DR. RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY, LUCKNOW

2014-2015

FOUNDATION OF LAW

Final Project

On

“Issue of Procedure of Appointment of

Judges to Higher Courts”

Submitted to: Submitted by:

Mr. Manwendra Kumar Tiwari Sakshi

Asst. Professor (Law) B.A.LL.B(H)

Dr. RMLNLU,Lucknow Sem.-1st

Sec.- B

Roll no.- 111

TABLE OF CONTENTS

1. Introduction

2. Procedure of appointment of judges to the higher courts

3. Appointment of chief justice of India

4. Appointment of judges of high courts

5. Controversy of executive procedure

6. Controversy of judicial procedure

7. Attempts made for appointment of higher courts judges

National judicial commission, 2003

214th report of law commission

Judicial appointment commission bill, 2013

National judicial appointment commission bill,2014

INTRODUCTION

The Indian judiciary has always been accorded independence in our constitution framework

and respect in the mind of the people. It has, in recent decades, been regarded by many as the

branch of government most responsive to the needs of ordinary Indians.

The superior judiciary in India has performed exceedingly well over the last five decades and

has contributed significantly to the advancement of public good and good governance. It has

upheld the balance between the Union and the States, effectively enforced the rule of law and

has advanced the cause of human rights. This has proved possible because of many strong,

independent and learned judges, of whom any nation can be justly proud of. But over the last

decade or two, however, certain weaknesses in the system have come to light, regarding

which every Indian feels concerned. Indeed judiciary itself has been grappling with these

problems which have ultimately led to the judiciary practically taking over the function of

appointing and transferring the members of judiciary.

Here the issue is the procedure of appointment of judges should be in executive control or in

judicial control. The point is the independence of judiciary from other pillars of government.

The independence of the judiciary from the executive and the legislature as well as

independence of each and every judge within the judiciary is considered as a necessary

condition for free society and a constitutional democracy. Therefore, constitution provides

for independence not only of the SC but also of the HC and subordinate courts.1

Independence of judiciary is the cornerstone of our Constitution. It has been held to be a

basic feature of our Constitution. The appointment, transfer, discipline and all other service

was placed entirely in the hands of the judiciary; the executive was expected to make or issue

formal orders only. So far as superior judiciary is concerned, the power of appointment was

vested in the President but it was conditioned by the requirement of consultation with

judiciary. A convention was developed according to which the recommendation always and

invariably emanated from the Chief Justice of the High Court (in the case of appointment to

High Court) and from the Chief Justice of India (in the case of the Supreme Court of India).

Even half a century after the promulgation of the constitution, the basic matter of judicial

appointments is far from settled. The basic thrust of the recent Judges decision has been to

1 Mahendra p. Singh, constitution of India, p. 413

secure greater judicial power and autonomy over the executive. After independence in 1950,

many attempts have been made for the judicial appointment over the issue whether judicial

appointment should be in the hand of executive or judiciary itself. Many attempts were made

but the Three Judges cases (1982, 1993, and 1998) were important.

Independence of judiciary is a basic feature of constitution.

The existing procedure in effect transferred the ‘primacy’ from the Chief Justice of India to

the group of Judges to be consulted. Since then controversy against the said collegium system

is going on.

PROCEDURE OF APPOINTMENT OF JUDGES TO HIGHER COURTS

APPOINTMENT OF JUDGES OF SUPREME COURT

Article 124(2) of Indian constitution provides for the appointment of judges to the SC. It

says 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 courts in the states as the president may deem necessary for the

purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a judge other than the chief justice, the Chief

Justice of India shall always be consulted.”2

The Chief Justice is appointed by the president after consultation with such judges of the

SC and HC as he deems necessary. The other judges are appointed by the president after

consultation with the CJI and such other judges of the SC and HCs as he deems

necessary. The consultation with CJI is obligatory in the case of appointment of a judge

other than chief justice.3

CONTROVERSY OVER CONSULATION

Supreme Court of India has given different interpretation of the word ‘consultation’.

