This article deals with the methods of appointment of judges in the Judiciary. The appointment of judges is an important aspect of judicial independence which requires that in administering justice judges should be free from all sorts of direct or indirect influence of political or non political bodies. The independence for judiciary is very important so that the judges can be impartial and perform their duties effectively and without any sort of fear and favour.

The freedom of judges has a close relationship with judicial appointment as the appointment of Judge by the head of the state is followed in most of the countries of the world. Appointment by the head of the state with the consultation of the Lord Chancellor was essentially the British method which was adopted in the Indian Constitution provided under Article 124 of Indian Constitution states 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 Court 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.

According to this Article, the Judge should be appointed by the President with the consultation of Chief Justice of India and the senior Judges of the Supreme Court. The reason for the consultation with the Chief Justice of India and the Judges of the Supreme Court is that they are well qualified by reason of their long tenure. But in the case Supreme Court Advocates-On-Record Association V. Union of India, popularly known as THREE JUDGES CASE the concept of collegium system was evolved.

This article includes the concept of collegium system, its origin, advantages and the disadvantages, what steps were taken to demolish this system and the solution. In short this paper critically analysis the appointment of the Supreme Court Judges. Openness and transparency in making appointments essentially depend on the mechanisms for appointment of judges.

The mechanisms for judicial appointment plays an important role in selecting the persons having the professional skills and qualities that are required for judges in an independent judiciary. This paper seeks to examine the nature of the mechanisms for judicial appointment which exist around the world. Its main purpose is to analysis how far the existing mechanisms for judicial appointment are effective in maintaining judicial independence and public confidence in the judiciary.

Origin Of The Collegium System:

The word Collegium is nowhere mentioned in the Constitution, it has come in force as per Judicial Pronouncement. The origin of the concept for establishment of the system may be traced by the recommendations of the Bar Council of India made on 17 October 1981, during a national seminar of the lawyers at Ahmedabad. It was recommended that there should be a collegium system for the appointment of the Supreme Court Judges by the following authorities:

1. The Chief Justice of India
2. Five senior Judges of the Supreme Court
3. Two representatives who would be representing the Bar Council of India and the Supreme Court Bar Association.

The recommendation of such a Collegium system should be binding on the President though he can say for reconsideration on certain grounds.

Later on, 30 December 1981, Bhagwati Judge of the Supreme Court focused on the necessity of establishing collegium system in India in the case S.P. Gupta v Union of India. In elaborating on the meaning of the word consultation, Bhagwati J endorsed the views of Krishna Iyer J expressed in Union of India v Sankalchang Himmatlal Sheth that 'We agree with what Krishna Iyer, J. said in Sankalchan Sheth Case that:
consultation is different from consentaneity. They may discuss but may disagree; they confer but may not concur'. This is reminiscent of the views of Dixon CJ of Canada who had said, '[The Prime Minister and the Minister of Justice with whom the final choice on appointment rests] feel free to consult me, I feel free to give views which they are free to take or not to take'.

However, Bhagwati J in the First Judges' Case expressed his dissatisfaction with the existing 'mode of appointment of judges in India in which the authority to select judges has exclusively been vested 'in a single individual' (the President) whose choice 'may be incorrect or inadequate' and 'may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations.'

Therefore, he considered it unwise to entrust power particularly to make crucial and sensitive appointments, such as judicial appointments, to single individual (the President) without putting checks and controls on the exercise of such a power. Accordingly, he suggested that:
there must be a Collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests.

If the Collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential- it would go a long way towards securing the right kind of Judges, who would be truly independent.

Establishment Of Collegium System With Judicial Pronouncement:

The Collegium of judges, as proposed by Bhagwati J, could only be established in India through the passing of an amendment to the provisions of Articles 124(2) and 217(1) of the Constitution. But in 1993, a majority of Nine-Judge Constitutional Bench of the Supreme Court in the Second Judges' Case and in 1998, the unanimous opinion of the nine- Judge Constitutional Bench of the Supreme Court in the Third Judges' Case did accomplish the task of setting up of the collegium of judges.

