive and judiciary in the

recent past. The present position as to the process of appointment of judges is the consequence of

the judicial interpretation laid down in Judges cases I, II and III - S. P. Gupta vs. UOI2, Supreme

1 Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135

2 AIR 1982 SC 149

Court Advocates-on-Record Association vs. UOI3 and Special Reference No.14 which was a

departure from the established existing system of process appointment of judges which prevailed

till the year 1981.Till then the process of appointment of judges were practically made by the

executive in consultation with the judiciary and it played a dominant role, but doubts were made

as to the primacy of the opinion of the executive since then as to the process of appointment of

judges which led to judicial interpretations out of which none of the interpretations were in

consonance with the express constitutional provisions, thereby keeping the process of

appointment of Judges vague and devoid of transparency.

This project work makes the comparative analysis of the process and removal of judges with its

counterpart United States of America as both federal nations have certain common features in

their written constitution, independence of judiciary being the most important one. The

comparative analysis is made with an objective to analyse the existing system of process of

appointment of judges in both countries and to suggest more transparent and effective process for

appointment of judges in India in the light of the said comparative analysis which ensures just,

fair and efficient judicial process in the administration of justice

The project would also critically examine the Judges cases I, II and III and the possibility for

reconsideration of those cases which are the law of land as to the process of appointment of

judges. While the method of selection to subordinate judiciary has not evoked any controversy,

the method of appointment to and more particularly the actual manner in which appointments

were made to the High Courts and the Supreme Court has been a subject matter of good amount

of controversy, whether before the decision in S.P. Gupta or thereafter and even after the 1993

decision of the Supreme Court in Supreme Court Advocates-on-Record Association.

The controversy as regards appointment of judges is that while the decision in the S.P. Gupta

was criticized for upsetting the existing situation by vesting the power of appointment in the

executive and by diminishing the importance of the Chief Justice of India and the judiciary, the

1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by the critics

of the 1993 decision that in a democracy, accountability is an important consideration and the

authority or authorities making such appointments should be accountable to the people. The

3 (1993) 4 SCC 441; AIR (1994) SC 268

4 Special Reference No.1 of 1998,RE (1998) 7 SCC 739

debate is not yet over and perhaps may never be. The formula laid down by the Constitution

makers in Articles 124(2) and 217(1) of the Constitution was drafted after considering all

possible alternatives which would avoid criticism in future. Though, of course, ever since the

commencement of the Constitution from time to time doubts have been expressed on the

operation of the formula, no agreed alternative to it has yet been found. In view of the

interpretation given to the formula by the Supreme Court in the Judges Case, the wisdom of its

continuation underwent severe scrutiny and suggestions came either for the overruling of the

interpretation of the formula or its replacement by a National Judicial Commission for

recommending to the President appointment of the Supreme Court and High Court judges. Since

the Court overruled the Judges Case in the Second Judges Case and affirmed the overruling in

the Third Judges Case, no exercise to change the original constitutional formula is either in

operation or under serious consideration, but the same is criticized for giving ‘primacy’ to the

Chief Justice of India’s opinion over the executive and also for making the consultation process

cumbersome by introducing the system of ‘collegium’ as the same is not provided in the

Constitution . The said question was placed for decision before the larger bench of nine judges in

Judges-II case (as re-affirmed in Judges-III case) from the decision in Subhash Sharma v. Union

of India5 which had already criticized the opinion of judges in S.P.Gupta’s case and laid ground

for its over-ruling.

The research work will be guided by the following proposition/hypothesis which are based

on a close examination of constitutional provisions relating to appointment of judges, their

history, interpretation and application, and the problems faced during their operation:-

First, the Constitution makers did not want the appointment of Judges to be made exclusively by

the executive.

Second, doubts were expressed from the very beginning whether the formula for the appointment

of Judges adopted in the Constitution will serve the purpose of establishing and maintaining an

‘independent and competent judiciary’ which undoubtedly was one of the foremost objectives of

the Constitution makers.

Third, these doubts were confirmed with respect to the High Courts even before the

5 AIR 1991 SC 361

commencement of the Constitution and soon after the commencement of the Constitution even

with respect to the Supreme Court.

Fourth, though the Constitution makers intended effective involvement of the Judges,

particularly of the Chief Justice of India and the Chief Justices of the High Courts, in the

appointment of Judges, they denied the Chief Justice of India the last word (i.e. concurrence) in

the matter.

Fifth, the Constitution makers did not agree to make the appointment of Judges subject to either

the recommendations of any panel or approval of the legislature.

Sixth, the Constitution makers sincerely believed that for the purpose of an independent and

competent judiciary they could not do better than what they had provided in the Constitution for

the appointment of Judges, that the provisions were the best possible and most suitable for India

and that the high constitutional functionaries involved in the process will discharge their

constitutional obligation with full responsibility.

Seventh, time and experience has proved that the Constitution makers were not completely

wrong in their estimation and that subject to occasional aberrations the provisions have worked

as intended and expected.

Eighth, the experience of giving primacy to the executive in the matter of appointment of Judges

after the Judges Case had within a short period of less than a decade proved that the

interpretation of the provisions in that case had gone against the expectations of the Constitution

makers of providing an independent and competent judiciary.

Ninth, until the Judges Case, which gave primacy to the executive in the matter of appointments,

even though difficulties were faced in the appointment of Judges, the idea of a judicial

appointments commission or other similar body outside the scheme already laid down in the

Constitution was not seriously entertained at any level.

Tenth, the Constitution provides for a ‘consultative process’ among several constitutional

functionaries and reasonably expects a ‘participative consensual decision’. This is most

important proposition as the same has been overlooked by Judges Cases-I, II & III.

Eleventh, practice of consultation by the Chief Justice of India and the Chief Justices of the High

Courts with their colleagues before making their recommendation for appointment was prevalent

and specifically recommended by the Law Commission in its 80th Report (1979).

Finally, no clear consensus has either been sought, or has emerged or is in sight so far on the

creation of an alternative arrangement for the appointment of the Judges replacing the one

already provided in the Constitution. There is a strong case to consider constitutional changes in

the judicial appointment process in India if disappointment is not to visit judicial performance

and disinvestment of democracy is not to vitiate the judicative establishment.

The project would also discuss briefly how far and to what extent ‘independence of judiciary’

and power of ‘judicial review’ as one of the basic structure of the Indian Constitution influence

the process of appointment of judges in India.

1.1. RESEARCH METHODOLOGY:

1.1.1 Research Objective

This research work makes the Comparative Analysis of the Process of Appointment of Judges in

two federal countries with written constitution, namely, the United States and India. The

comparative study as to the process of appointment of judges in India with its counterpart United

Sates of America is initiated with a view to analyse the strengths and weaknesses in the present

system of appointment of judges in India and to suggest alternative system of appointment of

judges within the constitutional framework which would bring more transparency and public

confidence in the existing process of appointment of judges. It describes the process of

appointment of judges in both the countries with special emphasis on the recent developments

taking place on the issue of appointment of judges in India The U.S.A is selected for the

comparative analysis because it has certain similarities with the Indian Constitution, for example,

they each posses a written, federal constitution with a democratic setup that has been the subject

of interpretation by an independent judiciary and more importantly ‘independence of judiciary’ is

recognised in both the countries as one of the significant feature in their constitutions.

1.1.2 Hypothesis/Research Question

The research problem addressed in this project work is that whether the provisions of the Indian

Constitution as to the process of appointment of judges are clear and unambiguous or it needs to

be supplemented by the judicial interpretation or it needs a constitutional amendment. It is

known that the present position as to the process of appointment of judges in India is the

consequence of Judges Cases I, II and III, i.e., S.P.Gupta vs UOI reported in AIR 1982 SC 149,

Supreme Court Advocates-on-Record Association vs UOI reported in 1993 (4) SCC 441 and

Special Reference 1 of 1998 reported in 1998 (7) SCC 739 and after the overruling of the

S.P.Gupta’s Case the law laid down in Second Judges Case is the law governing appointment of

judges in India which departs with the text of Article 124(2) and Article 217 of the Indian

Constitution and is criticized by saying that it has made the Supreme Court and High Court

totally undemocratic. Now, in view of the recent incidents of impeachment of Calcutta High

Court judge Soumitra Sen, cash being delivered to the "wrong" judge of the Punjab and Haryana

High Court and the pension funds withdrawal scam involving the Ghaziabad judiciary, the

question is whether the existing process of appointment of judges as established by the judicial

precedents is satisfactory or does it need a rethinking. Secondly, the project would also analyse

the feasibility of other alternative methods of appointment of judges in India which ensures

judicial independence and public confidence in judiciary.

1.1.3 Research Methodology

Researcher in this work has been done having relied mainly on ‘Doctrinal Method’ of research.

The methodology adopted for the present seminar paper is doctrinal, analytical and descriptive.

The researcher mainly depended on the primary sources like Statutes and Research Committee

Report and secondary sources like books, articles, journals, case laws and websites. Opinions of

research scholars, professors, experts in respective fields and opinions of advocates who have

dealt with this subject are used as real contribution to this work. Internet has provided with a

major contribution of most relevant and latest information on the web which has helped the

researcher to explore the subject through various dimensions. Dr. Ram Manohar Lohiya National

Law University, Lucknow and its e-resources have played a crucial role in bringing out special

material for the project paper. Opinions of experts published on the web also contributed to a

great extent for conducting research in the subject.

1.1.4 Research Scheme

The topic on “The Process of Appointment of Judges in India and U.S.A- A Comparative Study”

is taken with a view to analyze in detail the existing system of appointment of judges in India

and U.S.A and to suggest more effective process of appointment of judges in the background of

the said comparative study. Considering all the above aspects and to facilitate the discussion and

perfect solutions for above problems and for thematic development of the subject the research

work is divided into seven chapters. Brief overview of the chapters is as follows—

Chapter I deals with ‘Introduction’. In this chapter the researcher has given a brief overview of

the project topic including its objective and scope and also discusses in brief the research

problem to be addressed by the project.

Chapter II deals with the historical background as to the process of appointment of judges in

India and U.S.A. This chapter primarily deals with the pre-constitutional status as to the

appointment of judges in India and U.S.A. The Indian Constituent Assembly debates while

framing the provisions relating to appointment of judges are discussed in this chapter. The

historical background in regard to the Indian Constitution would also include the suggestions of

the various committees and Law Commission Reports on the appointment of judges before the

passing of judgment of Supreme Court Advocates on Record Association v. Union of India.,

1993 (4) SCC 441.