In a decision rendered by a seven-judge constitution bench in S.P .Gupta vs. union of India or

First Judges Case, 19824 the majority held that ‘consultation’ does not mean ‘concurrence’

and ruled further that the concept of primacy of the Chief Justice of India is not really to be

found in the Constitution. It was held that proposal for appointment to High Court can

emanate from any of the four constitutional functionaries mentioned in Article 217 – and not

necessarily from the Chief Justice of the High Court. It declared that the “primacy” of the

CJI’s recommendation to the President can be refused for “cogent reasons”. This decision

had the effect of unsettling the balance till then obtaining between the executive and judiciary

in the matter of appointment. The balance tilted in favour of the executive. Not only got the

office of the Chief Justice of India diminished in importance, the role of judiciary as a whole

2 P.M.Bakshi, The Constitution of India; p.1413 M Laxmikanth; Indian Polity, p.23.1

4 AIR 1982 SC 149

in of the Chief Justice of India got diminished in importance, the role of judiciary as a whole

in the matter of appointments became less and less. role of judiciary as a whole in the matter

of appointments became less and less. After this judgment, certain appointments were made

by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of

affairs developed its own backlash.5

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court

Advocates-on-Record Association vs. Union of India or Second Judge Case, 19936 over-ruled

the decision in S.P. Gupta. The nine-Judge Bench (with majority of seven) not only overruled

S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the

Supreme Court in the interest of “protecting the integrity and guarding the independence of

the judiciary.” The majority verdict written by Justice J S Verma said “justifiability” and

“primacy” required that the CJI be given the “primal” role in such appointments. It

overturned the S P Gupta judgment, saying “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. For the same reason, the primacy of the Chief Justice of India was held to be

essential. It held that the recommendation in that behalf should be made by the Chief Justice

of India in consultation with his two senior-most colleagues and that such recommendation

should normally be given effect to by the executive. Elaborate reasons were recorded in

support of the proposition that selection of judges must be in the hands of the judiciary in this

country and how the systems prevailing in other countries are alien to our constitutional

system. One of the judges relied upon Article 50 of the Constitution which speaks of

separation of judiciary and executive and excluded any executive say in the matter of

appointment to safeguard the “cherished concept of independence.” It held at the same time

that it was open to the executive to ask the Chief Justice of India and his two colleagues to

reconsider the matter, if they have any objection to the name recommended but if, on such

reconsideration, the Chief Justice of India and his two colleagues reiterated the

recommendation, the executive was bound to make the appointment. Reactions to this

judicial assertion of power have not been uniform. In short, the power of appointment passed

into the hands of judiciary and the role of the executive became merely formal.7

5 http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm 6 1993 (4) SCC.447 http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm & http://indialawyers.wordpress.com/2011/08/24/the-collegium-controversy/

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role

of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma

spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went

on to write individual judgments supporting the majority view. But Justice Ahmadi had

dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two

judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or

none at all. For the next five years, there was confusion on the roles of the CJI and the two

judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions

without consulting two colleagues. Besides, the President became only an approver.

The 1993 decision was reaffirmed in Third Judges Case, 19988 in a unanimous opinion

rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the

President under Article 143 of the Constitution. President K R Narayanan issued a

presidential reference to the Supreme Court as to what the term “consultation” really means

in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if

the term “consultation” requires consultation with a number of judges in forming the CJI’s

opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In this

case the court opined that the consultation process to be adopted by the CJI requires

‘consultation of plurality judges’. The sole opinion of the CJI does not constitute the

consultation process. All the basic conclusions of the majority in the 1993 decision were

reaffirmed. It was held that the recommendation should be made by the Chief Justice of India

and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-

most colleagues) and further that Judges of the Supreme Court hailing from the High Court to

which the proposed name comes from must also be consulted. In fact, the Chief Justice of

India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for

the purpose of appointment of Judges to the Supreme Court.9

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of

the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of

the highest judiciary over the executive. It is Third Judges Case, which is prevalent now days.

8 1998 (7) SCC 7399 Supra note

It is now clear that appointment of judges is not purely executive process. Every judge of the

SC is appointed by the president by warrant under his hand and seal. The president’s power

of appointment of judges is not unfettered. He cannot appoint without consultation of

judiciary. It shows the independence of judiciary.