The composition of the collegiums as contemplated by Bhagwati J in the First Judges' Case that it 'should be more broad- based and there should be consultation with wider interests' was completely ignored; the membership of the Collegium was kept narrow-based (i.e. confined only to the judges of the superior courts).

The Second Judges’ Case, 1993

In the Second Judge case, J. S. Verma overruled the majority view in the First Judges Case, giving primacy to President in the matter of appointment of Judges to superior courts. Verma J held that the opinion given by the CJI in the consultative process had to be formed taking into account the views of the two senior most judges of the Supreme Court. This would ensure that the opinion of the Chief Justice of India was not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

He also contended that:
the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of 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 great weight should be given to the opinion of CJI and senior most Judges of Supreme Court. The primacy should be given to CJI in the matters accordance with the appointment of Judges of Supreme Court. He further elaborated the situations when non-appointment was permitted and justified.

For example:
if the final opinion of the Chief Justice of India was contrary to the opinion of the senior judges consulted by the Chief Justice of India and the senior judges were of the view that the recommended was unsuitable for stated reasons, which were accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. Similarly, when the recommendation was for appointment to a High Court, and the opinion of the Chief Justice of the High Court conflicted with that of the Chief Justice of India, the non-appointment, for valid reasons to be recorded and communicated to the Chief Justice of India, would be permissible.

Thus, the President's role as the appointing authority is reduced to the minimum. The word 'consultation,' used in Articles 124(2) and 217(1) of the Constitution, tends to be interpreted as 'concurrence' observing that concurrence of the Chief Justice of India, who was best equipped to assess the true worth of the candidates for adjudging their suitability, was needed for any higher judicial appointment except certain cases for strong cogent reasons disclosed to the Chief Justice by the executive and in the absence of consensus, his opinion, formed collectively after taking into account the views of senior colleagues, would hold primacy. This procedure devised by Justice Verma for the appointment of judges of superior courts in India was, according to him, the best method, in the 'constitutional scheme'.

Third Judge’ Case

In Third Judges Case, the Nine-Judge Bench opined the following points with reference to the appointment of judge:

1. The opinion of the CJI, having primacy in the consultative process and reflecting the opinion of the judiciary, has to be formed 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. Their views should be obtained in writing
2. Views of the senior most Judges of the Supreme Court, who hail from the High Courts where the persons to be recommended are functioning as Judges, if not the part of the collegium, must be obtained in writing.
3. The recommendation of the collegium alongwith the views of its members and that of the senior most Judges of the Supreme Court who hail from High Courts where the persons to be recommended are functioning as Judges should be conveyed by the Chief Justice of India to the Govt. of India.
4. The substance of the views of the others consulted by the Chief Justice of India or on his behalf, particularly those of non-Judges should be stated in the memorandum and be conveyed to the Govt. of India.
5. Normally, the collegium system should make its recommendation on the basis of consensus but in case of difference of opinion no one would be appointed, if the CJI dissents.
6. If two or more members of the collegium dissent, CJI should not persist with the recommendation.
7. In case of non-appointment of the person recommended, the materials and information conveyed by the Govt. of India, must be placed before the original collegium or the reconstituted one, if so, to consider whether the recommendation should be withdrawn or reiterated. It is only if it unanimously reiterated that the appointment must be made.
8. The CJI may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Govt. of India for his non-appointment and ask for his response thereto, which, if made, be considered by the collegium before withdrawing or retirating the recommendations.
9. Merit should be predominant consideration though inter-seniority among the Judges in their High Courts and their combined seniority on all India basis should be given weight.
10. Cogent and good reasons should be recorded for recommending a person of outstanding merit regardless of his lower seniority.
11. For recommending one of several persons of more or less equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered.
12. The Judges passed over can be reconsidered unless for strong reasons, it is recorded that he be never appointed.
13. The recommendations made by the CJI without complying with the norms and requirements, are not binding on the Govt. of India.
     