Chapter III deals with constitutional provisions as to the appointment of judges in India and

U.S.A and interpretations made in leading judicial decisions by the apex court on the said issue.

Chapter IV deals with the comparative analysis as to the method of process of appointment of

judges followed in India and U.S.A.

Chapter V deals with Conclusions and Suggestions as to the alternative method of appointment

of judges in India.

2. HISTORICAL BACKGROUND OF THE CONSTUTUTIONS OF THE TWO COUNTRIES

2.1 Opinion of the Constituent Assembly of India

During the discussions in the Constituent Assembly on the appointment of judges of the Supreme

Court, three main proposals had come up for consideration. One was that the President should

make appointments with the concurrence of the CJI; another was that appointments should be

subject to confirmation by 2/3rd vote by Parliament and the third was that they should be in

consultation with the Council of States (Rajya Sabha) Dr Ambedkar in his reply to the

discussions had firmly ruled out any involvement of the legislature in judicial appointments on

the ground that it would be very cumbersome and would lead to political pressures.

On the question of appointments with the concurrence of the CJI, Dr Ambedkar had said "to

allow the CJI practically a veto upon appointment of judges is really to transfer the authority to

the Chief Justice, which we are not prepared to vest in the President or the government of the

day." As regards appointment by the President, Dr Ambedkar had explained that it would be

after consultation with persons who are ex-hypothesi well qualified to give proper advice in such

matters. The decision finally taken [Article 124(2)] was for appointment by the President "after

consultation with such of the judges of the Supreme Court and of the high courts in the state as

the President deems necessary for the purpose." This procedure had worked fairly satisfactorily

till 1993 when the Supreme Court interpreted the words "after consultation" to mean "with the

concurrence" of the Court and the government of the day chose not to seek a review of this

decision by a larger bench. After this the role of the executive at the Central and state levels

became marginal and the decision on the appointment of judges today rests de facto with the

judges themselves.

2.2. Past proposals for reforms in the process of appointment of judges in India – since 1945

2.2.1 Introduction: For a proper appreciation of the research problem dealt with herein, it is

relevant to notice the several suggestions put forward and attempts at reform tried in last several

years on the issue of appointment of judges in India. They are briefly discussed, as follows:

 2.2.2 Recommendations of Sapru Committee: In the year 1945, the Sapru Committee

(constituted to look into this aspect in view of the impending independence of the country)

recommended that “Justices of the Supreme Court and the High Courts should be appointed by

the head of State in consultation with the Chief Justice of Supreme Court, and, in the case of

High Court Judges, in consultation additionally with the High Court Chief Justice and the head

of the unit concerned.”

 2.2.3 Recommendations of the High Powered Committee appointed by the Constituent

Assembly: The Constituent Assembly appointed a high-powered ad hoc committee consisting

of outstanding jurists of the country for recommending the best method of selecting Judges for

the Supreme Court. The committee submitted a unanimous report opining that it would not be

desirable to leave the power of appointing Judges of the Supreme Court with the President alone.

It recommended two alternative methods in that behalf, namely, (i) the President should, in

consultation with the Chief Justice of the Supreme Court (so far as appointment of puisne Judge

is concerned), nominate a person whom he considers fit to be appointed as Judge of the Supreme

Court and the nomination should be confirmed by a majority of at least seven out of a panel of

eleven (composed of some of the Chief Justices of the High Courts, some members of both the

Houses of Central legislature and some of the law officers of the Union); (ii) the said panel of

eleven should recommend three names out of which the President, in consultation with the Chief

Justice, may select a Judge for appointment. The same procedure should be followed for the

appointment of Chief Justice of the Supreme Court except of course that in his case there should

be no consultation with the Chief Justice.6

2.2.4 Suggestion of Shri B.N. Rao: In his Memorandum on the Union Constitution, Shri B.N.

6 B.Shiva Rao: The Framing of India’s Constitution. Vol.2 at p. 590.

Rao, the Constitutional Advisor suggested that appointment of judges should be made by the

President with the approval of at least two-thirds of the Members of the Council of States, which

was proposed to be constituted to advise the President in exercise of his discretionary functions

and of which the Chief Justice of the Supreme Court was to be an ex-officio member.

2.2.5 Recommendations of Federal Court: The draft Constitution was forwarded to the

Federal Court for its views. In March, 1948 a conference of Judges of the Federal Court

(including its Chief Justice) and Chief Justices of the High Courts was held to consider the

proposals in the draft Constitution concerning the judiciary. The Memorandum submitted by the

conference recommended that the appointment of the Judges of the High Court should be made

by the President on the recommendation of the Chief Justice of the High Court after consultation

with the Governor of the State and with the concurrence of the Chief Justice of India.

2.2.6 Basis adopted in articles 124 and 217: Perhaps, the several proposals mentioned above

(except the one by Shri B.N. Rao) constitute the basis for the method of appointment devised by

Articles 124 and 217. At the same time, the Constituent Assembly chose to employ the

expression “consultation” in preference to the expression “concurrence”.

2.2.7 Fourteenth Report of the Law Commission of India: In its Fourteenth Report (1958),

the First Law Commission of India, headed by, Shri M.C. Setalvad7, and composed of some very

distinguished personalities of the time, examined this issue at length. In its concluding

observations it observed: “the almost universal chorus of comment is that the selections are

unsatisfactory and that they have been induced by executive influence. It has been said that

these selections appear to have proceeded on no recognizable principle and seem to have been

made out of considerations of political expediency or regional or communal

sentiments…………”.

“After noticing that the appointments made have not always been on merit, the Report observed:

“It is widely felt that communal and regional considerations have prevailed in making the

selection of judges………….What perhaps is still more to be regretted is the general impression

that now and again executive influence exerted from the highest quarters has been responsible

for some appointments to the Bench……….”. The report recommended that every appointment

7 Distinguished jurist and first Attorney General of India

to the High Court and the Supreme Court should be made with the concurrence of the Chief

Justice of India. In effect, this report sought to revive the idea of ‘concurrence’, which was not

accepted by the Constituent Assembly. Of course, this recommendation was not implemented. 

2.2.9 Observations of the Supreme Court in Shamsher Singh’s Case: In its judgment in

Shamsher Singh v. State of Punjab8, the Constitution Bench of the Supreme Court dealt with the

appointment of Judges. The Bench observed: “In all conceivable cases, consultation with

highest dignitary of Indian justice will and should be accepted by the Government of India and

the court will have an opportunity to examine if any other extraneous circumstances have entered

into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India.

In practice, the last word in such sensitive subject must belong to the Chief Justice of India, the

rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating

the order.” A most emphatic statement regarding the role of Chief Justice of India in all such

matters.

2.2.10 80th Report of the Law Commission of India: In the year1977, at the instance of the

then Prime Minister of India, the Ministry of Law, Justice and Company Affairs requested the

Law Commission to examine the question of appointment of Judges of High Court and Supreme

Court and to submit a report. The Law Commission headed by Shri H. R. Khanna J. went into

the matter at length and recommended (by the time of submission of the Report Shri H.R.Khanna

J. resigned and hence it was sent by a Member of the Commission) that while making a

recommendation for appointment of a Judge of a High Court, the Chief Justice of the High Court

should consult his two senior-most colleagues and while forwarding the recommendation should

incorporate therein the fact of such consultation and indicate the views of the two colleagues.

The unanimous recommendation of this body, it was recommended, should normally be accepted

by the executive.9. Interestingly, the Commission had proposed in its questionnaire, constitution

of a high level panel (a consultative panel, called “Judges Appointment Commission”) consisting

of persons known for their integrity, independence and judicial background to ensure

dispassionate scrutiny and to eliminate extraneous considerations in the matter of these

appointments (the panel was to consist of Chief Justice of India, Minister for Law and Justice

8 AIR 1974 SC 2192

9 80th Report on Method of Appointment of Judges, (1979)

and three persons each of whom has been the Chief Justice or a Judge of the Supreme Court) but

it dropped the proposal in view of the opposition by most of the High Courts.

2.2.11 79th Report of the Law Commission of India: In the Seventy-ninth Report of the Law

Commission of India (on Delay and Arrears in High Courts and other Appellate Courts [1979]),

it was recommended that in the matter of appointment of Judges of the Supreme Court, the Chief

Justice of India should consult his three senior most colleagues and should, in the

communication incorporating his recommendation, specify the result of such consultation and

reproduce the views of each of his colleagues so consulted. It appears that this procedure was

followed between 1977 and 1979 but given up thereafter. Though the said recommendation

applies equally in the matter of appointment to the High Courts, there is no evidence to show

whether the said recommendation was ever followed and if so, for what period.  

2.2.12 Bar Council’s 1979 Opinion: Reference may also be made to an opinion expressed by

the Bar Council of India in 1979 that of all the segments of the society, the members of the Bar

are pre-eminently suited to judge persons who should be appointed as Judges of the High Court

and Supreme Court and, therefore, any reform or modification in the model for selection and

appointment of Judges of the High Court and Supreme Court must provide for adequate

representation of the organized bar in the mechanism.

2.2.13 Majority view in S.P. Gupta’s case: In S.P. Gupta’s case10Justice Bhagwati (who was in

the majority) did not accept the concept of the primacy of the Chief Justice of India. He opined

that proposal for appointment can emanate either from Chief Justice of India or from any of the

other three constitutional functionaries (in the case of appointment to High Court) and that it was

open to the Central Government to override the opinion of Chief Justice of India or the other two

constitutional functionaries. He said that opinion of all the three functionaries to be consulted

(Article 217) stands on equal footing. He added, quite significantly, that if the opinion of Chief

Justice of India and Chief Justice of the High Court is unanimous, the Government should

ordinarily accept it. In the course of his opinion, the learned Judge also referred to the

desirability of a collegium to make recommendation to the President in regard to appointment of

Supreme Court and High Court Judges. He thought that such a collegium should be broad-based

and should make the recommendation in consultation with wider interests. He referred to the

10 AIR 1982 SC 149

fact that in countries like Australia and New Zealand the idea of a Judicial Commission has been

gaining ground.

