The doctrine of Separation of Power that was envisioned by the constitution makers and then incorporated as one of the basic structures of the Indian Constitution, provides very clearly for the independence of Judiciary. It is the Judiciary through its courts of laws that upholds the democracy of this nation and keeps the other organs of the state machinery accountable for their actions.

However, over the years the meaning and scope of this independence of the judiciary have been much discussed and deliberated upon, raising questions as to whether such independence is absolute or if it suggests an insubordination of the executive and legislature. One such branch of discussion grew around the powers of appointments of judges of High Courts and Supreme Court. Judges are an integral part of the judiciary and a transparent, clear and democratic system dealing with the appointment of Judges is necessary for the continuance of an efficient judicial system which upholds the trust of the people, guards the constitutional values and democracy and balances the other organs while keeping them in check.

Article 217(1) of the Indian Constitution provides that every judge of a High Court shall be appointed by the President by warrant under his hand and seal on consultation with the Chief Justice of India, the Chief Justice of the concerned High Court and the Governor of the concerned state. Through this article, the power of appointing the judges is placed upon the President of India and thus, the executive. The first judges transfer case, which took place in 1981 was one of the first instances where this balance between executive's power to appoint judges and the potential effect it could have on the independence of the judiciary was discussed.

The case set a precedent for the evolving the system of appointment of the judges and putting in place a 'Collegium System'[1] was discussed. Subsequently the second and third judges transfer case put into effect the Collegium system and also modified it to address the loopholes in the system. The fourth and the most recent judges transfer case of 2015 abolished the National Judicial Appointment Commission that was introduced for the selection of candidates for the post of a Judge of a High Court.

The other side of the argument remains however, that the collegium system while keeping a check on the influence of the executive on the judiciary, is itself a non-transparent and ambiguous process and is not in consonance with the very democratic value it seeks to protect. This paper discussed the stages of development of the present system of Appointment of the Judges through the four judges transfer cases in its relation to constitutional democracy. The article seeks to understand the tussle between the executive and judiciary and potential impacts of both on the judicial system as a whole.

Judges Transfer Cases

The appointment of judges has been seen to be closely connected with the independence of judiciary. Three major judgements in the last two decades of the twentieth century took cognizance of the same and worked on evolving a system of appointment and transfer of judges.

S.P Gupta v Union of India[2]

The case of SP Gupta v Union of India is the first judges transfer case, that took place in 1981. This case set the precedent for incorporation of a Collegium System that was subsequently developed. The case developed through a bunch of petitions that were filed across different high courts in India primarily against the issue of appointments and reappointments of additional judges, which the petitions alleged directly affected the independence of judiciary in India.

Some key issues that were challenged were the non-extension of the term of an additional judge, the order of the Union Law minister directing Chief Ministers directing appointment of additional judges in other states, as well as the appointment of additional judges in the Supreme Court.

Judgement of the Case:

In the Judgement of the Case, it was held the while the non-extension of the term of the additional judge, Justice S.N. Kumar was valid, it pointed out in the difference in the use and implementation of Article 224(1) by the executive and the interpretation of the article itself. Article 224(1) provides that President of India can appoint additional judges in High Courts when there is an increase in the business of the courts and that such appointments cannot exceed a time period of 2 years. These appointments are also subject to the conditions for appointment of a judge as provided under Article 217.

The court saw the interpretation of the article as, those appointments of judges which were temporary for reasons of dealing with increased work load in certain high courts for a limited period of time. The appointments of additional judges were to be so as to clear off the arrears of the court within two years. The nature of appointments was temporary, and the additional judges were expected to go back to the bar after serving their term. This was under the presumption that the government would appoint a sufficient number of judges in the higher judiciary, which would be able to deal with the work load in the courts in ordinary course of nature and therefore, the appointment of additional judges required would only be for a limited period of time.

However, the implementation of the Article, by appointing and re-appointing additional judges had led to a practice that the appointment as a additional judge would subsequently lead to an appointment for the permanent post of judge and the appointees had a right to form a legitimate expectation to be subsequently considered for the posts of permanent judges. There was also a strict emphasis on how appointments for additional judges cannot be made when there were vacancies in the posts of permanent judges.