COLLEGIUM OF JUDGES: Collegium for appointment of SC judges consist of-

Chief justice of India

Four most senior judges of the court.

Even if two judges give an adverse opinion, the CJI should not send the recommendation to

the government.10

Recommendation of the collegium is binding on the president. He may, however, not

appoint a person whom for specific reasons he does not consider suitable for appointment. In

such case the collegium must reconsider its recommendation. On recommendation it may

either drop the name of the person not found suitable by the president or reiterate its

recommendation. In the latter case the president is bound to accept the recommendation.11

APPOINTMENT OF CHIEF JUSTICE OF INDIA:

Constitution does not provide the procedure for the appointment of the chief justice. Practice

has been to appoint senior most judge as the CJI.

So far as the appointment of the Chief Justice of the Supreme Court of India is concerned,

both the 1993 decision and the 1998 opinion lay down that the senior-most judge should

always be appointed as the Chief Justice of India.12

CONTROVERSY:

From 1950 to 1973, the practice has been to appoint the senior most judge of the SC as chief

justice of India. This established convention was violated in 1973 on the retirement of the 13th

10 M. Laxmikanth, Indian Polity, p.23.211 Mahendra P. Singh, constituition of India, p.41312 http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm.

chief justice, Sikri on April 24, 1973. Justice A N Ray was appointed as the chief justice of

India by superseding three senior judges, Justices Shelat, Grover, and Hegde. The three

judges resigned in protest. Again in 1977, on the retirement of chief justice Ray M U Beg

was appointed as the chief justice of India by superseding the then senior most judges Justice

Khanna. However, after the retirement of Chief Justice Beg, the senior most judges, Justice

Chandrachud was appointed the chief justice. This discretion of the government was curtailed

by the SC in the Second Judges Case (1993), in which the Supreme Court ruled that the

senior most judge of the Supreme Court should alone be appointed to the office of the chief

justice of India. 13

So the Chief Justice of India is appointed by the president after consultation with such judges

of the SC and HCs as he deems necessary.

APPOINMENT OF JUDGES OF HIGH COURT

Clause (1) of Article 217 of Indian constitution says that “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”.14

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. (Of course, in the matter of

appointment of Chief Justice, the consultation with the Chief Justice is not required).

In case of a common HC for two or more states, the governors for all the states concerned are

consulted by the president.

CONTROVERSY:

13 Mahendra P. Singh, constitution of India, p.41414 P.M. Bakshi; The Constitution of India,p. 189

In the Second Judges Case, 1993, the SC ruled that no appointment of a judge of the HC can

be made, unless it is in conformity with the opinion of the CJI. In the Third Judges Case,

1998, the SC opined that in case of the appointment of HC judges, the CJI should consult a

collegium of two very senior judges of the Supreme Court. Thus, the sole opinion of the chief

justice of India alone does not constitute the ‘consultation’ process.15 In case of disagreement

between the president and the chief justice of India the opinion of the latter must prevail.

COLLEGIUM OF JUDGES: Collegium for appointment of HC judges consist of-

Chief justice of India

Governor of the state concerned

Chief justice of concerned high court

TRANSFER OF JUDGES:

The president can transfer a judge from one HC to another after consulting the CJI under

clause (1) of article 222 of the constitution.

In Third Judges Case,1998, the SC opined that in case of the transfer of the HC judges, CJI

should consult, in addition to the collegium of four senior most judges of the SC, the chief

justice of the two HCs ( one from which the judge is being transferred and other receiving

him). Thus, the sole opinion of the CJI does not constitute the ‘consultation’ process.16

CONTROVERSY OF EXECUTIVE PROCEDURE

Before Second Judges Case, 1993 appointment process was in the hand of executive. First

Judge Case, 1982 allowed the executive more power. Quality of judges was being declined in

the appointment of judges. Various bars- measured by legal ethics, professionalism, legal

skills, educational attainments-has also generally declined.

