DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
SELETION OF JUDGES: REQUIRES A CHANGE IN LAW

SUBJECT
LEGAL METHODS

NAME OF THE FACULTY

SOMA BHATTACHARYA

Name of the Candidate

Roll No. & Semester
M. Aruna Sri Satya, 2015067, Semester 1
M. Sireesha, 2015065, Semester 1

TABLE OF CONTENTS
1. INTRODUCTION.4
2. HISTORICAL BACKGROUND AS TO THE PROCESS OF APPOINTMENT OF
JUDGES IN INDIA
2.1 CONSTITUENT ASSEMBLY DEBATES..5
2.2 PAST PROPOSALS FOR REFORMS IN THE PROCESS OF APPOINTMENT OF
JUDGES IN INDIA..6
3. CONSTITUTIONAL PROVISIONS IN THE PROCESS OF APPOINTMENTS OF
JUDGES IN INDIA AND U.S.A
3.1 CONSTITUTIONAL PROVISIONS AND PROCESS OF APPOINTMENT IN INDIA..8
3.2 CONSTITUTIONAL PROVISIONS AND PROCESS OF APPOINTMENT IN U.S.A.9
3.3 THE ROLE OF THE LEGISLATURE IN THE PROCESS OF APPOINTENT OF JUDGES
IN U.S.A..14
4. APPOINTMENT OF JUDGES IN INDIA
4.1 COLLEGIUM SYSTEM16
4.2 NATIONAL JUDICIAL APPOINTMENT COMISSION17
5. COMPARATIVE ANALYSIS IN THE PROCESS OF APPOINTMENT OF JUDGES IN
INDIA AND U.S.A19
CONCLUSIONS20
BIBILIOGRAPHY.21

ACKNOWLEDGEMENT:
I would sincerely like to put forward my heartfelt appreciation to our respected Prof. Soma
Bhattacharya for giving me a golden opportunity to take up this project regarding Selection of
judges: Requires a change in law. I have tried my best to collect information about the project in
various possible ways to depict clear picture about the given project topic.

1. INTRODUCTION
The judiciary serves an important function by preserving the rule of law. To perform their duties
correctly Judges must interpret the law fairly and consistently and remain free from the political
influence. Because of the primacy of having competent and impartial judges the process for
selecting judges is of critical importance.
According to Benjamin N. Cardozo Judges have, of course, the power, though not right, to
ignore the mandate of a statute, and rendered judgment in despite of it. They have the power,
though not the right, to travel beyond the walls of thee intertices, the bounds set to judicial
innovation by precedent and custom. None the less, by abuse of power they violate the law1
In India the appointment of judges has been made through Collegium system. Recently, the
Rajya Sabha has passed the National Judicial Appointments Commission Bill, 2014 that will be a
replacement of this collegiums system.
OBJECTIVES/AIMS OF THE STUDY
The main aim of this project is to know the change that should be made in the process of
selection of judges. The researcher will be discussing the following cases which are related to
selection of judges.
1. S.P. Gupta v. union of India -1981
2. Supreme court advocates-on record association vs. union of India -1993
SIGNIFICANCE & BENEFIT OF THE STUDY
This study helps us to know the changes that came and will come in the selection of judges in
law. This study benefits students, teachers and layman to know about the selection of judges
SCOPE OF THE STUDY
The scope of this study is limited to the NJAC vs. Collegium system. Why Collegium system
end and njac comes into existence. Compare to the other countries judges selection process.
1 Benjamin N.Cardozo, the Nature of the Judicial Process, Yale University Press, 1921, pp. 129 and 135,
16/9/2015, 6:30pm.
4

RESEARCH METHODOLOGY
The process used to collect information and data for the purpose of making decisions. The
methodology may include publication research, surveys and other research techniques, and could
include both present and historical information. In this project the researcher is using doctrinal
type methodology.
RESEARCH QUESTIONS
1. What is the best method of selecting judges? Should the method differ at different court
levels?
2. How the selection process of judges can be improved?
3. What is the determination for selection of judges and their qualifications?
HYPOTHESIS
The selection of judges in India used to follow collegiums system but now the selection of judges
is done through NJAC in this project researcher wants to prove that selection of judges through
NJAC is better than selection of judges through collegiums system.
LITERATURE REVIEW: The researcher will study the following books
The cultural implications of judicial selection-Yaxta Maya Murray
Judicial selection in the states a critical study with proposal for reforms-Patrick Winston Dunn
And also some of the web sources - Collegium system end: NJAC is in, judges lose say in hiring
(http://indianexpress.com/article/india/india-others/end-of-collegium-system-govt-notifies-newlaw-on-judges-appointment/)
2. HISTORICAL BACKGROUND AS TO THE PROCESS OF APPOINTMENT OF
JUDGES
2.1 CONSTITUENT ASSEMBLY DEBATES