2.2.14 Recommendations of Bar Council of India for Collegium: The Bar Council of India

organized a national seminar of lawyers at Ahmedabad on 17th October, 1981. It opined that the

role of executive in the matter of appointment to High Court and Supreme Court should only be

formal and minimal. The initiative in the matter of selection and appointment of Judges should

invariably rest with the Chief Justice of India. For appointment to the Supreme Court, it

recommended a collegium consisting of (1) the Chief Justice of India, (2) five senior Judges of

the Supreme Court, and (3) two representatives of the Bar representing the Bar Council of India

and the Supreme Court Bar Association. The recommendation of such collegium should be

binding on the President though it would be open him to ask for reconsideration of specific cases

on stated grounds. In the matter of appointment to the High Court, it was recommended, the

collegium should consist of the Chief Justice of the High Court and his two senior-most

colleagues and two leading advocates to be nominated by the Bar Association of the High Court

as its representatives.

2.2.15 121st Report of Law Commission of India for Constitution of a National Judicial

Service Commission: The Law Commission again went into this matter at great length in the

year 1987. Its recommendations are contained in the One Hundred Twenty-first Report on a

New Forum for Judicial Appointments submitted in July, 1987. After noticing the several

recommendations made earlier and the developing trends in other countries, the Law

Commission recommended the constitution of a National Judicial Service Commission. It opined

“a broad based National Judicial Service Commission representing various interests with pre-

eminent position in favour of the judiciary is the demand of the times.” The Report 11

recommended that the Judicial Service Commission should be composed of eleven persons,

namely, the Chief Justice of India and three senior most Judges of the Supreme Court, the

immediate predecessor in office of the Chief Justice of India, three senior most Chief Justices of

the High Courts, Minister for Law and Justice, the Attorney General of India and an outstanding

law academic. The report further opined that it must be left to such Commission to devise its

own procedure for initiation of proposal for recommending individuals for appointment and that

11 121st Report of the Law Commission of India

no hard and fast rule can be laid down in that behalf. It was observed that recommendation of

such a Commission should be binding upon the President but it shall be open to the President to

refer the recommendation back to the Commission in any given case along with information in

his possession regarding the suitability of the candidate. If, however, after reconsideration, the

Commission reiterates its recommendation, the President shall be bound to make the

appointment. It was also recommended that the Chief Justice of the High Court, to which

appointment is proposed to be made, should be co-opted as a member of the Commission.

Besides the Chief Justice of the High Court, the Chief Minister of the State (wherein the High

Court is situated) was also recommended to be co-opted. (This was on the premise that

Governor is only a constitutional head who has to act upon the advice of the Chief Minister). It

is evident that the Law Commission had in mind the appointment to High Courts only. It does

not appear to have dealt with appointment to Supreme Court in this Report.

2.2.16 Views of Arrears Committee: The Committee noticed the method of appointment of

High Court Judges under the Government of India Act, 1919, Government of India Act, 1935,

Expert Committee Report of 1947, recommendations of the Judges Conference 1948, the

Constituent Assembly debates, the purport of Article 217 of the Constitution, the principles

contained in S.P. Gupta’s case12 and the non-observance of the Memorandum of Procedure and

observed as follows in paras 6.10 and 6.11:

“6.10 The fact situation aforesaid has led to a loss of credibility and a serious threat to the

independence of the judiciary. Alarmed by this development, the Law Commission,

jurists, academicians, lawyers, etc. bestowed serious thought upon the matter. An almost

unanimous voice came to be echoed to minimize the executive’s say and to vest the last

word in the matter of appointment of judges in the Chief Justice of India. 

6.11 The present system of appointment of Judges to the High Courts has been in vogue for

about four decades. It functioned satisfactorily as long as the well-established

conventions were honoured and followed. The gradual, but systematic violation and

virtual annihilation of the conventions over the past two decades or so is essentially

responsible for the present unfortunate situation. Has the system, therefore, failed or

have the concerned failed the system is an all important question. It is apparent that the

12 Ibid

system has not failed, but all those concerned with operating the system have failed it by

allowing it to be perverted.”

2.2.16.1 Recommendations of the Arrears Committee: The Committee then noticed the 80th

Report of the Law Commission (which affirmed the correctness of the existing procedure)

submitted in 1979 as well as the 121st Report of the Law Commission (which suggested the

constitution of the National Judicial Service Commission). The Committee also referred to

Bhagwati J’s opinion in S.P. Gupta, views expressed at the seminar organized by Bar Council of

India Trust at Ahmedabad in October 1980 and to the views expressed by Justice Y.V.

Chandrachud, then Chief Justice of India in 1983 regarding the constitution of a collegium.

After examining the aforesaid material in extenso the Committee made the following

recommendation:

“6.19 One common thread which passes through the various suggestions is that the role

of the executive in the matter of appointment of Judges should be diluted and that the cause

for most of the ills in the functioning of the present system could be traced back to the veto

power of the executive. This, indeed, is capable of being remedied by making certain

amendments to Article 217 providing for concurrence of the Chief Justice of India, instead of

consultation with him, in the matter of appointment of Judges of the High courts. The

Committee is conscious of the fact that the recommendation of the joint Conference of the

Judges of the Federal Court and Chief Justice of the High Courts, convened by the Chief

Justice of the Federal Court, and also a specific amendment moved to Draft Article 193

(corresponding to Article 217 of the Constitution), providing for concurrence of the Chief

Justice of India came to be rejected, when the articles concerning the judiciary came up for

debate, in the Constituent Assembly. However, it cannot be overlooked that Dr. Ambedkar

had expressed the view that the provision regarding consultation with the President of India

and the Chief Justice of India was “sufficient for the moment”. The experience of the

working of Article 217 for the last about two decades has belied the hope and belief

expressed by Dr. Ambedkar. A time has come to revive the proposal with regard to the

concurrence of the Chief Justice being made a pre-requisite to the appointment of Judges.

The Satish Chandra Committee had also expressed a similar view. The misgivings and

apprehensions which weighed in rejecting the proposed amendment during the debate in the

Constituent Assembly can be allayed by providing that the Chief Justice of India should

consult such of the senior Judges of the Supreme Court as he deems necessary, besides the

Chief Justice of the High Court concerned before giving his concurrence.

6.20 In the light of the foregoing discussion, the Committee proposes that the main

portion of clause (1) of Article 217 be substituted as follows:

“217 (1) Every Judge of a High Court shall be appointed by the President by warrant

under his hand and seal after consultation with the Governor of the State, and, in the

case of appointment of a Judge, other than the Chief Justice, the Chief Justice of the High

Court and with the concurrence of the Chief Justice of India, and shall hold office until

he attains the age of sixty-two years:

Provided that the Chief Justice of India shall give concurrence after consultation with

such of the Judges of the Supreme Court as he deems necessary and the Chief Justice of

the High Court concerned.” 

The Committee further recommends that in the existing proviso to clause (1) of article 217, the

word “further” be added in between the words “provided” and “that”. In view of the

recommendation of the Committee regarding deletion of Article 224, the expression “in the case

of an additional or acting judge, as provided in Article 224, and in any other case” has not been

incorporated in the amendment proposed above.”(The Committee also examined the issue of

transfer of High Court Judges and after an elaborate discussion, recommended amendment of

Article 222 making the consent of the concerned Judge a condition for his transfer).

 2.2.16.2 With respect to the appointment of Chief Justice of India dealt with by Article

124(2), the Committee made the following recommendation in para 7.20:

“7.20 The Committee, therefore, recommends that the second proviso to Article 124(2) be

deleted and an appropriate proviso be substituted to the effect that the senior most Judge of the

Supreme Court shall ordinarily be appointed as the Chief Justice of India. However, in case he

is not proposed to be appointed as Chief Justice of India, reasons therefor shall be recorded in

writing and the appointment shall then to be made in consultation with the seven Judges next in

order of seniority to the senior most Judge, after communicating to them the recorded reasons.” 

2.2.17 Purpose of 67th Amendment Bill served by the judgement in SCAORA: It would be

evident from the several methods of appointment (to Supreme Court and High Courts) suggested

by the various bodies, committees and organizations, the method and procedure of appointment

devised by the 1993 decision of the Supreme Court in SCAORA13 and in the 1998 opinion

rendered under Article 143 that, the 1993 decision gives effect to the substance of the

Constitution (Sixty-seventh Amendment) Bill, without of course calling it a ‘National Judicial

Commission’, and without the necessity of amending the Constitution as suggested by the said

Amendment Bill. Indeed, it carries forward the object underlying the Amendment Bill by

making the recommendations of the Chief Justice of India and his colleagues ‘binding’ (primacy

of opinion) on the President. The 1998 opinion indeed enlarges the ‘collegium’. In this sense,

the purpose of the said Amendment Bill evidenced by the proviso to Article 124(2) and the

Explanation appended thereto is served, speaking broadly. The method of appointment evolved

by these decisions has indeed been hailed by several jurists and is held out as a precedent worthy

of emulation by U.K. and others. (See the opinion of Lord Templeman, a member of the House

of Lords, cited hereinabove.) The said decisions lay down the proposition that the “consultation”

contemplated by Articles 124 and 217 should be a real and effective consultation and that having

regard to the concept of Judicial independence, which is a basic feature of the Constitution, the

opinion rendered by the Chief Justice of India (after consulting his colleagues) shall be binding

upon the Executive. In this view of the matter, much of the expectations from a National

Judicial Commission (N.J.C) have been met. The said Constitution Amendment Bill was, it

would appear, prepared after a wide and elaborate consultation with all the political parties and

other stakeholders. However, the aspect disciplinary jurisdiction remains unanswered.

2.3 Position prior to Constitution in United States of America

Prior to the adoption of the Constitution, the United States was governed by the Articles

of Confederation. Under the Articles, almost all functions of the national government were

vested in a single-chamber legislature called Congress. There was no separation of executive and

13 1993(4) SCC 441

legislative powers. The first proposal presented to the Constitutional Convention was the

Virginia Plan, which would have set up both a Supreme Court and inferior federal courts.

Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the

creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially

disturbed by the idea of lower federal courts. They argued that the state courts could hear all

cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to

protect national rights and provide uniform judgments throughout the country14.