In the judgement, there has been an overall disapproval of the practice of appointments of temporary judges, as it left a possibility of misuse of power for the appointed judges would ideally have to return to the bar. In case of an ideal implementation of judge, the additional judges would have served for a temporary term and would therefore have a lesser chance of misusing their position after they returned to the bar, but because there has been a continuous practice of extension of the terms of the additional judges, the scope of misuse also increases.

The meaning and Nature of Consultation

A long and essential part of the Judgement discussed the meaning and nature of the term 'consultation' as used under Article 217(1).

The article reads as follows:

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
   
   Here, the word 'consultation' subjected, to some extent, the power of the executive power held by the president to appoint judges, to the constitutional functionaries i.e., the Chief Justice of India, the Chief Justice of the High Court and the Governor of the state. The meaning of consultation was seen to be full and effective consideration by the constitutional functionaries based upon full and identical material and not on irrelevant consideration. However, according to the judgement such consultation did not mean that the opinion the Chief Justice was to be given primacy, nor were the opinions provided were binding upon the president.
   
   The judgement saw the power of the appointment of judges to be vested in the President and by his virtue in the Union government. While the dangers of vesting of power in a 'single person' were realized, the judgement believed that the process of consultation of the constitutional functionaries, serves to an extent as a safeguard, but at the same time clearly pointed that such a mechanism did not mean that the opinion of the Chief Justice of India enjoyed a primacy in the process of consultation and that the end decision was still upon the president.
   
   The judgement however very clearly highlights that the inclusion of the provision of consultation indicates that the constitution makers wanted to keep a safeguard against the power of the President while appointing judges, as a means of ensuring independence of the judiciary. Further, the judgement points how simply consultation does not provide an adequate safeguards and suggests the formation of a 'collegium' which would recommend candidates for appointment to the president. This collegium would have wider and broader scope of interests in making consultations to the president. The collegium would consist of those, who are expected to have the knowledge as to the persons fit for appointment and would allow for recommendations of candidates that would make for independent judges, investing into the judicial proceedings meaning and significance for the deprived sections of the society[3].
   
   The instances of other nations like Australia and New Zealand were also provided here, both of which had been leaning seriously towards the formation of a Judicial Commission for appointments in the higher judiciary and emphasized that the Indian government must also focus on the same.
   
   The judgment also emphasized on formation of the collegium to decrease the influence of the executive in the appointments in higher judiciary so as to maintain the independence of the judiciary. While the power of appointments was vested in the President, and was executive in nature, it was not absolute, and had to be performed with safeguards, which then were the constitutional functionaries, and that would be the ideal role of the collegium as well, if so formed.
   
   

   Significance of the Judgement

   The judgement was quite significant in so as far as setting the precedent for the introduction of a collegium system. Th judgement presided over certain important questions of law, and in the context of independence of judiciary it provided the understanding of the word 'consultation' as used in Article 217(1). The judgment provided that the process of consultation was a necessary safeguard in the practice of appointment and transfers of judges. There were detailed deliberations on the question of Independence of Judiciary in the context of appointments and transfers of judges. The judgement on the same question provided that while, the independence of judiciary was of utmost importance.
    

2. Supreme Court Advocates-on-Record Association v Union of India[4]

   This case arose out of writ petition filed in the form of a PIL by Advocate Subhash Sharma and the Supreme Court Advocates on Record Association for relief by filling the vacancies for permanent judges in high courts as well as the Supreme Court. A nine-judge bench was subsequently formed to look into the question of justiciability of fixing the number of judges as well question re-taken up to look into whether the CJI's opinion should enjoy primacy while appointing judges under Article 217(1), which was rejected in the S.P Gupta case.

Judgement of the Case:

The judgment overruled the view held in the S.P Gupta case which placed primacy over the President in the appointment of judges. The judgement held that the consultation with the CJI should be given primacy in matters of appointment of judges in the higher judiciary. Moreover, the judgment also emphasized that the consultation with CJI must also include the opinions of two most senior judges of the Supreme Court so as to ensure that the CJI is not providing an individual opinion but one that was formed collectively by the persons serving at the Apex court of law.