In the constituent assembly debates on appointment of judges three main proposals came up for
consideration. The first one was the president should make the appointments with the agreement
of the Chief justice of India. The second one was that the appointment should be made on the
basis of confirmation by 2/3rd vote by the parliament and the third one was that the appointment
should be made on consultation with Council of states. Dr. Ambedkar strongly disagreed to the
involvement of legislature in the appointment of judges on the grounds that it would be
burdensome and it would lead to political pressure. On the question of appointment of judges
with the agreement of CJI, He said to allow CJI practically a veto upon the appointment of
judges really to transfer the authority to the chief justice, which we are not prepared to vest in the
president or the government of the day. The decision was finally taken under article 124(2) that
the president will appoint the judges after consultation with the judges of Supreme Court and of
the high courts when president thinks it is necessary for the purpose. This procedure worked
satisfactorily till 1993 when Supreme Court interpreted the words after consultation to mean
with the concurrence of the court and the government at that time have chosen not to seek a
review of this decision by a larger bench. After this interpretation the role of the executive at the
central and state levels was not at all productive and the decision on the appointment of judges
today rests with the judges themselves.2
2.2 PAST PROPOSALS FOR REFORMS IN INDIA
RECOMMENDATIONS OF SAPRU COMMITTEE:
In the year 1945, the Sapru committee recommended that the appointment of judges to Supreme
Court and high courts should be made by the head of the state in consultation of the Chief Justice
of Supreme Court and in the case of appointment of judges to the high courts the chief justice of
the high court and the head of the unit concerned should also be consulted additionally.
RECOMMENDATIONS OF THE HIGH POWERED COMMITTEE APPOINTED BY
THE CONSTITUENT ASSEMBLY:
The constituent assembly appointed high powered special committee for recommending best
method of selecting judges for the Supreme Court. The committee consisted of outstanding
2 http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm, 16/9/2015,7:00pm
6

jurists of the country. The committee submitted a unanimous report that it would not be worthy
to leave the power of appointing judges of the Supreme Court with the president alone. It
recommended two alternative methods.
a) The president should consult the Chief justice of the Supreme Court. He should nominate a
person whom he considers to be fit as a judge of the Supreme Court and the nomination should
be confirmed by a majority of at least seven out of a eleven members panel.
b) The eleven members panel should recommended three names. Out of these three names the
president in consultation with the Chief Justice may select a person as judge of the Supreme
Court. The same procedure should be fallowed for the appointment of chief justice of the
Supreme Court. Of course in this case there should be no consultation with the chief justice3.
RECOMMENDATIONS OF FEDERAL COURT
The draft constitution was forwarded to the federal court for its views. A conference of judges of
federal courts and chief justice of high courts was held in March, 1948 to consider the proposals
in the draft constitution concerning the judiciary. The conference submitted a memorandum in
which they recommended that the appointment of the judges of the high court should be made by
the president on the recommendation of the chief justice of the high court after consultation with
the governor of the state and with the concurrence of the chief justice of India.
MAJORITY VIEW IN S.P. GUPTAS CASE:
In S.P. Guptas case4 Justice Bhagwati did not accept the concept of the primacy of the Chief
Justice of India. He opined that proposal for appointment can emanate either from Chief Justice
of India or from any of the other three constitutional functionaries and that it was open to the
Central Government to override the opinion of Chief Justice of India or the other two
constitutional functionaries. He said that opinion of all the three functionaries to be consulted
stands on equal footing. He added quite significantly that if the opinion of Chief Justice of India
and Chief Justice of the High Court is unanimous the Government should ordinarily accept it. In
3 B.Shiva Rao: The Framing of Indias Constitution. Vol.2 at p. 590, 16/9/015, 7: 30pm.
4 AIR 1982 SC 149, 17/9/2015, 5:00pm.
7