The delegates gathered at the Constitutional Convention in Philadelphia in 1787

expressed widespread agreement that a national judiciary should be established. The present

Constitution of United States America was adopted at the Philadelphia Convention held on 17th

September 178715. It came into force on 4th March 1789, after it had been ratified by the

minimum required number of states. Later on the Judiciary Act of 1789, set up a judicial system

composed of a Supreme Court, consisting of a chief justice and five associate justices; three

circuit courts, each comprising two justices of the Supreme Court and a district judge; and 13

district courts, each presided over by one district judge.

The U.S Constitution provides for the Presidential type of government in the U.S. All

executive powers are vested in the President. The appointment of Federal judges is an executive

power vested in the President of United States of America (President).

Supreme Court justices are appointed by the President with the Advice and consent of the

Senate and, like other federal judges, hold office during “good behaviour”16. There is no specific

tenure for retirement of Justices under American Constitution.

Under the system of checks and balances followed in the US, judges to be appointed to

the Supreme Court are nominated by the President, but the consent of the Senate is necessary for

the confirmation of the appointments. This is not a special procedure for judicial appointments,

but is what the Constitution stipulates for all senior appointments by the US government. The US

14 Outline of the U.S legal system for more details http://usinfo.state.gov/products/pubs/legalotln/federal.htm accessed on 19th November, 2008.

15 V. Bhagwan,(rev.) ‘World Constitution’, 6th revised ed. Sterling Publishers Private Ltd.

16 Article III of the American Constitution.

Presidents have always zealously guarded the power of nomination of a person to the Supreme

Court in the US; equally zealous has been the Senate in the exercise of its power of confirmation.

Out of the 132 nominations made by the Presidents ever since the Supreme Court started

functioning, the Senate had refused confirmation in as many as 27 cases. There have also been

many instances of US Presidents trying to apply indirect political pressure on the Supreme Court

when they found the Court’s stand unhelpful in pursuing certain policies, which they wished to

push. President Roosevelt in 1937 attempted to create five more judges’ posts in the Supreme

Court and to nominate persons who were known to be sympathetic to his New Deal policies.

President Reagan had used his enormous personal influence to appoint to the Supreme Court

persons supportive of his right-wing philosophy. President Bush insisted that another Afro-

American fill a post in the Supreme Court vacated by an Afro-American judge, though the

Senate had strong reservations on the President’s candidate based on some adverse reports on

him. The President could get the confirmation for his nominee only by a narrow 52:48 vote in the

Senate. These instances clearly show how different the US system is from that in India and how

impracticable it will be to draft it on the Indian Constitution. The Supreme Court’s decision of

1993 has reduced the executive’s role in the appointment of judges to the minimum level and if

the judges are also allowed to continue in service for life, the concept of judicial accountability

in India will get diluted more drastically.

3. CONSTITUTIONAL PROVISIONS AND JUDICIAL INTERPRETATIONS ON THE PROCESS OF APPOINTMENT OF

JUDGES IN INDIA AND USA

3.1 Constitutional Provisions and process of appointment of judges in India

3.1.1. Appointment of Judges to the Supreme Court

Article 124(2): Clause (2) of Article 124 inter alia says that:

“every Judge of the Supreme Court shall be appointed by the President by warrant under his

hand and seal after consultation with such of the Judges of the Supreme Court and of the High

Courts in the States as the President may deem necessary for the purpose and shall hold office

until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief

Justice of India shall always be consulted.”

Under our constitutional scheme, the President is the constitutional head. In exercise of the

powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of

Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union

Council of Ministers in the name of the President. Clause (2) of Article 124 speaks of

‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with

the Judges of the High Court. The expression is not “concurrence”. The Constituent Assembly

debates show that when it was suggested by some of the members that the expression should be

‘concurrence’ and not ‘consultation’, it was not agreed to. Similarly, the suggestion to provide

for approval of Parliament or its upper House - probably inspired by the U.S. Constitution – was

also not agreed to by Dr. Ambedkar17

 3.1.2 Appointment of Judges to High Courts

The procedure for appointment of Judges of the High Courts is slightly different from the one

concerning the appointment of Judges of the Supreme Court. Clause (1) of Article 217 says that

“every judge of a High Court shall be appointed by the President by warrant under his hand and

seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case

of appointment 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 224, and in

any other case, until he attains the age of sixty-two years”. A reading of this clause shows that

while the appointment is made by the President, it has to be made after consultation with three

authorities, namely, the Chief Justice of India, the Governor of the State and the Chief Justice of

the High Court. (Of course, in the matter of appointment of Chief Justice, the consultation with

the Chief Justice is not required). Just as the President is the constitutional head, so are the

Governors. However, according to the practice, which had developed over the last several

17 Constituent Assembly debates Vol.8 p.258

decades and which was in vogue till the aforementioned 1981 decision of the Supreme Court

(S.P.Gupta), the Chief Justice of the High Court used to make the recommendation which was

considered by the Governor of the State (Council of Ministers headed by the Chief Minister)

who offered his comments for or against the recommendation. The matter then went to the

Central Government. At that stage, the opinion of the Chief Justice was sought and based upon

such advice; the appointment was either made or declined, as the case may be.

3.1.3 Practice followed till 1981: A practice had developed over the last several decades

according to which the Chief Justice of India initiated the proposal, very often in consultation

with his senior colleagues and his recommendation was considered by the President (in the sense

explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the

position till 1981.  

3.2. Judicial interpretations on the process of appointment of judges in India: The Turning Point

The beginning and end of judicial reform is the appointment of the right kind of judges, be it in

the Supreme Court, the High Court or the subordinate judiciary. The appointment of judges is

the prime and foremost link in the chain of judicial reform. As Justice Bhagwati would say, a

right appointment “would go a long way towards securing the right kind of judges who would

invest the judicial process with significance and meaning, for the deprived and exploited

sections of humanity.”

The procedure as laid in the constitutional text, underwent a change after the three

pronouncements of the Supreme Court, which need to be considered for a fuller and more

incisive understanding of the present scenario and its effect on the selection and appointment of

judges.

In SP Gupta’s case, which we will call the 1st judges case, for facility of reference, the

Supreme Court considered the question of transfer of a judge from one High Court to another

court, without ascertaining his consent and the non-confirmation of an ad-hoc judge, the issues

being crucial for the cardinal principle of ‘Independence of Judiciary’. The decision of the

majority of the seven judges, affirmed the power of the executive to decide these issues and

dismissed the petitions. The question of initial appointment of judges was nowhere in issue, but

the majority judgment, holding that the expression ‘consultation’ used in Art 124 (2) and 217 of

the Constitution did not mean ‘concurrence’, declared that the Executive could appoint a judge,

even if the Chief Justice had different views in the matter. Justice Bhagwati, delivering the

majority judgment, also held that ‘consultation’ with the Chief Justice would mean that there

should be a ‘collegium’to advise the Chief Justice. It was, however, not spelt out as to what

should be the composition of the collegium, at this stage. It was also held that the solitary view

of the Chief Justice would not constitute ‘consultation’ within the meaning of Articles 217 and

224 (2). Thus, the expression ‘colleguim’ came to be used for the first time in paragraph 29 of

the judgment and it was a virtual insertion into the Constitution.

In the year 1991, doubts were expressed about soundness of the S.P. Gupta judgment in

Subhash Sharma vs. Union of India18,   by a Bench presided over by Justice Ranganath Misra,

CJ in regard to the interpretation of the word ‘consultation’ occurring in Articles 217 and 224

(2) of the Constitution and the matter was referred to a larger Bench on two points: “The view

that the four learned judges shared in SP Gupta’s case, in our opinion does not recognise the

special and pivotal position of the Chief Justice of India (paragraph 45). The correctness of the

opinion of the majority in S.P. Gupta’s case19, relating to the status and importance of the Chief

Justice of India and the view that the judge strength is not justiciable, should be reconsidered by

a larger Bench”. It was further clarified in paragraph 51 that “apart from the two questions

which we have indicated, all other aspects dealt with by us are intended to be final by our

present order”.

Consequently, a Bench of nine judges was constituted and judgment was pronounced on 6-10-

1993, in what we shall call the 2nd judges case. The judgment runs into 306 pages and travels

far beyond the order of reference. Noted jurist, Late H.M. Seervai, in his celebrated

Constitutional Law of India,   has called the judgment “null and void” for not following the

mandatory provisions of Act 145 (4) & (5) which as per the dictum laid down by Sir Barnes

Peacock, CJ enjoins that “it is a fundamental principle essential to the due administration of

justice that every judicial act which is done by several judges ought to be completed in the

18 AIR 1991 SC 631

19 Ibid

presence of whole of them. If after discussion and after deliberately weighing the arguments of

each other, the judges cannot agree, then several judgments ought to be delivered in the open

court in the presence of others”.

That the judgment was not so pronounced is evident from the lament of Justice M. M. Punchchi

in his dissenting judgment. The same is quoted from paragraph 90 of the 2nd Judges case. “This

nine judge bench sat from April 7, 1993 to hear this momentous matter, concluding its hearing

on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all

after July 12, 1993 on the reopening of the court, if not earlier, would sit together and hold some

meaningful and frank discussion on each and every topic, which has engaged our attention,

striving for a unanimous decision, in this historic matter concerning mainly the institution of the

Chief Justice of India, relatable to this court.

I was indeed overtaken when I received the draft opinion dated June 14, 1993, authored by

my learned brother Justice J.S. Verma for himself and on behalf of my learned brethren

Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha-JJ. The fait accompli appeared

a stark reality, the majority opinion an accomplished fact. The hopes I entertained of a free and

frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned

brother Ahmadi J like a pebble of hope hewn out of a mountain of despair, followed by the

opinions of my learned brother Kuldip Singh and Pandian-JJ dated Sept 7, 1993 and September

9, 1993, respectively. Any review meeting thereafter was not possible as the views by that time

seemed to have been polarized.”

It is therefore clear that there was no discussion, no meeting of minds and no consensus among

the nine judges, on 14 June, 1993, when the final draft judgment was signed/circulated by

Justice Verma, who spoke for himself and other colleagues (Yogeshwar Dayal, G.N. Ray, Dr.

A.S. Anand and S.P. Bharucha JJ). The judgment therefore plainly is Per Inqurium.

