Reading time : 8 minutes

The Constitution of India has within its framework divided the organs of the state in three parts, viz, the executive, the legislature and the judiciary. Each of the organs of the state is empowered equally and is given equal powers. The doctrine of separation of powers as enunciated in the landmark Kesavananda Bharti case of the Supreme Court has affirmed this view, therefore, each organ of the state is empowered trusted and expected to adhere to the constitutional duty that is bestowed upon them. In this article, we shall discuss about one of the organs i.e. the judiciary, about how it works, what are its duties and how the Judges of the higher courts are appointed, with the objective of performing their Constitutional duties. We shall also discuss the first judges case, the second judges case, the third judges case, the NJAC case and recent developments focusing around appointment of judges.

Brief History of Constitutional Courts in India

The beginning of legal system prevalent in India in 21st Century owes its allegiance to the British Empire, which, along with other changes in Indian society, brought the culture of common law Courts or English Courts to the Indian sub-continent. The history of High Courts in India can be traced back to The Indian High Courts Act, 1861, which established chartered high courts in the presidency of Calcutta, Madras and Bombay. Few years later, another high Court was established at Allahabad.  The Indian High Courts Act of 1861, along with the establishment of high courts in India, also gave the pre-requisites or qualifications required for the Judges of the high courts. The judges then appointed would serve at the pleasure of the British government.

Thereafter, by the Government of India Act, 1935, a Federal Court was enacted, at New Delhi, which in-turn would hear appeals from the High Courts established in India. Above the federal court, there was the Privy Council which sat in UK. The Constitution of India abolished the Privy Councils and the Federal Court was thereafter, post enactment of Constitution, converted into what is today known as the Supreme Court of India.

Constitutional Provision relating to appointment of Judges

  • Article 124(2): 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…….
  • Article 217: Appointment and conditions of the office of a Judge of a High Court

(1) 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………

Appointment of Judges in the early years of Constitution (1950-1973)

In the initial years of the Constitution and its working, a practice was developed by which the Chief Justice of India initiated appointments. Article 124(2) as originally enacted empowered the President to appoint judges of the Supreme Court after consultation with such judges of Supreme Court and High Court as necessary. Even the Constituent Assembly was clear that it wanted an independent judiciary and a court in which the judges should be first rate and acknowledged as first rate in the country.

Between 1950 and 1973 the Supreme Court travelled a great journey in developing and molding the Constitution, primarily Part III which consisted of fundamental rights. The Court, which was once hailed as executive friendly at the time of AK Gopalan v State of Madras in 1950 came onto become more of a protector of individual liberties and rights. The highest watermark of such protection led to the famous case of Kesavananda Bharti v State of Kerala in 1973.

From the coming into force of the Constitution till 1970, appointments to the Supreme Court were made by the government on the recommendation of the Chief Justice. This practice was met with some friction post the judgement of Golak Nath v State of Punjab in which the Supreme court held that the Parliament could not amend any fundamental right, in RC Cooper v Union of India the court struck down nationalization of fourteen private banks, and in Madhav Rao Scindia v Union of India the court struck down the abolition of privy purses. All these judgments, involved interpretation of the Constitution and in every instance, there was judicial invalidation of measures taken by government of the day which curtailed the power of the Parliament. This tussle made the government of the day reserved in approving or accepting the recommendations made by the Chief Justice for appointees to the Apex Court. The result was that pro-government judges were selected so as to ensure a decision in favour of the executive.

The starkest example came to be seen when in Kesavananda Bharti v State of Kerala, after losing with the barest of margins (7-6), the government approved the appointment of Justice AN Ray as the Chief Justice of India, superseding three Supreme Court Judges, who were senior to him, thereby breaking the convention of appointing the senior-most judge as the Chief Justice. Justice AN Ray superseded Justices JM Shelat, KS Hegde and AN Grover as all of them had ruled against the government in Kesavananda Bharti case and AN Ray ruled in favour of the government. 

Emergency proclamation and its impact on judicial history/appointments

Post the decision of Kesavananda Bharti, the Supreme Court had shifted the powers away from Parliament. And what was to follow was totally unprecedented. On 12-June-1975, Justice JL Sinha of the Allahabad High Court, in an election petition filed by Raj Narain against Prime Minister Indira Gandhi under Representation of People Act, 1951, held Mrs. Gandhi guilty of two corrupt electoral practices and disqualified her for 6 years. This decision created turmoil within the government. It was also delivered while the Supreme Court was on vacation.

An urgent application for stay against the judgement was made before a vacation bench of Supreme Court. The Supreme Court on 24-June-1975, declined to grant a total stay of Allahabad High Court judgement. The immediate effect was that Emergency was proclaimed early on 25-June-1975, a day after the judgement. While the appeal of Mrs. Gandhi was pending in the apex court, the parliament enacted the Constitution 39th Amendment Act, 1975 by which Article 329A was inserted into the Constitution by which a dispute on PM’s election was retrospectively taken out of jurisdiction of courts and freed from ordinary election laws like Representation of Peoples Act, 1951. The Supreme Court in Indira Gandhi v. Raj Narain held 39th Constitutional Amendment as unconstitutional but allowed her appeal on facts from the High Court judgement.