the course of his opinion the learned Judge also referred to the desirability of a Collegium to
make recommendation to the President in regard to appointment of Supreme Court and High
Court Judges. He thought that such a Collegium should be broad-based and should make the
recommendation in consultation with wider interests. He referred to the fact that in countries like
Australia and New Zealand the idea of a Judicial Commission has been gaining ground.
3.1 Constitutional Provisions and process of appointment of judges in India
Appointment of Judges to the Supreme Court
According to Article 124(2) every Judge of the Supreme Court shall be appointed by the
President after consultation with Judges of the Supreme Court and judges of the High Courts as
the President thinks it necessary for the purpose. In case of appointment of a Judge other than the
Chief Justice, the Chief Justice of India shall always be consulted. Under our constitutional
scheme the President is the constitutional head. In exercise of his powers given by the
Constitution he acts upon the aid and advice of Union Council of Ministers. So far as the
executive power of the Union is concerned it is exercised by the Union Council of Ministers in
the name of the President. Article 124(2) speaks of consultation whether it is the Chief Justice of
India, Judges of the Supreme Court or the Judges of the High Court. The expression is not
agreement. The Constituent Assembly debates show that when it was suggested by some of the
members that the expression should be agreement and not consultation it was not agreed.
Similarly, the suggestion to provide for approval of Parliament or its upper House probably
inspired by the U.S. Constitution was also not agreed by Dr. Ambedkar.5
Appointment of Judges to High Courts
The procedure for appointment of Judges of the High Courts is slightly different from the
appointment of Judges of the Supreme Court. Article 217(1) says that every judge of a High
Court shall be appointed by the President 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 of
High Court he must be consulted, 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
5 AIR 1982 SC 149, 17/9/2015, 6:00pm
8

attains the age of sixty-two years. A reading of this clause shows that while the appointment is
made by the President it has to be made after consultation with three authorities namely the Chief
Justice of India, the Governor of the State and the Chief Justice of the High Court. Just as the
President is the constitutional head so are the Governors. However, according to the practice
which had developed over the last several decades and which was in vogue till the
aforementioned 1981 decision of the Supreme Court. The Chief Justice of the High Court used to
make the recommendation which was considered by the Governor of the State who offered his
comments for or against the recommendation. The matter then went to the Central Government.
At that stage the opinion of the Chief Justice was sought and based upon such advice the
appointment was either made or declined.6
Practice followed till 1981:
A practice had developed over the last several decades according to which the Chief Justice of
India initiated the proposal very often in consultation with his senior colleagues and his
recommendation was considered by the President and if agreed to the appointment was made. By
and large this was the position till 1981.
3.2 Constitutional Provisions and Process of Appointment in U.S.A
Methods of Appointment
Section 2, Article II of the United States Constitution states that the President shall nominate the
candidate by the advice of the senate. He also takes the consent of the senate, Judges of the
Supreme Court and all other Officers of the United State. Justices of the Supreme Court judges
of the Circuit Courts of Appeals and the District Courts that is included under all other officers of
the U.S. It is referred in the Constitution that all judges are appointed by the President of the
United States with the advice and consent of the Senate. These justices and judges are appointed
for life and they can only be removed through impeachment by the Congress. There is no
statutory qualification for judicial appointment to the Supreme Court or the lower federal courts.7
6 http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm, 17/9/2015, 6:15pm.
7 http://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf, 17/9/2015, 7:00pm
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Process of Appointment of Judges of the Federal Courts:

Vacancy:
The process of appointment of a federal judge starts from the occurrence of a judicial vacancy.
The vacancy of a judgeship may arise from death, resignation, and retirement of a judge. Also
vacancies can arise from legislation creating new judicial position and impeachment by the
Congress.
Selection and Nomination of Candidates by the President:
The President nominates candidates for justices and judges to the Senate after he receives
recommendations from the Department of Justice and his own White House staff.8
Department of Justice:
The Department of Justice which is supervised and directed by the Attorney General is
responsible for making recommendations to the President concerning appointments to federal
judicial positions. Within the Department the Office of Policy Development (OPD) has primary
responsibility for the judicial selection process of all Article III judicial vacancies. They ask
federal and state judges, prosecutors, and defenders as well as other attorneys and support staff
about the candidates reputation and merit for the federal bench. They also examine any articles
written by or about the candidate and review all of the cases, news, writings, and web sites
mentioning the candidate as well as financial disclosure statements and a physicians evaluation
of the candidates health. A questionnaire is sent to the potential candidate to collect his or her
personal data. The OPD does not solicit the candidates personal views on constitutional
interpretation or political issues. Instead the candidate is asked whether he or she has any views
that would prevent the candidate from following the precedents of the higher courts or from
being fair and impartial in all cases that might come before the court. If the preliminary
evaluation of a prospective nominee is positive the candidates name will be transmitted to the
Federal Bureau of Investigation for investigation and to the American Bar Association (ABA) an
independent non-governmental organization for evaluation.
8 http://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf, 17/9/2015, 8:00pm

10

Federal Bureau of Investigation:

The Federal Bureau of Investigations (FBI) investigation of potential judicial nominees is
focused on general background issues. FBI agents usually begin their investigation by
interviewing the judicial candidate to confirm the accuracy of the candidates security
questionnaire which requires information to verify education, jobs, and residences, as well as any
background issues since the candidates eighteenth birthday. FBI agents also interview federal
and state judges and other government officials, as well as attorneys, business and civic leaders,
religious and civil rights leaders, neighbors, and doctors. They also check for arrests and
convictions, civil lawsuits, and credit history. Additionally a check on the candidates tax record
is included in the file. The OPD has stated that the FBI investigation is a critical component of
OPDs evaluation of the candidates suitability for the federal bench.9
The American Bar Association:
The American Bar Association interviews judges and lawyers in the candidates community
about the candidates qualifications including temperament and also interviews the candidate. At
the end of the ABA process, the ABA sends an informal piece of advice to the Department of
Justice on its rating of the candidate as well qualified, qualified, or not qualified if the President
were to nominate the candidate. If the ABA rating is positive, the FBI report is satisfactory, and
the Department of Justices evaluation is favorable overall the Attorney General formally
recommends the nomination to the President.
The White House
The White House Counsels Office works closely with the Department of Justice in the selection
of potential federal judges. Also the Office works as closely as possible with Senators and also
considers recommendations by Members of the House of Representatives, state Governors, state
judicial selection panels, bar associations, government officials and citizens.
9 http://www.legco.gov.hk/yr00-01/english/library/erp01.pdf, 18/9/2015,5:30pm
11

President
The papers sent by the Department of Justice to the President include:
1. A letter from the Attorney General to the President formally recommending the nomination
2. A memorandum from the Deputy Attorney General to a designated White House Assistant
touching on matters not in the Attorney General's formal letter
3. The candidates resume or biographical sketch
4. A summary of the FBI Report along with the complete report itself and
5. All other file material on the candidate including the response to the personal data
questionnaire.
If the President approves the nomination, he signs it and sends it to the Senate. Following the
nomination the Department of Justice submits the FBI Questionnaire, the results of the FBI
background investigation and the entire Senate Questionnaire to the Senate.10
Confirmation by the Senate
The Senate acts in a unicameral capacity when it confirms federal judicial nominations. As the
Constitution provides only the Senates Advice and Consent are necessary for the appointments of
Judges of the Supreme Court and all other Officers of the United States. The House of
Representatives is not involved in the process of appointment of federal judges. Within the
Senate the consideration of appointments to judicial positions is the responsibility of the
Committee on the Judiciary.
The Committee on the Judiciary
The Senate Committee on the Judiciary or the Judiciary Committee consists of 18 members.
Following the rule that majority party in the Senate controls a majority of committee seats voting

10 https://www.law.cornell.edu/constitution/articleii, 18/9/2015, 6:30pm

12

results on the Committee are generally representative of the voting preference in the full
Senate.11