The 2nd Judges case declared that “the opinion given by the Chief Justice in the consultation

process has to be formed taking into account the views of the two senior most judges of the

Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior

most judge of the Supreme Court, whose opinion is likely to be significant in adjudging the

suitability of the candidate by reason of the fact that he has come from the same High Court or

otherwise. Article 124 (2) is an indicator that ascertainment of the views of some other judges of

the Supreme Court is requisite. The object underlying 124 (2) is achieved in this manner as the

Chief Justice of India consults them for the formation of his opinion”.

“In matters relating to appointments in the High Courts, the Chief Justice of India is expected to

take into account the views of his colleagues in the Supreme Court, which are likely to be

conversant with the affairs of the concerned High Court. The Chief Justice may also ascertain

one or more senior judges of that High Court, whose opinion according to the Chief Justice of

India is likely to be significant in the formation of his opinion.The opinion of the Chief Justice

of High Court must be formed after ascertaining the views of at least the two senior most judges

of the High Court”. 

 This procedure continued till the President of India, Rashtrapati K.R. Narayanan had doubts and

required clarification and light from the Supreme Court in regard to the appointment procedure,

and that is how the 3rd Judges case, Special Reference No. 1 of 1998, came to be made under

Article 143 of the Constitution. The President referred 9 questions, which are not being repeated

for the sake the brevity.

A Bench of 9 judges was again constituted, headed by Justice S.P. Bharucha.  Normally, an

advisory opinion under Article 143 does not have to be binding, but the Attorney General made

a statement before the Court that government would abide by the opinion of the Court.

The 9 judge Bench consisting of S.P. Bharucha, M.K. Muhkerjee, S.B. Majumdar, Sujata V.

Manohar, G.T. Nanavati, S Saghin Ahmad, K Venkataswami, B.N. Kinful and G.B. Patnaik- JJ

answered the reference unanimously, in paragraph 44 of the reference.

The Chief Justice of India must make a recommendation to appoint a judge of the Supreme

Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the

four senior most puisne judges of the Supreme Court. In so far as an appointment to the High

Court is concerned, the recommendation must be made in consultation with the two senior most

-puisne judges of the Supreme Court. The court further held that “the requirement of

consultation by the Chief Justice of India with his colleagues, who are likely to be conversant

with the affairs of the High Court concerned, does not refer only to those judges who have that

High Court as a parent High Court. It does not exclude judges who have occupied the office of a

judge or Chief Justice of that High Court on transfer”.

The court also clarified that “the views of the other judges consulted should be in writing and

should be conveyed to the Government of India by the Chief Justice of India along with his

views...”

Today, we are back to square one because there is a hue and cry that the consultative procedure

has become not only cumbersome, but well nigh impossible. The Chief Justice of a High Court

is, by the policy of the government, a judge from outside the state who has little information and

knowledge in regard the legal practitioners in the state. In many a state, seniormost judges

constituting the collegium are from outside, with the result that appointments suffer for want of

adequate information. It maybe noted that broadly there are two areas of enquiry. One is the area

of legal acumen of the candidate to adjudge his/her suitability and the other is antecedents. The

Chief Justice of India and other judges of the Supreme Court and High Court can only judge

legal acumen. They have no access to the antecedents of a candidate, for which the Executive is

the best judge.

It is also to be argued that the collegium has now to consist of four (instead of two) senior most

judges of the court in the appointment of a High Court judge. The Supreme Court judge,

acquainted with the particular High Court is also to be consulted, raising the number to six. The

increased number of consultees has made the consultation process cumbersome and delays in

filling up vacancies are bound to occur. Every communication has to be in writing and the views

of the consultees are to be communicated to the government.

There is no indication as to what happens if there is no consensus among the consultees or if the

majority disagrees with the Chief Justice of India. S.P. Gupta’s case has already laid down that

the entire correspondence between the various authorities concerned is open to public scrutiny

(since the entire record was summarised and made public in that case).

Justice Verma who wrote the lead judgement in the 2nd Judges case was asked by V. Venkatesan

of Frontline dated 10.10.08, “My 1993 judgement, which holds the field, was very much

misunderstood and misused. It was in that context I said the working of the judgment now for

some time is raising serious questions, which cannot be called unreasonable. Therefore, some

kind of rethink is required. My judgement says the appointment process of High Court and

Supreme Court Judges is basically a joint or participatory exercise between the executive and the

judiciary, both taking part in it. Broadly, there are two distinct areas. One is the area of legal

acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the

judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts,

the Chief Justice of the High Court and his colleagues (who) are the best persons to adjudge the

legal acumen. Their voice should be predominant. So far as the antecedents are concerned, the

executive is better placed than the judiciary to know the antecedents of candidates. Therefore,

my judgement said that in the area of legal acumen the judiciary’s opinion should be dominant

and in the area of antecedents the executive’s opinion should be dominant. Together, the two

should function to find out the most suitable (candidates) available for appointment.”

The views of the government are reflected in the newspaper report (Hindustan Times) of 19

October, 2008 and I quote the relevant extract: “The government has accepted a parliamentary

panel’s recommendation to scrap the present procedure for appointments and transfers of

Supreme Court and High Court judges…The Law Ministry has agreed to review the 15-year-old

system after the Parliamentary Standing Committee on Law & Justice recommended doing

away with the committee of judges (collegium). Presently, the collegium decides the

appointments and transfers of judge”.

The question is, from here where do we go? Do we restore the 1982 judgment, which was the

starting point of the collegium or do we accept the primacy of the Chief Justice and the power of

the executive for appointment of judges, which practice has prevailed since the inception of the

Constitution? These are questions of vital importance, which will have to be settled by the

Supreme Court by reviewing the three judgments, which have held the field since 1982.

Alternatively, the government can amend the Constitution. If the amendment is challenged, the

entire matter will be opened before the Court.     

3.2.1 The Controversy

While the method of selection (appointment by Government being a mere formality) to

subordinate judiciary has not evoked any controversy, the method of appointment to and more

particularly the actual manner in which appointments were made to the High Courts and the

Supreme Court has been a subject matter of good amount of controversy, whether before the

decision in S.P. Gupta or thereafter and even after the 1993 decision of the Supreme Court in

Supreme Court Advocates-on-Record Association. While the decision in the S.P. Gupta was

criticized for upsetting the existing situation by vesting the power of appointment in the

executive and by diminishing the importance of the Chief Justice of India and the judiciary, the

1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by the critics

of the 1993 decision that in a democracy, accountability is an important consideration and the

authority or authorities making such appointments should be accountable to the people. A

distinction is made between appointment and functioning. While in the matter of functioning,

the executive can have no say, it is said, the executive must be necessarily involved in the

process of appointment. The argument is that someone must be responsible for the appointment

made and since Chief Justice of India or his colleagues are not accountable to the people, the

concentration of power of appointment in them is undemocratic. The argument further is that

the executive is accountable to the Legislature, which in truth represents the will of the people –

the consumers of justice - and that involvement of Executive is the only way of infusing the

element of democracy and accountability in the process relating to the appointment of judges of

the High Courts and Supreme Court. The contrary argument in support of the existing method

(ordained by the decisions of the Supreme Court in 1993 and 1998 aforementioned) is that in

Indian conditions and culture, entrusting this power to, or involvement of the Executive in the

appointment process is bound to prove detrimental to the independence and integrity of the

judiciary, as the experience during the years 1973 to 1977 and again during the period 1982 to

1993 (period during which S.P. Gupta held the field) shows. The supersessions, arbitrary and

motivated transfer of Judges of High Court, the manner in which additional Judges in High

Courts were dealt with (either by extensions for short periods or by not confirming them), the

several attempts at muzzling the judiciary during the period 1973 to 1977 (including the

supersession of senor-most judges of the Supreme Court in the matter of appointment of Chief

Justice of India) and the manner in which several appointments were made during 1981 to 1993

are all said to furnish proof of the fact that in our present stage of development, the domination

or involvement of the executive in this process is not desirable. It is said that democratic culture

has not yet taken root in our country and that feudal tendencies are very much part of our thought

and action. The attempt to control every institution, personalized rule, refusal to see the merit of

diffusion of power of governance (a basic feature of democracy) are propensities which are not

conducive to an independent and efficient judiciary. If the vesting of the power of selection of

subordinate judiciary in the High Courts exclusively is not bad, how does the selection of Judges

of High Courts and the Supreme Court become bad – goes the argument. It is further pointed out

by the proponents of this point of view that today executive is the biggest litigant and the power

vested in the Supreme Court and the High Courts by Articles 32 and 226 respectively is intended

to act as a check upon the executive and that today the major portion of the work in every High

Court and the Supreme Court is under these provisions; if so vesting the power of appointment,

whether wholly or partially, in the executive is bound to prove prejudicial to this constitutional

perspective. The U.K. example, it is said, is not relevant to this country at the present stage of

development and in so far as U.S.A. is concerned, it cannot and ought not to be emulated in this

country, more particularly after the recent episode (the un-edifying manner in which the judiciary

in that country acted in the Bush-Gore election controversy). Incidentally, the American

experience reinforces the inadvisability of executive’s role in the matter of appointment.

However, under the Indian Constitution the said power of appointment of judges neither resides

exclusively in the Judiciary, as because the Indian Constitution has provided for the

“participatory and consultative” method of appointment process by way of consultation with the

judiciary giving primacy to neither of the wings. But the said balance as intended is not followed

in the present process of appointment of judges which is a matter of serious concern as the

guardian of the constitution is itself acting beyond what the constitution has expressly provided

thereby bringing the process of appointment of judges justiciable and subject to judicial review.

3.3 Constitutional Provisions and Process of Appointment in U.S.A

3.3.1 Background and the Structure of the Judicial System (Federal and State Courts)

The judicial system in the United States is known as dual court system, which means both state

and federal governments have their own set of courts. Thus, there are 51 separate sets of courts

in the United States, one for each state and one for the federal government. The project will

discuss the process of appointment of judges of federal courts only.