According to Bharucha J, the principal objective of consultation with a plurality of judges, terming it as a Collegium of judges, by the Chief Justice of India, in the formation of his opinion for recommending candidates for appointment to the Supreme Court, was to ensure that the best available talent is brought to the Supreme Court Bench. For, the Chief Justice of India and the senior most Judges, by reason of their long tenures on the Supreme Court, were best fitted to achieve this objective.

Therefore, S. P. Bharucha J expressed his opinion to the effect that 'it is desirable that the Collegium should consist of the Chief Justice of India and the four senior most Judges of the Supreme Court.' Thus the number of senior-most judges of the Supreme Court as the member of the Collegium was increased from two to four.

Distinct View Given By The Judges

Justice J Chelameshwar opposed the collegium system stating that, the need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history barring occasional leaks. The process of appointment was wholly illogical & inconsistent with the foundations of theory of democracy & a doctrinal hearsay.

Supreme Court Latest Opinion On Collegium System:

Needless to say, in the meanwhile, the process of appointment of judges through the collegium system will continue and shall not be put on hold.

The court said that the existing collegium system needed to be improved and sought suggestions from senior lawyers, lawyer’s organization and the general public.

The following were the suggestion provided in the meeting:

1. It must be made compulsory to have a certain number of women judge in courts and that will go a long way in ensuring sensitivity.
2. The MOP should be based on four criteria – transparency, eligibility criteria for judicial appointments, a permanent secretariat to assist the collegium and a mechanism for complaints against candidates.
3. Court should either leave the MOP entirely to the govt., or direct the govt. to frame it.

Steps Taken By The Govt

It is ironic that Verma J, the author of the leading judgment in the Second Judges' Case, which gave a tentative shape to the Collegium system of appointment of judges in 1993, after a passage of time found faults in the working of the system and went to the extent of saying that: 'judicial appointments have become judicial disappointments,' and that 'working of the judgment now for some time is raising serious questions, which cannot be called unreasonable; therefore some kind of rethinking is necessary.'

Thus, Verma J felt the necessity of introducing an improvement in the Collegium system but stopped short of suggesting replacement of the mechanism. The existing political dissatisfaction with the present system of appointment would be evident from the facts that most of the political parties and groups, including the National Democratic Alliance, the Congress (I), and the left parties had promised in 1999 Lok Sabha election manifestos to establish a National Judicial Commission in place of the Collegium.

After ten years of the establishment of the Collegium system in 2003, the Government of the National Democratic Alliance made an attempt to replace the system of the Collegium with a National Judicial Commission (consisting of three ex-officio judicial members and two executive appointees) through the presentation of the Constitution (Ninety-Eighth Amendment) Bill before the Lok Sabha - the Lower House of the Parliament.

The Bill, which was before a Standing Committee, lapsed because of the dissolution of the Lok Sabha. Later in its Report of 2007, the Parliamentary Standing Committee on Law and Justice stated that after the 1993 judgment in the Second Judges' Case, the role of the executive in the appointment of judges has almost been abolished and, as such, recommended that both executive and judiciary should be involved in the process of appointment, with the executive having primacy.

It also suggested that the empowered committee and the National Judicial Council could make the final recommendation instead of the Collegium. The Government accepted the Parliamentary Standing Committee's recommendation to do away with the Collegium of judges.

However, in order to ensure greater transparency and role of the executive in the appointment of judges of the Supreme Court and the 21 High Courts, the Union Law Ministry drafted a constitution amendment bill to replace the existing Collegium system with a two-tier system of National Judicial Commission- one for the appointment of judges to the Supreme Court and another for appointment of judges to the High Courts.

But in July 2012, the Law Ministry introduced changes in the Bill to replace the proposed two-tier National Judicial Commission system with a single-tier. At the same time, a new provision has been incorporated into the Bill providing for the attendance of the relevant Chief Minister in the meeting of the Commission if his input is considered necessary for the appointment of High Court judges.