Thereafter, what is popularly known as the habeas corpus case, ADM Jabalpur v Shivakant Shukla happened, in which by a majority of 4-1, the Supreme Court held that during emergency any detention order, even if made malafide and without authority if law, could not be judicially reviewed. The sole dissenter was Justice HR Khanna, who was next in line to be the Chief Justice of India. The impact of Justice Khanna’s dissent was that he was superseded by Justice Beg for being appointed as the Chief Justice. Hence the government of the day again bypassed the seniority rule and sent out a clear message to anyone, who refused to toe its line.

The impact of ADM Jabalpur was that judiciary was affected by deliberating executive interference; this impact was long lasting and led to the culmination of the three judges Cases which gave the ratio of appointing the judges to the higher judiciary.

SP Gupta v Union of India or the First Judges Case

In 1982, the matter of appointment of judges to Constitutional courts, i.e. the high courts and the Supreme Court came before the Supreme Court via a PIL. The main question raised in SP Gupta was that: of the several functionaries participating in the process of appointment of a High Court Judge, whose opinion amongst the various participants should have primacy in the process of selection?

 The Supreme Court after analyzing texts of the Constitution held the following:

  • That the opinion of CJI and CJ of HC were merely ‘consultative’ and that “the power of appointment resides solely and exclusively in the Central Government”
  • The Central government could override the opinions given by Chief Justice of India and Chief Justice of concerned High Court
  • The primacy of appointment lay with the Executive.
  • The opinion/advisory was not binding on the government.

Thus, there was a literal interpretation to the word ‘consultation’ in Articles 124(2) and 217(1) in relation to all consultees and final decision in the matter was left in the hands of the Central Executive. However, this judgement of the Supreme Court was criticized by subsequent benches and as a result in Subhesh Sharma v Union of India, the bench suggested the ratio of SP Gupta to be reconsidered by a larger bench.

SCAORA v Union of India or the Second Judges Case

Because of the observations made in Subhesh Sharma v Union of India, a bench of 9-Judges was created to reconsider the ratio of SP Gupta v Union of India. In this case the court considered the question of primacy of the opinion of the Chief Justice of India in regard to appointment of Supreme Court Judges. The Court emphasised that the question has to be considered in the context of achieving the constitutional purpose of selecting the best candidates for the composition of Supreme Court. The key highlights of the ratio as enunciated in the second judges case are as follows:

  • The word ‘consultative’ as envisaged in Article 124(2) for appointment of Supreme Court judges indicates that the government or the executive does not enjoy ‘primacy’ or ’absolute discretion’ in the matters of appointment.
  • It was opined that the Chief Justice was the best equipped to know and assess the candidate and its suitability for the Apex Court
  • Primacy of the opinion of the Chief Justice would in effect mean opinion of the Chief Justice of India formed collectively after taking into account the views of his senior colleagues who are part of the consultive process for the selection of candidates.
  • The appointments to the Apex Court are initiated by the Chief Justice of India
  • The consultation within the members should be made in writing
  • The senior-most judge should be appointed as the Chief Justice and a departure from that rule should be made in cases only of a candidate of outstanding merit and reasons for such to be recorded in writing.

These were only some of the key highlights from the second judge’s case. What this decision did was it restored the power of appointments to the Supreme Court to the Chief Justice of India. This was done to keep executive interference within the judicial system to a minimal level. This case laid the foundation of a more effective process whereby candidates were selected without having political bias or favoritism.

 In Re: Presidential Reference or the Third Judges Case

After delivering the landmark judgement of SCAORA v Union of India, the President of India asked for advisory opinion of the Supreme Court on clarifying some points enunciated in the second judge’s case. The Supreme Court while exercising its advisory jurisdiction under Article 143 of the Constitution held that:

  • For ‘consultation’ process for the appointment of judges to the Supreme Court, the collegium is to be constituted comprising Chief Justice and four senior most Judges of the Supreme Court.
  • For the High Courts, the collegium comprises of Chief Justice of India and two senior most judges of the Supreme Court.
  • For every appointment, the majority of judges have to be in favour of such appointment.
  • A High Court judge, regardless of his inter-se seniority amongst high court judges can be appointed to the Supreme Court if he has outstanding merit, or if a particular high court is not represented on the Supreme Court Bench.

This judgement therefore made the collegium system comprising of CJI+4 judges in case of Supreme Court; and CJI+ 2 judges for appointments for High Courts. The responsibility therefore has been put on collegium and not on the Central Executive to make appointments.

SCAORA v Union of India (II) or the NJAC Case

 This case was a result of a challenge to the NJAC Bill which was enacted by the 1st Modi government. The 99th Constitutional Amendment and the NJAC Act sought to substitute the judicially evolved collegium system of appointment of judges with a more broad based appointment system-the NJAC. But the Supreme Court of India in a judgement of 4-1 majority held that the NJAC Act as unconstitutional as violating the doctrine of basic structure.