Investigation
The Senate Judiciary Committee has its own staffers to examine the background of a judicial
nominee. The bulk of the investigation is conducted by the staff of the Chairman and the
minority party leader on the Committee. The investigation involves reviewing the FBI
Questionnaire the results of the FBI background investigation and the entire Senate
Questionnaire. The Committee staffers ask the home state Senators of the nominee for their
opinion and conduct phone interview with the nominee to clear up any ambiguity encountered in
the file. Any information discovered by the staffers will be reported to the Committee members.
Confirmation Hearing
When the nomination is referred by the Senate the Judiciary Committee is authorized to hold
confirmation hearing and to take testimony by requiring by subpoena the attendance of witnesses
and the production of correspondence, books, paper, and documents. The confirmation hearings
conducted by the Committee are open to the public and may be broadcast by radio or television.
The confirmation hearing of a Supreme Court Justice nominee starts by the Senate Judiciary
Committee Chairmans opening statement which is followed by endorsement of the nominee by
prominent supporters normally home state Senators. The nominee is invited to give an opening
statement. Then the hearing will proceed to the questioning time of the nominee by the Senators.
After the nominee has given his testimony other witnesses may follow and lend their support for
or opposition to the nomination.12
Voting
11 https://www.fas.org/sgp/crs/misc/R43762.pdf, 19/9/2015,4:00pm
12https://www.fas.org/sgp/crs/misc/R43762.pdf, 19/9/2015,5:00pm

13

After the confirmation hearing Committee members will vote on the nomination. The quorum of
the Judiciary Committee is ten while vote by proxy is allowed proxies are not counted for
making a quorum. If a nomination gets a majority votes it will go to the Full Senate. If the
Committee rejects a nomination with a majority vote the nomination will be returned to the
President. In effect the nomination dies. However after rejecting a nominee the Committee may
if it chooses vote to report the nomination to the floor but it will be with an unfavorable
recommendation. When the Committee adjourns at the end of a session all of the nominations
still pending in Committee stage will be returned to the President.13
Full Senate
All judicial nominations reported from the Senate Judiciary Committee are considered by the
Senate in executive sessions. If a nominee is non-controversial quite often the nomination will be
passed by unanimous consent and no floor debate is necessary. Confirmation of a nomination
requires a majority vote of the Senate. If a nominee is controversial there may be floor debate on
the nomination. Historically nominees who received an unfavorable recommendation by the
Senate Judiciary Committee have never been voted favourably by the Full Senate. The President
is from time to time furnished with an authenticated transcript of the public executive records of
the Senate with a list of all judicial appointments confirmations and rejections.14
Appointment by the President
When the Senate gives its advice and consent, the President signs the judicial commission which
officially appoints the individual. Historically six judicial nominees declined the appointments
despite the Senates confirmation and the President's appointment and the last declination
happened in 1882.
Recess Appointment
Under the US Constitution, Article II, Section 2, Clause 3, the President shall have Power to fill
up all Vacancies that may happen during the Recess of the Senate by granting Commissions
13 https://www.fas.org/sgp/crs/misc/R43762.pdf, 19/9/2015,6:00pm
14 http://fpc.state.gov/documents/organization/50146.pdf, 19/9/2015,7:30pm
14

which shall expire at the End of their next Session. When the Senate is not in session and
therefore unable to receive nominations, the President may make recess appointments. The
Senate will then consider the nomination when it returns to session. A recess appointee exercises
the same authority as an appointee who has been confirmed by the Senate although he or she
may not command the same deference. The last appointment of a judge under this recess
authority occurred in 1981.

3.3 The Role of the Legislature in the Process of Appointment of Judges

In the U.S, the U.S. Congress is heavily involved throughout the process of appointment of
federal judges. This includes both selection of candidates and confirmation of nominations.
Selection of Candidates the Congress's influence in the selection of potential candidates lies in its
capacity to make recommendation on potential nominees. According to the information obtained
from the Senate Judiciary Committee it states that the names of potential nominees often are
recommended by Senators or sometimes members of the House who are of the President's
political part.
District Courts
Traditionally Senators are asked to recommend one to three potential nominees for a district
court vacancy in the state which the Senators represent. It is reported that the process of selecting
judicial nominees has become more time consuming and prolonged in district courts level as
Senators are slow in making recommendations for district court vacancies.
Supreme Court and Circuit Courts
The involvement of Senators in the process of selecting candidates for the Supreme Court and
circuit courts judicial vacancies is slightly lighter. The Supreme Court and circuit courts have
jurisdictions that span the whole nation and several states. The President therefore has greater
discretion and defers less to individual Senators when selecting nominees for the Supreme Court
and circuit courts. When a vacancy appears on the Supreme Court or a circuit court some