The judgment interpreted the word consultation to mean 'concurrence' of the opinion of the CJI. While the opinion of the CJI was still not absolutely binding upon the President, dissent from such consultation was only permitted under specified circumstances and not based on the individual opinion of the president. By this, the judgment reduced the role of the President in the appointment of judges. The concurrence in the collective opinion of the CJI and the senior judges was seen to be more important as these judges were better equipped to fully assess the appointment or non-appointment of judges and their suitability in the higher judiciary.

The procedure provided that in case of appointments where the opinion of the CJI differed from that of the senior judges so consulted, and where the opinion of the latter was for non-appointment of the recommendation by the CJI to which the executive agreed, then non-appointment would stand valid. Similarly, in case of appointment of judges in the High Courts, where the opinions of the CJI and the CJ of the high court conflicted, non-appointment for valid reasons based on relevant material was acceptable.

Significance of the Judgement
The judgement plays a significant role in as far as the establishment of the Collegium System is concerned. In 1990, the Constitution (Sixty Seventh Amendment) Bill, 1990 was introduced in the parliament which made a provision for the constitution of a high-level judicial appointments commission known as the National Judicial Commission, which could be formed by the president.

The bill provided that the CJI would serve as the chairperson of such commission, and for any appointments in the Supreme the commission would consist of the CJI and two most senior judges of the Supreme court. For appointments in the High Court, the commission would consist of the CJI, serving as the Chairperson, the Chief Minister of the State, next senior most judge of the Supreme Court, the Chief Justice of the High Court and the next senior most judge of the High Court.

This bill provided that the commission was to make recommendations to the president for appointments of judges, and for the transfer of judges as well. The commission would serve to be more transparent and to remove arbitrariness from the process of appointments and transfers of the judges.

However, when the bill was not passed in the parliament, the court took it upon themselves to resolve the problems arising out of the outdated model of appointments that was in practice. There had been several instances, including the said amendment bill, the 121st report of the Law Commission and even international practices, which all provided for the formation of an appointments commission so as to decrease the influence of the executive and to maintain the independence of the judiciary. But despite this, when there was no significant change seen the process, the judgement introduced the system of Collegium, which was to make recommendations to the president.

Thus, by the way of the judgement, the collegium system became a result of Judicial Pronouncement. The collegium system was seen to provide a far more credible and transparent process for recommendations, appointments and transfers of judges in the higher judiciary. The system however did not provide a broader representation as was imagined by Jt. Bhagwati in the S.P Gupta case, and kept the membership limited to senior judges.

In Re Special Reference 1 of 1998[5]

Exercising his power under Article 143 to consult the supreme court of India, the president of India, made a reference to the Supreme Court in the respect to three issues, which were as follows:

1. The issue of consultation by the CJI and other senior judges of the supreme court by the president in the matter of appointments and transfers of judges in the higher judiciary.
2. Judicial review of transfer of judges
3. The relevance of seniority of judges while making recommendations

It was clearly put down by the Attorney General that the Union of India is not seeking a review of reconsideration of the 1993 judgement in this regard, and has restricted itself to the questions posed in the reference.

Reference Provided:
The reference so provided to the question posed served not just as replies to the reference but also laid down certain more clarifications in regards to the Collegium System. These included:

1. The opinion of the CJI, which has primacy in the process of consultation and reflects the opinion of the judiciary, has to be formed collectively on the basis of consultation with the collegium, comprising of the CJI and the four senior most Judges of the Supreme Court. The Judge, who is to succeed the CJI should also be included, if he is not one of the four senior most Judges.
2. Views of the senior most Judges of the Supreme Court, who come from the same High Courts where the persons to be recommended are working as Judges, must be obtained in writing, if they are not part of the collegium.
3. The recommendation of the collegium and the views of the member, along with the views obtained of any other judge for the purposes of appointment should be conveyed by the CJI to the government of India.
4. The substance of the opinions of all those consulted by the CJI, particularly of any non-judges should be stated in the memorandum and should be conveyed to the Government of India.
5. The collegium system should in ordinary course of things make recommendations on the basis of consensus of the opinions of the members. However, no one would be appointed in the case the CJI dissents.
6. In case two or more members of the collegium dissent the CJI should not continue with the recommendation of such person to the president.
7. In case of non-appointment of a candidate recommended, the materials and information so conveyed by the Government of India for the same must be placed before the collegium, original or reconstituted. Further, it is upon the collegium, to decide whether the recommendation should be withdrawn or reiterated. Reiteration is possible only when it is decided unanimously by the collegium.
8. It is upon the discretion of the CJI to bring to the knowledge of the person recommended, the reasons for non-appointment, which have been provided by the Government of India. The CJI may also ask for a response from such person, and if made, the response is to be considered by the collegium before withdrawing or reiterating the recommendation.
9. The predominant consideration while recommendation should be merit. However, the inter-seniority of the Judges in their High Courts and their combined seniority on an All-India basis should also be given weight.
10. Cogent and good reasons should be recorded for recommending a person of outstanding merit regardless of his lower seniority.
11. While recommending one of many persons almost an equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered by the collegium.
12. The Judges passed over can be reconsidered unless strong reasons had been recorded for non-appointment to an extent that such person is never to be appointed.
13. The recommendations made by the CJI without following the norms and requirements, are not binding on the government.

Significance of the Case
Through this, the working of the collegium system was further refined and polished further. This case dealt with all the questions related to the working and administration of the collegium system. As a result of this, there was an increase in the number of judges in the collegium, who were to be consulted by the President for the appointment of judges. The collegium, resultantly, came to be constituted of the Chief Justice of India and four other senior-most judges of the Supreme Court.

It was also held that the presence of the Chief Justice in the collegium does not mean that only his advice will be taken into consideration but that everyone in the collegium will be consulted by the President equally i.e., plurality of opinions in the consultation process was seen to be a necessary part of the collegium system in order to ensure that it was not merely the individual opinion of the CJI.

Supreme Court Advocates-on-Record Association v Union of India (2015)[6]

This case is also known as the 'Fourth Judges Case'. It became significant after a judgement on the National Judicial Appointments Commission (NJAC). The NJAC was established by the National Judicial Appointments Act of 2014, which was held to be unconstitutional and thus, void by the Supreme Court.

This Commission was formed to recommend the names of candidates for the appointment of judges in the Supreme Court and the High Courts within the collegium system. The five-judge bench, in this case, held the commission unconstitutional, stating that lack of proper parliamentary procedure while enacting the 99th Constitutional Amendment Act, 2015, which established the commission.

The Court also held the Amendment Act unconstitutional. The majority opinion held that it affected the independence of the judiciary as the commission was established by the legislature and so the appointment procedure of the judges would not be transparent.

The National Judicial Appointments Commission
The commission was constituted in order to help the President with the appointment and transfers of judges in the Supreme Court and High Courts. The constitution of the commission was envisioned to be as follows:

1. The Chief Justice of India to serve as the chairman of the commission.
2. Two senior-most judges from the Supreme Court.
3. The Union Minister of Law and Justice.
4. The other members to be two eminent persons who were selected by a committee consisting of the Prime Minister, the Chief Justice of India, and the leader of the opposition party as members.

Significance of the Judgment
The constitutional bench of the Apex court declared the NJAC to be unconstitutional for violating the basic structure of the constitution. The amendments so brought as a result, thus were set aside. The judgement held that the primacy of the judiciary in the process of appointments cannot be compromised. Further, the composition which once again increased the role of the executive, and reduced the representation of judiciary, stood to affect the independence of the judiciary.

The Present System of Appointments
Through the Judges Transfer Cases, presently remains in place the collegium system for appointments and transfers of judges in the higher judiciary. The collegium presently is constituted as follows:

1. In case of appointment of judges in the Supreme Court: The CJI along with the four senior most judges
2. In case of appointments in the High Court, the CJI along with the two senior most judges

Appointment of the Chief Justice of India and other Supreme Court Judges
The Chief Justice of India is appointment by the President under Article 126 of the Constitution. The recommendation for the appointment of the next CJI is generally made by the outgoing CJI and a practice of appointing the CJI on the basis of seniority has been generally followed.