By striking down the NJAC Act, the Supreme Court has restored the primacy of collegium system for appointment of judges. We have now again gone back to the collegium system of appointment of judges as held applicable in the second and third judges case. The Supreme Court has therefore, held that the matters relating to appointments to the higher courts will be done by a judicially created concept of collegium.

What are the reservations against the collegium system?

When one talks about constitutional office, one is bound to scrutinize the persons appointed to hold such office and the method by which such appointments are made. The positions of judges of the High Courts and the Supreme Court are very high in terms of constitutional dignity. They are the people appointed to keep the executives and the legislature’s powers in check, and therefore, it is expected that the persons appointed for the same are of the highest order.

But over the years, the people and their representatives, i.e. the legislatures and the executive have felt reservations against appointment of persons to such office. The primary reason that the governments do such behavior is to make sure that the persons which are picked and appointed have a certain alignment with the working of the government. As a result a friction develops between the organs of the state. But to summarize, following points are some of the reasons of the operation of collegium system; they are:

  1. There is no word such as ‘collegium’ anywhere written in the Constitution; it is a judicially evolved concept; hence the Parliament and the Executive feels that Judiciary is entering into the field or domain of Parliament by overruling a enacted law; which the Parliament is empowered to do in the first place, thereby overreaching its function.
  2. Lack of transparency- The written observations while selecting a candidates are not published publically, hence, the people don’t trust the discussions that take place behind closed doors;
  3. Lack of diversity of states- when one looks on the list of Judges appointed to the Supreme Court, one finds that the more established high courts of Delhi, Calcutta, Madras, Bombay and Allahabad give more judges than any other high courts; such composition lowers the image of Supreme Court as a National Court;
  4. Lack of Women- It is strange that even almost 75 years post-independence, the percentage of women representing the bench has been abysmal. With only handful of appointments and never a Chief Justice of India being a woman, the collegium system has failed to promote gender equality.
  5. Low representation of minorities/backward classes- With only one Sikh ever to appointed as CJI discloses such drawbacks within the religious and caste lines.
  6. There is also a strong feeling within the country that families that have judicial connections or have someone practicing in higher courts gets the opportunity to serve on the bench. The Court has to be magnanimous to ensure that first generation lawyers, from anywhere around the country, are eligible and looked upon as eligible, given their merits to serve on the bench.
  7. There are no guidelines present for appointment of judges; hence many a times worthy candidates are not selected.
  8. The Collegium must at times believe that Executive is also working in a bonafide manner. TO presume that executive involvement in the consultations per se would render the process void is not the correct approach of Collegium.

What works in favour of the collegium?

We have looked at the demerits. But to fully understand the effectiveness of collegium one has also got to look at the positives that have emerged from the collegium system of appointments. Some of those advantages or positives out of collegium are:

  1. Collegium ensures that CJI along with 4 senior judges in cases of Supreme Court and CJI plus 2 senior most judges for appointment of judges to high courts; hence the primacy of CJI is not ensured; but an effective consultative process is developed, in which every senior judge of Supreme Court gives opinion.
  2. The executive interference in the appointments of judiciary, especially when one recalls the era of 1970’s, where the political class appointed judges who agreed with their line of thinking has stopped since the emergence of collegium. The Central government can ask the collegium to reconsider their recommendations, but if the collegium reiterates those recommendations, the government is bound to accept those.
  3. Since the supersession of Justice HR Khanna, no Supreme Court judge has been superseded.
  4. The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative.
  5. The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.

Some recent trends in appointment of Judges

When Justice NV Ramana took over as the 48th Chief Justice of India, one of the major problems that he would have faced was the appointment of judges to high courts and the Supreme Court. In the early parts of June 2021, all the high courts combined were working with almost 40% vacancy with some high courts even going beyond that. When one looks at such numbers, it hardly seems a surprise that there would be pendency of cases amongst the Courts in India.

But in a first, the collegium of Supreme Court recommended 9 persons as Judges of Supreme Court, taking the total strength of Apex court to full strength barring one vacancy and the recent move of approving 68 names as Judges for High Courts is also a step in a positive direction. One can only hope that with as much swiftness as was shown in matters of appointment to Supreme Court, the Executive clears the name for High Courts, so as to ensure that High Courts, which are equally important as Constitutional Courts, are working with their full capacity and ensuring proper justice is administered to the citizens of our country.


The idea of independence of judiciary is paramount and integral to the Constitution. It is only when the judiciary is independent it is able to perform its role as envisaged in the Constitution. Although to presume that political executive has no role to play and cannot form an effective part of consultative process in the appointment system is also wrong. An appointment system with absolutely no role for the political executive is neither feasible nor desirable.

What the three organs of the State, i.e. the executive, the legislature and the judiciary ought to do is to create a mechanism by which neither of them transgresses each other’s space of working and create an effective appointment process which removes the defects of collegium- mainly the transparency. Even the Judiciary needs to be optimistic and needs to trust the other organs to impart their constitutional duty in a bona fide manner. It is only then that the judiciary, which is known as the last protector of individual liberties and democracy, will impart and fulfill its role, as envisaged in the Constitution.


Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s