During the heyday of the Emergency, when executive interference was supposed at its

highest and good senior judges were routinely superseded in favour of judges whose

philosophies and personal inclinations ostensibly comported more with the governments’

15 M. Laxmikanth; Indian Polity,p. 2816 Ibid, p. 28.3

own, it is less than clear that the executive produces ‘bad appointment’. To take just one

example, Justice Iyer and Bhagwati were elevated to the SC during Mrs Gandhi’s tenture.

Nobody has ever accused Justice Iyer of being a lackey of the government; and although

Justice Bhagwati did abase the judiciary by penning a flattering public letter to Mrs Gandhi

on her return to power in 1980, his contributions to giving PIL a good deal of momentum

were widely lauded at the time.17

This example is not enough to sustain the claim that the executive’s role in judicial

appointment should be reduced. After all, it is not clear that judicial control of appointments

has had much success in reducing the controversy over appointments.

CONTROVERSY OF JUDICIAL PROCEDURE

There has been at least as much litigation regarding transfer and appointment of chief justice

to various HCs after the judiciary took over control of appointment. There is one example, at

the moment there are 180 vacancies for HC judges. Despites rules that enjoin that the judicial

collegium must recommend filling a vacancy six months before it arises, the President has

not yet received even the first recommendations. It hampered the judiciary’s ability to

produce appointments.18

This provision curtails the absolute discretion of the executive as well as ensures that the

judicial appointment is not based on any political and practical consideration.

ATTEMPTS MADE FOR THE APPOINTMENT OF HIGHER COURTS JUDGES

The system of appointment to the higher courts, as stipulated by the constitution and as

interpreted by the SC, has always placed the highest premium on judicial independence. India

is unique in the degree of judicial control over judicial appointment. In no other country in

the world, does the judiciary appoint itself.

The existing procedure has more role of judiciary. Many amendments were brought by the

government to ensure the role of executive in the appointment of higher court judges.

NATIONAL JUDICIAL COMMISSION, 2003

17 Pran chopra; The supreme court versus the constitution, p.17018 Ibid, p.171

In order to have a statutory body to look into the affairs of higher judiciary, the Constitution

(98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It

provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-

most judges of the Supreme Court as its members. The Union Law Minister would be a

member along with an eminent citizen to be nominated by the President in consultation with

the Prime Minister.19

Reasons of the failure of this bill are more- than- desire says to executive in the matter of

judiciary, which may undermine the independence of judiciary and lack of transparent

procedure in making appointment.

One positive feature of this bill is that it makes the recommendation for appointments made

by NJC a binding on president. This reduces the chances of any possible friction between the

commission and the executive. This effort to replace the collegium system had also not

succeeded.

214 TH REPORT OF LAW COMMISSION, 2008

The Law Commission of India submitted to the Government of India, its 214th Report on

‘Proposal for Reconsideration of Judges cases I, II and III, also known as Three Judges

Case.’ The Hon’ble Chairman of the Commission, Dr. Justice AR. Lakshmanan, former

Supreme Court Judge, forwarded the said Report to the Hon’ble Union Law Minister, Dr.

Hans Raj Bhardwaj.20

The 1993 judgment overruled the S.P.Gupta’s case, which had eroded the primacy of Chief

Justice of India in the appointment of Supreme Court and High Court Judges. Further, in

Special Reference 1 of 1998, the Supreme Court not only strongly reinforced the concept of

‘primacy’ of the Chief Justice of India’s opinion but also increased the number of judges the

Chief Justice of India must consult before providing his opinion. The said procedure in effect

transferred the ‘primacy’ from the Chief Justice of India to the group of Judges to be

consulted. Since then controversy against the said collegium system is going on.

In view of the above, the Law Commission had, suo motu, undertaken the study on the

subject. The Commission examined the law on the subject, various recommendations of

19 http://www.parfore.in/pdf/98_Constitutional_Amendment_Bill_2003-Seeking_to_Create_a_National_Judicial_Commission.pdf 20 http://www.indlaw.com/guest/DisplayNews.aspx?CE45BF57-04CE-4A33-919C-70CEAF461F53

Parliament Standing Committees and law of foreign jurisdiction like America, Australia,

Canada and Kenya where the executive is the sole authority to appoint the Judges or the

executive appoints in consultation with the Chief Justice of the Country.