The judicial structure of the courts in the United States of America is well explained with

the help of the diagram. (Appendix-I)

The appointment of a Supreme Court Justice is an event of major significance in American

politics. Each appointment is important because of the enormous judicial power the Supreme

Court exercises as the highest appellate court in the federal judiciary. Appointments are usually

infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all,

during a particular President’s years in office. Under the Constitution, Justices on the Supreme

Court receive lifetime appointments. Such job security in the government has been conferred

solely on judges and, by constitutional design, helps insure the Court’s independence from the

President and Congress. The procedure for appointing a Justice is provided for by the

Constitution in only a few words. The “Appointments Clause”20 states that the President “shall

nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the

Supreme Court.” The process of appointing Justices has undergone changes over two centuries,

but its most basic feature — the sharing of power between the President and Senate — has

remained unchanged: To receive lifetime appointment to the Court, a candidate must first be

nominated by the President and then confirmed by the Senate. Although not mentioned in the

Constitution, an important role is played midway in the process (after the President selects, but

before the Senate considers) by the Senate Judiciary Committee. On rare occasions, Presidents

also have made Court appointments without the Senate’s consent, when the Senate was in recess.

Such “recess appointments,” however, were temporary, with their terms expiring at the end of

the Senate’s next session. The last recess appointments to the Court, made in the 1950s, were

controversial because they bypassed the Senate and its “advice and consent” role. The

appointment of a Justice might or might not proceed smoothly. From the first appointments in

1789, the Senate has confirmed 122 out of 158 Court nominations. Of the 36 unsuccessful

nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of

committee or Senate opposition to the nominee or the President, were withdrawn by the

President or were postponed, tabled, or never voted on by the Senate. Over more than two

centuries, a recurring theme in the Supreme Court appointment process has been the assumed

need for excellence in a nominee. However, politics also has played an important role in

Supreme Court appointments. The political nature of the appointment process becomes

especially apparent when a President submits a nominee with controversial views, there are sharp

20 Article II, Section 2, clause 2

partisan or ideological differences between the President and the Senate, or the outcome of

important constitutional issues before the Court is seen to be at stake.

3.3.2. Methods of Appointment

Section 2, Article II, the United States Constitution states: "[The President] …shall nominate,

and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme

Court, and all other Officers of the United States…”

Justices of the Supreme Court, judges of the Circuit Courts of Appeals and the District Courts

[i.e. included under "all other officers of the U.S." referred to in the Constitution] all are

appointed by the President of the United States with the advice and consent of the Senate. These

justices and judges are appointed for life, and they can only be removed through impeachment by

the Congress. There is no statutory qualification for judicial appointment to the Supreme Court

or the lower federal courts.

3.3.3 Process of Appointment of Judges of the Federal Courts

The process of appointment of Judges of the federal court is discussed briefly:-

1. Vacancy

The process of appointment of a federal judge starts from the occurrence of a judicial vacancy.

The vacancy of a judgeship may arise from death, resignation, and retirement of a judge. Also,

vacancies can arise from legislation creating new judicial position and impeachment by the

Congress.

The process of appointment of federal judges is summarized with the help of a figure

(Appendix-II)

2. Selection and Nomination of Candidates by the President

The President nominates candidates for justices and judges to the Senate after he receives

recommendations from the Department of Justice and his own White House staff.

Department of Justice

The Department of Justice, which is supervised and directed by the Attorney General, is

responsible for making recommendations to the President concerning appointments to federal

judicial positions. Within the Department, the Office of Policy Development (OPD) has primary

responsibility for the judicial selection process of all Article III judicial vacancies. The staff of

the OPD interview a prospective nominee in person. They ask federal and state judges,

prosecutors, and defenders as well as other attorneys and support staff about the candidate’s

reputation and merit for the federal bench. They also examine any articles written by or about the

candidate, and review all of the cases, news, writings, and web sites mentioning the candidate, as

well as financial disclosure statements and a physician’s evaluation of the candidate’s health. A

questionnaire is sent to the potential candidate to collect his or her personal data. The OPD does

not solicit the candidate’s personal views on constitutional interpretation or political issues.

Instead, the candidate is asked whether he or she has any views that would prevent the candidate

from following the precedents of the higher courts or from being fair and impartial in all cases

that might come before the court. If the preliminary evaluation of a prospective nominee is

positive, the candidate’s name will be transmitted to the Federal Bureau of Investigation for

investigation and to the American Bar Association (ABA), an independent non-governmental

organization, for evaluation.

Federal Bureau of Investigation

The Federal Bureau of Investigation's (FBI) investigation of potential judicial nominees is

focused on general background issues. FBI agents usually begin their investigation by

interviewing the judicial candidate to confirm the accuracy of the candidate’s security

questionnaire, which requires information to verify education, jobs, and residences, as well as

any background issues since the candidate’s eighteenth birthday. FBI agents also interview

federal and state judges and other government officials, as well as attorneys, business and civic

leaders, religious and civil rights leaders, neighbours, and doctors. They also check for arrests

and convictions, civil lawsuits, and credit history. Additionally, a check on the candidate’s tax

record is included in the file. The OPD has stated that the FBI investigation is a critical

component of OPD’s evaluation of the candidate’s suitability for the federal bench.

The American Bar Association

The American Bar Association interviews judges and lawyers in the candidate’s community

about the candidate’s qualifications, including temperament, and also interviews the candidate.

At the end of the ABA process, the ABA sends an informal piece of advice to the Department of

Justice on its rating of the candidate as “well qualified,” “qualified,” or “not qualified” if the

President were to nominate the candidate. If the ABA rating is positive, the FBI report is

satisfactory, and the Department of Justice’s evaluation is favourable overall, the Attorney

General formally recommends the nomination to the President.

The White House

The White House Counsel’s Office works closely with the Department of Justice in the selection

of potential federal judges. Also, the Office works as closely as possible with Senators, and also

considers recommendations by Members of the House of Representatives, state Governors, state

judicial selection panels, bar associations, government officials, and citizens.

President

The papers sent by the Department of Justice to the President include:

1. A letter from the Attorney General to the President formally recommending the nomination;

2. A memorandum from the Deputy Attorney General to a "designated" White House Assistant

"touching on matters not in the Attorney General's formal letter" (typically who recommended

the candidate and what political clearances were obtained);

3. The candidate's resume or biographical sketch;

4. A summary of the FBI Report along with the complete report itself; and

5. All other file material on the candidate including the response to the personal data

questionnaire.

If the President approves the nomination, he signs it and sends it to the Senate.Following the

nomination, the Department of Justice submits the FBI Questionnaire, the results of the FBI

background investigation and the entire Senate Questionnaire to the Senate.

3. Confirmation by the Senate

The Senate acts in a unicameral capacity when it confirms federal judicial nominations. As the

Constitution provides, only the Senate's "Advice and Consent" are necessary for the

appointments of Judges of the Supreme Court and all other Officers of the United States. The

House of Representatives is not involved in the process of appointment of federal judges. Within

the Senate, the consideration of appointments to judicial positions is the responsibility of the

Committee on the Judiciary.

The Committee on the Judiciary

The Senate Committee on the Judiciary or the Judiciary Committee consists of 18 members.

Following the rule that majority party in the Senate controls a majority of committee seats,

voting results on the Committee are generally representative of the voting preference in the full

Senate.

Investigation

The Senate Judiciary Committee has its own staffers to examine the background of a judicial

nominee. The bulk of the investigation is conducted by the staff of the Chairman and the

minority party leader on the Committee. The investigation involves reviewing the FBI

Questionnaire, the results of the FBI background investigation and the entire Senate

Questionnaire. The Committee staffers ask the home state Senators of the nominee for their

opinion and conduct phone interview with the nominee to clear up any ambiguity encountered in

the file. Any information discovered by the staffers will be reported to the Committee members.

Confirmation Hearing

When the nomination is referred by the Senate, the Judiciary Committee is authorized to hold

confirmation hearing, and to take testimony by requiring by subpoena the attendance of

witnesses and the production of correspondence, books, paper, and documents. The confirmation

hearings conducted by the Committee are open to the public, and may be broadcast by radio or

television. The confirmation hearing of a Supreme Court Justice nominee starts by the Senate

Judiciary Committee Chairman’s opening statement which is followed by endorsement of the

nominee by prominent supporters, normally home state Senators. The nominee is invited to give

an opening statement. Then, the hearing will proceed to the questioning time of the nominee by

the Senators. After the nominee has given his testimony, other witnesses may follow and lend

their support for or opposition to the nomination.

Voting

After the confirmation hearing, Committee members will vote on the nomination. The quorum of

the Judiciary Committee is ten; while vote by proxy is allowed, proxies are not counted for

making a quorum. If a nomination gets a majority vote, it will go to the Full Senate. If the

Committee rejects a nomination with a majority vote, the nomination will be returned to the

President. In effect, the nomination dies. However, after rejecting a nominee, the Committee

may, if it chooses, vote to report the nomination to the floor - but it will be with an unfavourable

recommendation. When the Committee adjourns at the end of a session, all of the nominations

still pending in Committee stage will be returned to the President.

Full Senate

All judicial nominations reported from the Senate Judiciary Committee are considered by the

Senate in executive sessions. If a nominee is non-controversial, quite often the nomination will

be passed by unanimous consent and no floor debate is necessary. Confirmation of a nomination

requires a majority vote of the Senate. If a nominee is controversial there may be floor debate on

the nomination (this is only by Senators and the nominee is not present in executive sessions).

Historically, nominees who received an unfavourable recommendation by the Senate Judiciary

Committee have never been voted favourably by the Full Senate. The President is, from time to

time, furnished with an authenticated transcript of the public executive records of the Senate with

a list of all judicial appointments, confirmations and rejections.

4. Appointment by the President

When the Senate gives its advice and consent, the President signs the judicial commission which

officially appoints the individual. Historically, six judicial nominees declined the appointments

despite the Senate's confirmation and the President's appointment, and the last declination

happened in 1882.

Recess Appointment

Under the US Constitution, Article II, Section 2, Clause 3, the President: "shall have Power to

fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions

which shall expire at the End of their next Session."

When the Senate is not in session, and therefore unable to receive nominations, the President

may make recess appointments. The Senate will then consider the nomination when it returns to

session. A recess appointee exercises the same authority as an appointee who has been confirmed

by the Senate, although he or she may not command the same deference. The last appointment of

a judge under this recess authority occurred in 1981.

3.4 The Role of the Legislature in the Process of Appointment of Judges

In the U.S., the U.S. Congress is heavily involved throughout the process of appointment of

federal judges. This includes both selection of candidates and confirmation of nominations.