For appointing any person as a judge in the Supreme Court, the CJI initiates the procedure for recommendation. The CJI in consultation with the collegium provides recommendations for the post and these are conveyed to the Union Law Minister which is then conveyed to the Prime and Minister and the President for advisement. In the collegium so formed, the opinion of the succeeding CJI must also be obtained, if such person is not one of the four senior most judges. Further, the opinions of those senior most judges must be obtained who hail from the same high courts as the recommended persons.

For Appointment of the Chief Justice of High Courts
The appointment of the Chief Justice of a High Court follows the policy of having Chief Justices from outside the respective States. The Collegium takes the call on such elevation. High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most judges of the concerned court. The recommendation is then sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Advantages of the Collegium System
The collegium system ensures independence of judiciary. By reducing the role of executive in the process of appointment and placing primacy with the Judiciary, the system ensures that the influence of politics and legislature is kept at bay. This allows the judges to work without the pressure and influence of any other material and give judgements based on relevant and material facts.

It must also be seen that the Collegium consists of the judges of the Supreme Court itself and also consults the judges of the High Courts as and when required. Since these members are appointed as judges themselves, they have a better grasp at judging the suitability of a person for the concerned post.

Issues present in the Present System
The present system was evolved by means of judicial pronouncements, with the aim of maintaining the independence of judiciary in India. However, over the course of time this system has also developed its own set of issues, the biggest of which has been the lack of democratic processes in the appointment of judges. The issues in the present system are dealt with in detail in following points:

A system of Secrecy
While the system lays down that judiciary enjoys primacy in the process of appointments and it is not simply the CJI whose opinion is being considered, but that of a whole collegium, the actual process of recommendations still remains, to the larger extent, a process completed in secrecy. There are no guidelines per say, to determine the 'suitability' of a person for being recommended. Further the process remains a 'close door mechanism', with its proceeding closed to the public, with no clarity as to how the collegium takes its decision. There are no minutes of the meetings provided, there is no official secretariat present during the meeting, which keeps the entire process of the collegium a secret. Scope for Favoritism and Nepotism

There are no fixed criteria for testing a candidate for the concerned post. The decision is left more or less on the collegium with no guidelines for the proceedings. Such a system thus allows a great scope for the collegium members to practice favoritism and nepotism. This also leads to the building of an ambiguous and non-transparent process.

Lack of Checks and Balances
The reduced role of the executive from the collegium system might act as a safeguard for the independence of the judiciary, but it also strikes a blow to the system of checks and balances that is ideally supposed to be created between the three organs.

Moreover, the system holds no means of placing accountability. The decisions of the collegium are not under the executive or public scrutiny till much later, which means any decision of the collegium cannot be questioned from the get-go and reduces the changes of the administrative body from being held accountable for its decisions.

The problem of Representation
The system of collegium, as ideally imagined by Jt. Bhagwati was to create a credible body of people with broad representation, so as to make recommendations of such nature that would allow justice to be served better. However, the collegium system so incorporated did not keep this view in mind and created a narrow body of individuals only from the higher and superior judiciary. In practicality, such a body does not provide adequate representation to women, or members of other communities, like the transgender community. Such unusual representation, while not new in the system of judiciary, goes a long way to affect the inclusion of both persons of other genders and communities and their issues.

Independence of the Judiciary in its relation to Constitutional Democracy
Constitutional Democracy in Other Organs of the Government
The major significance of the four judges transfer cases was the establishment of the collegium system. The entire of point of contention, and the reasoning behind the establishment of the system boiled down to the independence of the judiciary. The collegium reduced the influence of the executive in the process of appointments and transfers.

The appointment of judges in a system which kept at bay, political and other influences, allowed the judges to freely perform their functions without feeling that their growth was dependent upon another. The freedom and independence of the judges would thus allow them to make truly fair and equal decisions, free of all sorts of political, and executive influences.

However, this independence of the judiciary has been maintained at the expense of transparency and democracy. A democracy vests its power in its people, which forms the rule of the people. In a system of constitutional democracy, the vesting of such power, the derivation of rights and privileges of the people flow from the constitution of the nation. The people chose their representatives, and decide their rules, by means of the power vested in them by the constitution.