15

Senators may seek to influence the selection of the new nominee. In such cases the President
may need to take their recommendations into account for political reasons.15
Blue Slips
Before 1979 the counsel of the Senate Judiciary Committee sent out blue slips to the two
Senators from the nominees state and if it was returned marked objection by either Senator
regardless of party. The custom was that no confirmation hearing would be scheduled. This
custom was changed after Senator Edward Kennedy became the head of the Committee. He
made it clear that Senators who withheld the blue slips of persons nominated for judgeships from
their states could no longer rely on the chairman to kill those nominations. At present though
negative blue slips cannot kill a nomination customarily it remains a common way to collect
opinions of the Senators from the nominee's state.
Confirmation of Nominations For years when there is a divided government with the President
and the majority members in the Senate coming from two different parties intentional delays may
result in Senators refusing to bring controversial nominations to a vote and instead using stall
tactics to exhaust nominees and force their withdrawal. In 1999 and 2000 there were respectively
50 and 60 federal judiciary vacancies. According to a study the Senate took an average of 201
days to confirm President Clinton's judicial nominees as opposed to 144 days during President
Bush's administration and 138 days during the Reagan administration.
4. APPOINTMENT OF JUDGES IN INDIA;
a) COLLEGIUM SYSTEM:
The Collegium system is one where the Chief Justice of India and a forum of four senior-most
judges of the Supreme Court recommend appointments and transfers of judges. However, it has
no place in the Indian Constitution. It is not mentioned in either in the original constitution of
India or successive amendments.
The system was evolved through Supreme Court judgments in the Three Judges Cases:
S.P. Gupta case (December 30, 1981) or the First Judges Case: It declared that the primacy of
the CJIs recommendation on judicial appointments and transfers can be refused for cogent
15 http://www.uscourts.gov/about-federal-courts/court-role-and-structure, 19/9/2015, 8:00pm
16

reasons. The ruling gave the Executive primacy over the Judiciary in judicial appointments for
the next 12 years.
Supreme Court Advocates on Record Association versus Union of India or the Second Judges
Case (October 6, 1993): The majority verdict gave back CJIs power over judicial appointments
and transfers. It says the CJI only need to consult two senior-most judges. The role of the CJI is
primal in nature because this being a topic within the judicial family, the Executive cannot have
an equal say in the matter, the verdict reasoned. However, confusion prevails as the CJIs start
taking unilateral decisions without consulting two colleagues. The President is reduced to only
an approver.16
In Special Reference case of 1998 or the Three Judges Case (October 28, 1998): On a reference
from former President K.R. Narayanan, the Supreme Court lays down that the CJIs should
consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial
appointments and transfers.
b) NATIONAL JUDICIAL APPOINTMENTS COMMISSION:
The National Judicial Appointments Commission Bill, 2014 introduced in the Lok Sabha on
August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill was
introduced conjunction with the Constitutional Bill, 2014, which establishes and provides
constitutional backing to the National Judicial Appointments Commission (NJAC). The Bill
provides for procedure to be followed by the NJAC for recommending persons for appointment
as Chief Justice of India, Other Judges of the Supreme Court, Chief Justice and other Judges of
High Courts. Both the bills have been passed and ready to become act once President gives
assent. The acts now have ended the Collegium system and replaced it with Judicial
Appointments Commission wherein executive will have a say in appointment of judges of the
Supreme Court and the 24 high courts.
NJAC will derive its existence from the amended Article 124(2) of the constitution of India.
Whenever there is are vacancies in the Supreme Court or High Courts the Central Government
will make a reference to the NJAC within a time frame as follows: Existing vacancies: within 30
16AIR 1982 SC 149, 20/20/2015, 6:00pm

