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  • Writer's pictureLAWGIC STRATUM


Author: Manali Agrawal


Judiciary is one of the three organs of the government. It is a three-tier judicial system with the Supreme Court (Herein referred to as the SC) at the apex. Below it is High Courts (Herein referred to as HCs) at the state level and then other subordinate courts below the HCs. The Judiciary is responsible for interpreting the Constitution, deciding the validity of the legislations framed by the legislators, protecting the Fundamental Rights of the people, deciding the controversies and, maintaining the supremacy of the Constitution of India. Judiciary is also considered as “a watching tower above all the big structures of the other limbs of the state.” Therefore, it is important to ensure that the Judiciary is independent of the other organs of the government. It thus becomes an important aspect that the Appointment of judges to the SC and HCs is done based on merit and not on any political considerationfor securing independence and objectivity of the Judiciary.


The Constitution of India provides that every Judge of the SC is to be appointed by the President by warrant under his hands and seal after consultation with such of the judges of the SC and of the HCs as the President may deem necessary for the purpose.[1]

For the appointment of HC judges, The Constitution provides that every Judge of an HC is to be appointed by the President by warrant under his hands and seal after consultation with the Chief Justice of India (Hereinafter referred to as the CJI), the Governor of the State, and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the HC.[2]


There has been a series of controversies regarding the term “Consultation” used in Articles 124(2) and 217(1) of the Constitution. The whole controversy revolves around the fact that participation of the Central and State Executives, as the case may be, in the process of selection of Judges to the SC and HC provides scope for political influence over Judiciary. The controversies are mainly concerned with removing arbitrariness, either political or individual, in the process of selection of Judges to the SC and HCs.

1. First Judges Case: In the case of SP Gupta v. UOI[3] popularly known as the First Judges Case, the SC addressed the issue that amongst the various functionaries in the process of selection of Judges to the SC and HCs whose opinion should be given primacy. The Court gave literal interpretation to the term “consultation” and held that consultation means “exchange of view” amongst the functionaries in the selection process of Judges and the President is not bound to act following the opinion of other functionaries consulted and that the CJI has no primacy in the selection process. Thus, the final authority solely and exclusively rests with the President.

2. Subhesh Sharma Case: In the case of Subhesh Sharma,[4] the judgment given in the SP Gupta case was criticized and it was observed by the SC that the role of CJI is crucial in the procedure of appointment of the SC and HCs Judges. The Court realized that primacy must be given to the opinion of the CJI to improve the quality of the selection of Judges as he is best suited to assess the worth of the candidate for appointment as a judge. It will also eliminate political influence in Judiciary.

3. Second Judges Case:To reconsider the matter, a nine Judge bench was constituted in the case of Supreme Court Advocates-on-Record Association v. UOI[5] popularly known as the Second Judges Case. In this case, the judgment in SP Gupta Case was overruled. It was observed that the CJI must have primacy in the appointment process and the executive must act as a check on this power of the CJI. Collegium System was created in this case. It also provided that the seniority of a Judge must be kept in mind while appointing the Judges to the SC and HCs.

The Court was of the view that if the decision is reached by consensus, no question of primacy arises. However, if there is a conflicting situation as to the appointment of the Judges, primacy lies with the CJI, except when a strong reason as to why the appointment is not considered suitable is known by the executive and disclosed to the CJI.Thus, the political influence was put to a minimum in this case.

4. Third Judges Case: In Re: Presidential Reference,[6] the SC elaborated on the issues in the above judgments more clearly in an advisory opinion under Article 143 of the Constitution. The Court reiterated that the opinion of the CJI must be reflective of the opinion of the Judiciary. It held that the opinion of the CJI must necessarily have the element of “plurality” in its formation i.e., he must also take into account the views of other concerned SC and HC judges to keep a check on the possibility of arbitrariness, favoritism, or biases on part of the CJI.

The Court held that while appointing an SC judge, CJI must consult the collegiums consisting of the CJI and the four senior-most puisne Judges of the SC and while appointing an HC Judge, the views of his two senior most puisne Judges is compulsory, the views Chief Justice of the HC given the greatest weight. It also brought transparency in the process by providing that the recommendation of each functionary must be in writing.


The Law Commission of India advocated the idea ofestablishment of a National Judicial Service Commission in its 121st Report issued in 1987 to appoint Judges to the SC and HCs. The objective of the report was to dilute the executive power and prevent its interference in the judiciary. The National Commission to review the working of the Constitution has also recommended the same in its report in 2002.

Accordingly, in 2014, NJAC was established by the Union Government by the 99th Constitutional Amendment and the NJAC Act. NJAC was to replace the collegiums system in India. However, the amendment was declared voidand NJAC was quashed by the SC by 4:1 majority on 16th October 2015 as being violative of the basic structure of the Constitution.


However, the fact that on what grounds or considerations, the appointment of a judge is confirmed is not subject of judicial review, the process of decision making is made justiciable by the Supreme Court.

The judicial review is available on the following grounds:

1. If the views of Concerned Judges have not been sought or considered by the CJI and his senior-most colleagues while deciding for the appointment of a Judge;

2. If the appointed person does not fulfill the eligibility criteria under Article 124 and Article 217, as the case may be, of the Constitution.


As a result of the aforementioned landmark judgments, the role of the Governments has been minimized with regards to the appointment of the Judges and the effective power to appoint the Judges to the SC and HCs at present resides with the Collegium consisting of CJI and the four Senior most puisne judges. It was done to secure the independence of theJudiciary from any kind of political considerations and pressures. For the appointment of CJI, there is no such mention in the constitution that the senior most Judge of the SC is appointed as the CJI, it is appointed by convention. Theoretically, the final power of appointment of the SC or HC Judges rests with the President. The President, in reality, is bound by the recommendation made by the Collegium of Judges.


[1] Article 124(2) of the Constitution of India, 1950 [2] Article 217(1) of the Constitution of India, 1950 [3] SP Gupta v. Union of India, AIR 1982 SC 149 [4]Subhesh Sharma v. Union of India, AIR 1991 SC 631 [5] Supreme Court Advocates-on-Record Association v. UOI, AIR 1994 SC 268 [6] Re: Presidential Reference, AIR 1999 SC 1

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