These representatives are elected directly in the parliament and state legislative assemblies, both of which function as law making bodies. Thus the representatives so elected by the people are directly involved in the law-making process, by means of which the same people will be governed.

Lack of Representation of People in Judicial Appointments
The appointment of judges and their functioning however, it governed and guided purely by the provisions of the constitution and nothing else. The common people are not involved in any stage of appointment of judges, and the judges are not representatives of the people. This means that on one hand, there is little to no scope for dirty politics in the judicial appointments, as has been developed for elections in the nation, the other side remains where the common people and their opinions and concerns are not adequately represented. Furthermore, India as a nation is a constitutional democracy, but in the judiciary, it is not the people's rule that persists.

The system of collegium has brought into existence a system that is inclusive of only the members of the judiciary, keeps the process of appointments of judges limited primarily within the judiciary, govern themselves without any accountability to the people, while the other two organs and their process remain completely open to scrutiny of the eyes of the people. The system of judicial appointments has been formed in a way that any and all external sources are kept ay bay and only play a minimal role.

The broader picture that is thus painted, is one that keeps out everyone from its processes and functions. The common people get no say in the whole process where their concerns have no guarantee of being recognized or heard. It remains upon the judges so appointed to take cognizance of matter, or to work towards the greater good of the people, but they are not responsible or answerable to the people if they act otherwise.

Conclusion
The matter boils down to maintaining a balance between ensuring the independence of the judiciary, keeping it free from any political or executive pressures and influences while appointing the judges so as to allow them to exercise their functions properly and in accordance with the law, without owing any consideration to other irrelevant material or facts. Such circumstances, where the judiciary is completely independent and free in its functioning, the judges can truly achieve their purpose and serve just, fair and equitable judgements.

A free and independent judiciary is necessary to uphold the trust of the people in the justice system of India. It is also the judiciary that is entrusted with uphold the democratic principles of the nation, to keep in check the other organs of the government and to hold them responsible where they do wrongs. The judiciary not only interprets the constitution but also guards it, and upholds the basic constitutional values in the nation.

However, this independence is ensured and maintained on a double-edged sword. A system free from all influences, including the very people is seeks to serve justice to, leaves behind a large scope for arbitrariness and ambiguity. Judiciary is that organ that holds the other accountable, keeps a check on their power and balances them out but the judiciary itself cannot be held accountable for its action, in so far as the appointments is concerned. The judiciary is not answerable to the public and thus, systemically excludes the common people from its official processes, leaving a case of lack of proper representation.

The four judges transfer cases had rightly recognized the threat to the judiciary and consequently the democracy if the appointments were left to be a completely executive process. The possibility of these appointments soon turning into a tool for the executive to interfere in the judicial proceedings was very much real. The benches in all these cases had highlighted the importance of maintaining the independence of the judiciary and through it ensuring the continuance of a democracy in the nation.

The judgements, through judicial pronouncements thus sought to create a system which ensured that such independence in maintained, by reducing the role of the executive, and by limiting the processes primarily to the members of the judiciary itself.

In the present times, it can be said, that these judgements essentially were the basis on which the independence of the judiciary continues even today allowing the organ to perform its functions, to quite an extent, it its truest and realest sense. Any compromise on the Independence of Judiciary can have an almost permanent effect upon the nature of democracy in India and thus, it is one of the most basic principles of the constitution, that must in all importance be upheld.

This system however cannot justify its ambiguity and non-transparency in the name of the same independence. There are essential changes needed in the collegium system to make it more transparent, efficient and more importantly, a little reflective of the very democratic principles, that it seeks to protect.

End-Notes:

1. Suggested by PN Bhagwati in SP Gupta v UOI (1981)
2. S.P Gupta v Union of India AIR 1982 SC 149
3. Jt. Bhagwati in SP Gupta v. UOI (1981)
4. Supreme Court Advocates-on-Record Association (1993) 4 SCC 441
5. In re Special Reference 1 of 1998 (1998) 7 SCC 739
6. Supreme Court Advocates-on-Record Association (2015) 6 SCC 408