Selection of Candidates

The Congress's influence in the selection of potential candidates lies in its capacity to make

recommendation on potential nominees. According to the information obtained from the Senate

Judiciary Committee, it states: “The names of potential nominees [for Supreme Court justices,

court of appeals judges, and district court judges] often are recommended by Senators or

sometimes members of the House [of Representatives] who are of the President's political

party…”

District Courts

Traditionally, Senators are asked to recommend one to three potential nominees for a district

court vacancy in the state which the Senators represent. It is reported that the process of selecting

judicial nominees has become more time-consuming and prolonged in district courts level as

Senators are slow in making recommendations for district court vacancies.

Supreme Court and Circuit Courts

The involvement of Senators in the process of selecting candidates for the Supreme Court and

circuit courts judicial vacancies is slightly lighter. The Supreme Court and circuit courts have

jurisdictions that span the whole nation and several states. The President therefore has greater

discretion and defers less to individual Senators when selecting nominees for the Supreme Court

and circuit courts. When a vacancy appears on the Supreme Court or a circuit court, some

Senators may seek to influence the selection of the new nominee. In such cases, the President

may need to take their recommendations into account for political reasons.

Blue Slips

Before 1979, the counsel of the Senate Judiciary Committee sent out “blue slips” to the two

Senators from the nominee’s state and if it was returned marked “objection” by either Senator

regardless of party, the custom was that no confirmation hearing would be scheduled. This

custom was changed after Senator Edward Kennedy became the head of the Committee. He

made it clear that Senators who withheld the “blue slips” of persons nominated for judgeships

from their states could no longer rely on the chairman to kill those nominations. At present,

though negative blue slips cannot kill a nomination customarily, it remains a common way to

collect opinions of the Senators from the nominee's state.

Confirmation of Nominations

For years when there is a divided government with the President and the majority members in the

Senate coming from two different parties, intentional delays may result in Senators refusing to

bring controversial nominations to a vote, and instead using stall tactics to exhaust nominees and

force their withdrawal. In 1999 and 2000 (updated to 11 August 2000), there were respectively

50 and 60 federal judiciary vacancies. According to a study, the Senate took an average of 201

days to confirm President Clinton's judicial nominees, as opposed to 144 days during President

Bush's administration, and 138 days during the Reagan administration.

3.5 Summary of the process of Appointment of Judges in United States of America

1. Section 2, Article II, the United States Constitution states: "[The President] …shall nominate,

and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme

Court, and all other Officers of the United States…” All federal judges are appointed by the

President of the United States with the advice and consent of the Senate.

2. The process of appointment of a federal judge starts from the occurrence of a judicial vacancy.

The Department of Justice with the White House staff recommend judicial nominations to the

President. If the President approves, the nomination is signed and sent to the Senate.

3. Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees

will be investigated, testified and the nomination voted in the Committee. As the majority party

in the Senate controls a majority of the committee seats, the voting results on the Committee are

generally representative of the voting preference in the full Senate.

4. Confirmation of judicial appointments requires a majority vote of the Senate. All nominations

must be acted on in a session or they die at the end of the session. If a nomination is not acted

upon, they must again be made to the Senate by the President. When Senate gives its advice and

consent, the President signs the judicial commission which officially appoints the individual.

5. The influence of Senators in the stage of selecting nominees lies in the Senators' ability to

recommend potential nominees. Senators will be asked to recommend potential nominees for a

district court vacancy in their home state. In the cases of the Supreme Court or circuit courts

nominees, the President may need to take Senators' recommendations into account for political

reasons.

3.6 Judicial Interpretation of Appointment of Judges in America- Its Turning Point

In the famous case of Marbury V. Madison21-

The case began on March 2, 1801, when an obscure Federalist, William Marbury, was

designated as a justice of the peace in the District of Columbia. Marbury and several others were

appointed to government posts created by Congress in the last days of John Adams's presidency,

but these last-minute appointments were never fully finalized. The disgruntled appointees filed

the suit directly in the Supreme Court under section 13 of the 1789 Judiciary Act, seeking a writ

of Mandamus to compel Madison to deliver his commission.

Question Raised was- Is Marbury entitled to his appointment?

Chief Justice John Marshall concluded that-

Yes, justice Marshall concluded that Marbury’s appointment was complete upon his

authenticated signing by the President.

Two recent Supreme Court cases offer a modicum of guidance on the distinction between

principal and inferior officers. In Morrison v. Olson22, the Court determined that an independent

counsel was an inferior officer because her duties were limited, her performance of them was

cabined by the policies of the Department of Justice, her jurisdiction was confined to particular

matters, her tenure was restricted to the time it took to complete her assignment, and she held

office subject to removal by the Attorney General. In so holding, the Court eschewed a precise

formula for determining whether an officer is "inferior," declaring that it had no need to "decide

exactly where the line falls between principal officers and inferior officers."

21 5 U.S. 137 (1803); Constitutional Law book by Calvin R. Massey.

22 487 U.S. 654 (1988)for more details http://supreme.justia.com/us/487/654/case.html accessed on September 19 2008

In another case of US Supreme Court Jon E. Edmond, v. United States23

The Court defined the term "inferior officer" as encompassing those "whose work is directed and

supervised at some level by others who were appointed by Presidential nomination with the

advice and consent of the Senate"24. The Court did not overrule Morrison, however, but cited it

as precedent.

In Mistretta v. United States25, in this instance, Congress chose to place the appointing power

vis-à-vis interim United States Attorneys partially in the judiciary. If authorizing judges to make

such appointments is incongruous with the appointers' judicial duties or unduly interferes with

the proper functioning of the Executive Branch, any appointments so made would be null and

void. "While our Constitution mandates that 'each of the three general departments of

government must remain entirely free from the control or coercive influence, direct or indirect,

of either of the others,' the Framers did not require and indeed rejected the notion that the three

Branches must be entirely separate and distinct”26.

In an another interesting case, United States of America v. Fermin Hilario27, Fermin Hilario

moved to dismiss an indictment brought against him, claiming that the protracted tenure of a

court-appointed interim United States Attorney contravened applicable federal statutes, violated

the Appointments Clause, offended the separation-of-powers principle and, in the end, rendered

the indictment a nullity.

As a general rule, United States Attorneys are nominated by the President and, if confirmed by

the Senate, serve four-year terms. But Congress selected a different method for interim

appointees. So when the United States Attorney for the District of Puerto Rico resigned in May

of 1993, Attorney General Janet Reno appointed an Assistant United States Attorney (AUSA),

23 520 U.S. 651, 659-60 (1997) for Details http://www.law.cornell.edu/supct/html/96-262.ZO.html accessed on 19 September 2008;

24 520 U.S. at p. 663

25 488 U.S. 361, 381-82 (1989)

26 Mistretta, 488 U.S. at 380

27 For more details www.ca1. us courts.go v /pdf.opinions/00-1406-01A.pdf last accessed on 23.9.2008

Charles Fitzwilliams, to fill the resulting vacancy. Because the President failed to name a

replacement within 120 days, Fitzwilliams's appointment lapsed and the position once again

became vacant. On September 9, 1993, the judges of the United States District Court for the

District of Puerto Rico responded to the exigency and appointed a career Justice Department

lawyer, Guillermo Gil, as interim United States Attorney. The question which was raised by such

appointment was-

a) Whether the appointment offends the separation-of powers principle?

The Court concluded “Should the stand-in remain so long in office that he became

indistinguishable from the latter, an argument could be made that his continued service required

nomination by the President and confirmation by the Senate” and that Gil's appointment and

continued service as interim United States Attorney for the District of Puerto Rico comply with

the Appointments Clause28, and the doctrine of separated powers. Consequently, the indictment

against Hilario was duly authorized. It should not have been dismissed.

Chapter 4

Comparative Analysis of Appointment of Judges in India and US

COMPARISON

The appointment of judges in both the countries has been granted as executive power of the

President by both the Constitutions. But in India the appointment is made with the ‘consultation

with judiciary’, whereas in U.S the appointment is made with ‘parliamentary approval’. Both the

nation follows the ‘appointive system’ of judicial appointment where the appointments are made

by the executive government. At one time appointment of judges in U.S.A were used to be made

by the ‘elective method’ of appointment of judges, but during the latter part of the nineteenth

century, the general trend begin to move away from the elective system.

28 28 U.S.C. § 546(d),

Now the Comparative analysis as to the process of appointment of judges between India and

U.S.A can be better made by comparing the two methods in which the appointive method of

appointment of judges is employed, i.e.the appointive method with ‘parliamentary approval’ and

appointive method in ‘consultation with judiciary’. These mechanism were followed in order to

reduce the exclusive executive power to appoint judges.Since, the process as to appointment of

judges has already been discussed in detail, this chapter would only focus on merits and demerits

of the methods of appointment of judges in India and U.S.A.

Parliamentary Approval (Method of appointment in U.S.A)

Under this mechanism the executive government initially selects the candidates for judicial

office, but makes formal appointments only when the selections are approved by parliament. For

example, in the United States the President nominates and ‘by and with the Advice and Consent

of the Senate’ appoints federal judges. Parliamentary approval provides a check on the power of

the executive and there is scope for public scrutiny of the appointment process. Nevertheless, this

system has some inherent defects. Firstly, parliament has nothing to do with the initial stages of

selecting candidates. Since the initial selection of candidates is a vital issue in appointing judges

and it is exclusively vested in the executive, this system may not be effective to control pre-

eminent political or other relevant considerations in selecting candidates for judicial office.

Rather it may foster an increasing tendency to introduce political bargaining. Secondly, although

the requirement of approval by parliament may impose some restrictions on the discretion of the

executive government, it may not be effective to change the basic form of ‘political infighting’.

Moreover, it may ‘result in the kind of coalition building behaviour common in other legislative

matters’. Thirdly, if the party in power commands a majority in parliament, political ‘patronage

may still be a strong factor’ in appointing judges. Therefore, though parliamentary approval has

some implications for checking exclusive executive power in appointing judges and making the

appointment process open to the public through parliament, it has serious drawbacks. The

parliamentary mechanism is transparent and open to public scrutiny, but if there is a majority in

Parliament, nothing can be done: even if the public does not approve of the appointment.