This provision is aimed at doing away with the time consuming practice of seeking the Chief Minister's opinion regarding the appointment of High Court judges in file. Although the government has been drafting and redrafting the Bill for nearly two years, it does not have the requisite majority in the Parliament to get the Bill passed without the support of the opposition party, the BJP, which has, in the meantime, expressed its reluctance to support the Bill.

The Central Govt. has criticized the collegium system by stating that it has created an imperium in imperio that means empire within an empire i.e. within the Supreme Court. This has given the Supreme Court immense power and that can lead to the misuse of the power and that will harm the regulation of the Judiciary.

To make the judiciary more transparent, the Govt. brought 99th Amendment in 2014 and the National Judicial Appointment Commission Act, 2014. However, both the Amendment and the Act were challenged in the Supreme Court. Supreme Court declared both unconstitutional as well as void.

NJAC is a committee that consist of six people- CJI, 2 Senior Judges of Supreme Court, law Minister and two eminent persons. Eminent person is to nominated for 3 years’ term by committee consisting of Chief Justice, Prime Minister and leader of opposition in Lok Sabha and they are not eligible for re- nomination. In NJAC, members have veto power. If two members veto a nomination or decision, the matter of appointment is dropped. But the act and amendment was declared as void by the Supreme Court.

Advantages And Disadvantages Of Collegium System:

Advantages:

1. The collegium system increases secrecy. Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaquer.
    
2. The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt.’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
    
3. There are many cases in which the judges of the Supreme Court were transferred because of the political influences. So the power given to executive organ for transferring the judges would lead to decrease the independence of judiciary as well as it will stop the judiciary organ to work effectively. For fair functioning collegium system would be best as it ensures the independence and allows the judge to perform their duty without any fear or without any interference and influence.
    
4. 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.

Disadvantages:

1. This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism. Because of which the deserving candidates are unable to appointed as the Judge.
    
2. The collegium system does not have any criteria for testing the candidate as well as they don’t investigate any background of the candidates and they are not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
    
3. Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
    
4. The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ. As Judiciary is dependent on the executive for the appointment of the Judges with the consultation of CJI and the senior most Judges of SC; but this system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
    
5. This system leads to non transparency of the judicial system, which is very harmful for the regulation of law and order in the country.

Rule Of Law Convention, 2018 On Collegium

The Bar Association of India held the Rule Of Law Convention 2018 on Judicial Reform between 9 and 11 February, 2018; saw a participation of nearly 200 delegates from 21 states representing Bar Councils and High Court and District Bar Associations.

The Conference was addressed by Mr. Vikas Singh, President, Supreme Court Bar Association.

A number of critical topics including Acute Shortage OfJudges, Appointment, Transfer and Posting of Judges in Higher Judiciary, How to ensure speedy justice, Relook on Collegium System, Substantial non-utilization of funds for judiciary and transparency in the Higher Judiciary were discussed.

The main proposition was that whether the Collegium system of appointments should function as it was rejected completely and unanimously. The proposition as to whether Collegium system should be abolished and the Executive should be allowed to play a role in selection of judges was also rejected only 14 votes in favour and lastly whether the Collegium system of appointment be continued with significant reforms and changes to bring in transparency and evolving mechanisms to ensure the best talent is appointed to court was carried.

Some suggestions were discussed that are mentioned below:

1. Judicial appointments should not get delayed or postponed due to non- finalization of the Judges. The filling of judicial vacancies is the duty of every organ of state.
    
2. It was noted that checking of background while appointing is flawed and such ground checks are purposely leaked in public domain to create doubts about integrity of candidates. Also, the machinery to carry out background checks is not misused must be assured.
    
3. A well resourced independent secretariat for judicial appointments and a data base of eligible candidate be created. So that vacancies are known in advance for faster judicial remedy.
    