17

days of act coming into force, Vacancy due to completion of term: Six months in advance,
Vacancy due to death or resignation: within 30 days. Thereafter, the NJAC will make
recommendations to the President for appointments of SC and HC judges. The 99th amendment
of the Constitution inserts a new Article 124A, which provides for composition of the NJAC.
According to this, NJAC would consist of Chief Justice of India, two senior most Supreme Court
Judges, the Union Minister of Law and Justice, two eminent persons to be nominated by a
committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of
Opposition in the Lok Sabha. Of the two eminent persons one person would be from the
SC/ST/OBC/ minority communities or be a woman. The eminent persons shall be nominated for
a period of three years and shall not be eligible for renomination.17
According to a new article 124B, the functions of the NJAC will be recommending persons for
appointment as HC and SC judges, including chief justice in each case, recommending transfer
of Chief Justices and other Judges of High Courts from one High Court to any other High Court,
ensuring that the persons recommended are of ability and integrity. The article 124C empowers
the parliament of India to pass a law to regulate the procedure of amendments and empower the
NJAC to lay down procedures for its functioning. Using this power, Parliament passed the NJAC
act 2014.
Procedure for Selection of the Chief Justice of Supreme Court:
The act mandates the NJAC to recommend the name of senior most judge of the Supreme Court
for appointment as Chief Justice of India. Provided he must be considered fit to hold the office.
Procedure for Selection of the other judges of Supreme Court are NJAC shall recommend names
of persons on the basis of their ability, merit and other criteria specified in the regulations.
Procedure for Selection Chief Justices of HCs:
The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a High Court on
the basis of seniority across High Court judges. The ability, merit and other criteria of suitability
as specified in the regulations would also be considered. Appointment of other HC Judges:
17 http://www.thehindu.com/news/national/njac-somnath-wants-govt-to-set-thingsright-without-feuding-with-judiciary/article7802586.ece,22/10/15,6:00pm
18

In case of appointment of a regular Judge of a High Court, commission will also seek views in
written from Governor of the state, Chief Minister of the state, Chief Justice of High Court, Veto
Power of NJAC members. The members of NJAC have veto power in selection of other judges
of SC and HC. The NJAC shall not recommend a person for appointment if any two of its
members do not agree to such recommendation.
Power of President to require reconsideration:
The act empowers the president to reconsider the recommendations made by it. If the NJAC
makes a unanimous recommendation after such reconsideration, the President shall make the
appointment accordingly. 18
5. COMPARATIVE ANALYSIS IN THE PROCESS OF APPOINTMENT OF
JUDGES IN INDIA AND U.S.A
The appointment of judges in both the countries has been granted as executive power of the
President by both the Constitutions. But in India the appointment is made by consultation with
judiciary, whereas in U.S the appointment is made with parliamentary approval. Both the nations
follow the appointive system of judicial appointment where the appointments are made by the
executive government. At one time appointment of judges in U.S.A were used to be made by the
elective method of appointment of judges, but during the latter part of the nineteenth century, the
general trend begin to move away from the elective system.
Now the Comparative analysis as to the process of appointment of judges between India and
U.S.A can be better made by comparing the two methods in which the appointive method of
appointment of judges is employed, i.e. the appointive method with parliamentary approval and
appointive method in consultation with judiciary. These mechanisms were followed in order to
reduce the exclusive executive power to appoint judges.19
18 http://www.livemint.com/Politics/rcsu24yGQ0frdanyQ9fVVL/All-you-need-to-knowabout-NJAC.html,23/10/15,9:00pm
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Parliamentary Approval (Method of appointment in U.S.A):

Under this mechanism the executive government initially selects the candidates for judicial
office, but makes formal appointments only when the selections are approved by parliament. For
example, in the United States the President nominates and by and with the Advice and Consent
of the Senate appoints federal judges. Parliamentary approval provides a check on the power of
the executive and there is scope for public scrutiny of the appointment process. Nevertheless, this
system has some inherent defects. Firstly, parliament has nothing to do with the initial stages of
selecting candidates. Since the initial selection of candidates is a vital issue in appointing judges
and it is exclusively vested in the executive, this system may not be effective to control
preeminent political or other relevant considerations in selecting candidates for judicial office.
Rather it may foster an increasing tendency to introduce political bargaining. Secondly, although
the requirement of approval by parliament may impose some restrictions on the discretion of the
executive government, it may not be effective to change the basic form of political infighting.
Moreover, it may result in the kind of coalition building behavior common in other legislative
matters. Thirdly, if the party in power commands a majority in parliament, political patronage
may still be a strong factor in appointing judges. Therefore, though parliamentary approval has
some implications for checking exclusive executive power in appointing judges and making the
appointment process open to the public through parliament, it has serious drawbacks. The
parliamentary mechanism is transparent and open to public scrutiny, but if there is a majority in
Parliament, nothing can be done: even if the public does not approve of the appointment.
Consultation with Judiciary and Legal Profession (Method of appointment in India):
On the contrary India follows an appointive method of judicial appointment in consultation with
the judiciary. The constituent assembly completely rejected the role of legislatures in the
appointment of Judges. But the Indian Constitution is silent on the aspect of the primacy of
opinion of Chief Justice of India in the matter of appointment of judges and rather it provides the
balanced approach in the matter of appointment of judges giving primacy to neither of the wings
nor the executive nor the judiciary. In other words the constituent assembly had intended a totally
different model for appointment of Judges i.e. co-operative and consensual consultative process