Consultation with Judiciary and Legal Profession (Method of appointment in India)

On the contrary India follows an appointive method of judicial appointment in consultation with

the judiciary. The constituent assembly completely rejected the role of legislatures in the

appointment of Judges. But the Indian Constitution is silent on the aspect of the primacy of

opinion of Chief Justice of India in the matter of appointment of judges and rather it provides the

balanced approach in the matter of appointment of judges giving primacy to neither of the wings

nor the executive nor the judiciary. In other words the constituent assembly had intended a

totally different model for appointment of Judges i.e. ‘co-operative and consensual’ consultative

process for the appointment of judges in India which is not followed in India presently for the

reasons unknown and the judicial interpretations had further confused the whole issue.

Generally, under this method of appointment executive government appoints the judges in

consultation with the senior judiciary and legal profession (i.e executive primacy followed till

1993 Judgment which nullified the role of executive in the appointment process). Senior

members of the judiciary and legal profession are consulted, and the consultations may be formal

or informal. Judges are in a position to assess the performance of lawyers who are to be

appointed to judicial office. Therefore, consultation with members of the higher judiciary is very

significant in appointing the best-qualified persons to judicial office. It is an important means to

strengthen the independence of the judiciary Consultation with members of the legal profession

is also very important. A body representing the legal profession may be able to assess the

character and ability of the lawyers to be appointed as judges. It can help to select suitable

persons for judicial office. Therefore, the consultation system has significant implications for the

quality of the judiciary and public confidence in it. However, it has a serious limitation, because

the efficacy of consultations depends mostly on the attitude of the executive government. It

could be that after consultation with the judiciary and legal profession the executive government

will ignore the opinion given by them. Thus the ultimate weight of the consultation system is

dependent on the executive. If the executive is reluctant to give due consideration to the advice

of the judiciary and legal profession, this system is useless. In fact, consultation should be an

effective consultation and in this regard the Indian system of consultation with the judiciary is

worth consideration.

Chapter 6

Conclusion and Suggestions

From the above discussions it can be concluded that in the three judges cases, I, II & III –

S.P.Gupta Vs UOI reported inAIR1982 Supreme Court149, Supreme Court Advocates on

Record Association Vs UOI reported in 1993(4) SCC 441 and Special Reference 1 of 1998

reported in 1998(7) SCC 739, the Supreme Court has virtually re-written Articles 124(2) and

Articles 217 which pertain to appointment of Supreme Court Judges respectively. The word

“collegium” is no where present in the constitution. It was first used by Bhagwati J. in the

majority judgement of S.P. Gupta vs. UOI (4:3).Again in the Presidential reference the

expression “collegium” and “collegium of judges” has been freely used. It is submitted that any

addition of words in the constitution would not be permissible under the interpretive jurisdiction

of the Supreme Court. The Supreme Court has to interpret the constitution as it is.

Secondly, the advisory opinion in the guise of clarifying doubts raised regarding the norms laid

down in the Judges II case has virtually reviewed its earlier decision. It is respectfully submitted

that the opinion expressed in an advisory opinion is contrary to the plain language of article

124(2). What the article says is that the President shall consult the Chief Justice of India and such

of the judges of the Supreme Court or the high court as he deems necessary. The article does not

place any ceiling or limitation on the number of judges other than the Chief Justice of India to be

consulted. The President should always act on the aid and advice of the Council of Ministers

(Article 74). However, contrary to what was said in the Constitution, both the Judges II and

Judges III cases have laid down that consultation with the Chief Justice of India means a

collegium consisting of the Chief Justice of India and two or four judges as the case may be.

Further, in both the cases it was stated that it is the Chief Justice of India who should consult

with collegium of judges, whereas Constitution says that the President should consult the Chief

Justice of India and such judges as he deems necessary.

Thirdly, the three judges cases, i.e. the two judgments of the Supreme Court and one opinion on

a Special Reference have all dealt with the scope of “consultation” and it was in the Second

Judges Case that the Supreme Court evolved the concept of ‘primacy’ for the opinion of the

Chief Justice of India, which itself was to be based on a consultative process amongst the senior

colleagues of the Chief Justice of India. At the hearing of the Special Reference for the opinion

of the Court about the extent of the ‘consultative’ process, it was conceded on behalf of the

Executive (and recorded in the Court’s opinion) that the Government was not seeking a review

or reconsideration of the judgment in the Second Judges case and that it would accept as binding

(although an opinion and not a decision) the answers of the Court to the questions incorporated

in the Special Reference.

Fourthly, the Supreme Court’s opinion in the Special Reference not only strongly reinforced the

concept of “primacy” of the Chief Justice of India’s opinion but also increased the number of

judges the Chief Justice of India must consult before providing his opinion and laid down a

detailed set of guidelines on the procedure to be followed in arriving at the Chief Justice of

India’s opinion to which “primacy” was attached. The procedure in effect transferred the

“primacy” from the Chief Justice of India to the group of Judges to be consulted.

Fifthly, the collegium is now to consist of the Chief Justice of India and four (instead of

two)senior-most judges of the court in the appointment of a high court judge, the Supreme Court

judge acquainted with that particular high court should also be consulted raising the number to

six. The increased size of the group that has to be a part of the consultation process with several

interests being involved has made the consultation process cumbersome and delays in filling up

of vacancies is bound to arise. The Presidential Reference also provides that every

communication with the consultee has to be in writing and the views should be communicated to

the Government. There is no indication as to what happens if there is no consensus among the

consultees or if the majority dis-agrees with the Chief Justice of India. S.P. Gupta has laid down

that the entire correspondence and communication between various authorities are open to public

scrutiny (since the entire record was summoned, perused and made public in that case).

At the end it is stated that the point of conflict as to the process of appointment of Judges is the

question of primacy of the opinion between the executive and judiciary during the process of

consultation. It is well known that the constituent makers excluded the word “concurrence” and

instead used “consultation”. Their aim was clearly to maintain the balance between the two

wings and it was intended that both the wings need to play a co-operative role in the selection

and appointment of judges. The present controversy as to the process of appointment of judges in

India is the outcome of wrong interpretations made in Judges Case-I, II and III. The

interpretations as to Article 124 and 217 went beyond what the constitution has actually

provided, it infact amounted to re-writing of those provisions. The pretext for such an

interpretation given by the judiciary is that any interpretation ensures or supplement to the basic

feature of judicial independence is justified. But in my opinion Independence of judiciary must

be ensured within the four corners of the constitution and cannot go beyond the constitution.

Further, the concept of ‘independence of judiciary’ must not be applicable to the matters of the

appointment of judges, it is applicable only when judges are exercising there judicial function,

i.e. after their appointments. It is pertinent to mention herein that the concept of ‘independence of

judiciary’ is borrowed from the U.S Constitution, but during the process of appointment of

judges in U.S it is seen that judiciary is completely excluded from the process of appointment

and the concept of independence of judiciary has never been associated with the process of

appointment of judges. The Second and Third Judges’ cases are a naked usurpation of the

legislative function under the thin guise of interpretation. Such an interpretation endangers public

confidence in the political impartiality of the judiciary which is essential to the continuance of

the rule of law. The delicate balance of ‘judicial independence’ and ‘judicial accountability’ as

formulated by the constituent makers under Article 124 and 217 of the Indian Constitution has

been disturbed by the judicial interpretation and subject to judicial review. It is highly

unfortunate that, the Supreme Court instead of bringing more transparency and clarity in the

process of appointment of judges by being within the constitutional framework has surpassed the

written text of the constitution. The Constituent assembly clearly rejected the term ‘concurrence’

and instead used ‘consultation’ thereby giving primacy neither to the executive nor the judiciary

and intended for consensual decision amongst the executive and the judiciary for the

appointment of judges. The judges hopelessly misconceived the very nature of judicial function.

It is also unfortunate that such a violation is still continuing and is been facilitated by a fractured

polity, a divided bar, and weak legal academia.

Concluding, a National Judicial Commission should be set up, by constitutional amendment, to

wipe out these rulings. The Court’s basic approach must be corrected. The warning ‘be you ever

so high, the law is above you’ applies to judges as well as to politicians in power. As Aristotle

said, for a judge to seek to be wiser than the law is to the very thing which is, by wise laws,

forbidden.

.

BIBLIOGRAPHY

BOOKS

H.M.Seervai, “Constitutional Law of India”, Fourth ed. vol.iii, chapter xxv, p.2613,

Universal Law Publishing Co.Pvt.Ltd.

A.G.Noorani, “Constitutional Questions and Citizen’s Rights”, 2006, Oxford Publication.

Benzamin.N.Cardozo, “The Nature of Judicial Process”, Yale University Press., 1921, pp129

and 135.

Dr. Ranbir Singh & Dr. A Laxshminath, “Constitutional Law”, LexisNexis Butterworths

Student Series.

“The History, Philosophy and Structure of the American Constitution”, second edition,

LexisNexis Publications.

Arvind .P.Dattar, “Commentary on the Constitution of India, 2nd Edition, 2007, vol-I,

Wadhwa and Nagpur Publication.

M.V.Pylee, “Constitutions of the World, 3rd Edition, vol-I, Universal Law Publications.

V. Bhagwan, ‘World Constitution’ 6th revised edition, Sterling Publishers Private Ltd.

B.Shiva Rao, “The Framing of the Indian Constitution”, edited by Dr.Subhash.C.Kashyap.

Norman Redlich,John Atlanasio, and Joel.K.Goldstein, “Constitutional Law”, Second

Edition,LexisNexis Publication.

Craig R.Ducet, Constitutional Interpretation, Eight Edition, Thomson and West Publications.

ARTICLES

Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10.

Judicial Oversight or Overreach: The Role of the Judiciary in Modern India.

The Process of Appointment of Appointment of Judges in some foreign Countries: The

United States by Mr. Cheung Wai lam.

Federal Judicial Appointments- Gavel to Gavel.

The Appointing Power of the Executive by Alexander Hamilton Federalist No. 76.

The Appointing Power Continued and Other Powers of the Executive Considered Federalist

No. 77.

The Judiciary Department by Alexander Hamilton Federalist No. 78.

LAW COMMISSION AND COMMITTEE REPORTS

14th Report of the Law Commission of India,1958

79th Report of the Law Commission of India,1979

80th Report of the Law Commission of India,1977

121st Report of the Law Commission of India,1987

214th Report of the Law Commission of India,2008