4. Both the Judiciary and the Executive should work together in a spirit of collaboration to ensure speedy filling up of vacancies by keeping supreme the national and public interest in mind.

Additional Solitor General, Pinky Anand Stated That:
the paradox we are facing today is that problem resolvers are the problem makers. Further she added that sum and substance of views taken by such committees is that power of appointment of judges should be vested either with the govt. or with an independent judicial body.

She further pointed out that we had the 99th Constitutional Amendment, approved and ratified by both the Houses, a rare feature, almost universally ratified by all parties across the board, and yet it was struck down by the Supreme Court.

She concluded by saying that, what do we look for in a system? We look for Constitutional validity and even if does not meet the test of constitutionality, it may still pass the test if it delivers the goods. The collegium system fails on both parameters. That is why we are here today to try and bolster our institutions.

We need to ensure that institutional creditability is upheld by whatever means it takes even if it needs a perestroika to overturn this entire position as it stands today which has proved to be a disaster.

Comparison With Alternative Option Of Appointment Of Judges

1. In Canada:

   The power to appoint the judges resides with the federal Govt. the federal Minister of Justice. The Federal Minister of Justice appointed special advisers to gather the information about the potential and the deserving judges and then the list is transferred to the Canadian Bar Association National Committee who check the background of the candidates before pronouncing the candidates qualified or not qualified for judicial office. The final selection is laid before the Cabinet for approval and forwarding to the Governor General, in whose name the appointment is made.
    

2. In Germany:

   The appointment of the Judges is made through the process of the election. Half the members of the Federal Constitutional Court are elected by the executive and half by the legislative.
    

3. In USA:

   The appointments are made by the President. Judges of the Supreme Court are nominated by the President and confirmed by the United States Senate.
    

4. In Uk

   The SC Judges are appointed by a five peoples’ selection commission. That committee consists of SC President, his deputy and one member each appointed by the JACs which consist of lay person, members of judiciary and the bar; of England, Scotland and Northern Ireland.

Conclusion:
All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system. Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment.

However, to ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons. In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny. In this regard the composition and working system of the South African Judicial Service Commission may be an acceptable model. Such a mechanism may be very effective to ensure the appointment of the best-qualified people to judicial office.

However, the Collegium of judges has not been performing its task of recommending candidates for appointment as judges in the superior courts satisfactorily. No guidelines or criteria are being followed by the Collegium in discharging its functions. Its decisions 'are secrecy, a mystery and enigma'.68 In the words of Iyer, the Collegium 'has been dilatory, arbitrary and smeared by favorites and the 'present collegiate elitism is the vanishing point of democratic values in the justice pyramid.'

Nevertheless, the Government of India made an abortive attempt in 2002 to give a decent burial to the Collegium system of appointment of judges by establishing a National Judicial Commission with a predominance of judicial members. The Constitution (98th Amendment) Bill, placed before the Lower House of the Parliament for the establishment of the Commission, was ultimately lapsed.

The Union Law Ministry has presently (in May 2012) been preparing a draft bill for establishing two Judicial Commissions in India, one for dealing with the appointment of judges of the Supreme Court and another for the appointment of Judges of the High Courts. On the other hand, a writ petition challenging the legality of the establishment of Collegium of judges has been pending before the Supreme Court of India for decision.

Therefore, it can reasonably be expected that, within a short period of time, two judicial commissions would be established in India, in order to ensure that the matter of appointment of judges in the superior courts of India does not result in a politically biased judges who are or feel beholden to the appointing authority.

In this context, the immortal words of former Chief Justice of Australia, Sir Harry Gibbs, are worth-quoting:
Judicial commissions, advisory Committees and procedures for consultation [with the Chief Justice] will be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personalpatronage nor a desire to placate any section of a society, should play any part in making judicial appointments.

Bibliography:
Books Referred:

• The Indian Constitution by Durga Das Basu
• The bare Act of Indian Constitution
  

Websites Referred:

• Hein Online
• Manupatra
• SCC