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for the appointment of judges in India which is not followed in India presently for the reasons
unknown and the judicial interpretations had further confused the whole issue.20
Generally, under this method of appointment executive government appoints the judges in
consultation with the senior judiciary and legal profession. Senior members of the judiciary and
legal profession are consulted, and the consultations may be formal or informal. Judges are in a
position to assess the performance of lawyers who are to be appointed to judicial office.
Therefore, consultation with members of the higher judiciary is very significant in appointing the
best-qualified persons to judicial office. It is an important means to strengthen the independence
of the judiciary Consultation with members of the legal profession is also very important. A body
representing the legal profession may be able to assess the character and ability of the lawyers to
be appointed as judges. It can help to select suitable persons for judicial office. Therefore, the
consultation system has significant implications for the quality of the judiciary and public
confidence in it. However, it has a serious limitation, because the efficacy of consultations
depends mostly on the attitude of the executive government. It could be that after consultation
with the judiciary and legal profession the executive government will ignore the opinion given
by them. Thus the ultimate weight of the consultation system is dependent on the executive. If
the executive is reluctant to give due consideration to the advice of the judiciary and legal
profession, this system is useless. In fact, consultation should be an effective consultation and in
this regard the Indian system of consultation with the judiciary is worth consideration.
CONCLUSION:
In the Collegiums system the chief justice of India and four other senior most judges of our
supreme court recommended the appointments and transfer of judges. Although the word
collegium has no place in the constitution, it was used by justice Bhagwati in the majority
judgment of S. P. Gupta v. Union of India. Collegiums system was misused in recent time. It
failed in maintaining transparency in appointing judges and there was delay in disposal and
pendency of cases. The drawbacks in the collegium system led to the creation of new system, so
it was replaced by NJAC. Now, it was struck down by the supreme down on October 17, 2015 on
the grounds of various reasons first one is it unconstitutional, it questioned the independent of
20 http://www.lawteacher.net/free-law-essays/constitutional-law/review-of-judicialappointments-india-law-essays.php,26/10/15,7:00pm
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judiciary, and violating the principle of separation of powers. Judges appointing judges is the
only way for ensuring judicial independence it may not be correct. The one of the objective of
the constitutions is that independence of judiciary. Independent judiciary is the foundation of
democracy. But NJAC questioned the independence of judiciary. Independence of judiciary
primarily involves the appointment of judges. The political interference in the appointment of
judges not leads to shine and survive of democracy. Although it is valid in researcher
prospective.
Present Attorney general Mukul Rohatgi claimed that Collegiums system was illogical. The
appointment made by the collegiums was bad appointments and bad integrity. However
government has willing to do certain changes in National judiciary appointment commission
(NJAC). After the verdict of the Supreme Court about NJAC our union finance minister Arun
Jaitly clearly that all court orders have to be accepted. He entitled to say that it is an incorrect
order. We have to obey even if it is an incorrect order. In his perspective rejection of NJAC is not
correct decision. Now NJAC has been scrapped but it will be lead to debate on good and
transparent judiciary system. Most of them expressing disappointment about the decision of
Supreme Court. But Supreme Court asked to politicians and civil society give final opinion about
the appointment of judges.
What people want is transparency and objectivity in the appointment of judges. Finally NJAC
is peoples will.
BIBILIOGRAPHY:

The cultural implications of judicial selection-Yaxta Maya Murray

Judicial selection in the states a critical study with proposal for reforms-Patrick Winston
Dunn

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