The Commission has recommended two alternatives:

One is to seek a reconsideration of the three judgements aforesaid before the Hon’ble

Supreme Court to bring about clarity and consistency in the appointments.

a law to restoring the primacy of the Chief Justice of India and the power of the

executive to make the appointments.

214th report Of the Law Commission of India (2008), suggested an equal role for the

Judiciary and the Executive in the selection and appointments to High Courts and the

Supreme Court.

JUDICIAL APPOINTMENT COMMISSION BILL, 2013

JAC bill, 2013 was brought into light by UPA government by introducing it in the Rajya

Sabha.21 Rajya sabha passed the 120th amendment bill that amends article 124(2) and

217(1). If it created once, it will replace the collegium system of appoints to HC and SC.

After review of the pronouncements of the Supreme Court (three judge case) and relevant

constitutional provisions, it was felt that a broad based Judicial Appointment Commission

could be established for making recommendations for selection of Judges. The proposed Bill

would enable equal participation of Judiciary and Executive, make the system of appointment

more accountable, transparent, and objective and thereby increase the confidence of the

public in the institution.22

This Constitution Amendment Bill, 2013, provides for setting up of a Judicial Appointments

Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2),

217(1) and 222(1).

This JAC bill added 120th constitutional amendment in the constitutional.

21http://www.prsindia.org/uploads/media/Judicial%20Appointment/Judcial%20appointment%20bill, %202013.pdf 22 http://iksa.in/india-ink/judicial-appointments-commission-bill-2013-summary/696/

The 120th constitutional amendment Bill, 2013 amends provisions related to

appointment and transfer of judges to the higher judiciary.

This amendment bill to provide for the composition of the Judicial Appointment

Commission (JAC) for the purpose of recommending person to the president for

the appointment as CJI and other judges of the SC, chief justice and other judges

of HC, its functions, procedure to be followed by it and for matters connected

therewith or incidental thereto.

The JAC Bill, 2013 states that the JAC shall comprise: (i) the Chief Justice of

India (CJI), an ex officio chairperson (ii) two other senior most judges of the

Supreme Court, as ex officio members (iii) the Union Minister for Law and

Justice, as member and (iv) two eminent persons, as member (to be nominated by

the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.)23

The Union Cabinet gave its nod for conferring constitutional status to the proposed Judicial

Appointments Commission (JAC). The constitutional amendment bill has to be passed in

parliament by two-third majority. A parliament standing committee was set up to make

amendment in the bill. This committee made recommendation that this bill cannot be altered

by ordinary composition, which requires a simple majority.24

According to the proposal approved by the Cabinet, new Article 124 A of the Constitution

will define the composition of the JAC; Article 124 B will define its functions.

The Constitution (120th ) Bill, 2013 was passed by the upper house of India’s Parliament, the

Rajya Sabha, on September 5, 2013. The Constitution Amendment Bill seeks to demolish the

“collegium” model of judicial appointments in India, put into place by the two “Judges

Cases” decided by the Supreme Court of India in 1993 and 1998 respectively.25

After the constitutional bill was approved by cabinet, it was tabled in Lok Sabha with official

amendments. The committee, while suggesting amendments to the Bill, said there should be

three eminent persons in the commission, instead of two as provided for in the present Bill,

and at least one out of them should be an SC/ST/OBC/woman/minority, preferably by

rotation.26

23 http://www.prsindia.org/billtrack/the-judicial-appointments-commission-bill-2013-2906/ 24 http://www.thehindu.com/news/national/cabinet-clears-constitutional-status-for-judicial-appointments-commission/article5504171.ece 25 http://jilsblognujs.wordpress.com/2013/12/16/the-judicial-appointments-commission-a-delicate-balance/ 26 Supra note

The Bar Council of India (BCI) has urged the Centre to withdraw the JAC Bill providing for

constitution of a National Judicial Commission for appointment of judges of High Courts and

the Supreme Court as it interfered with the judiciary’s independence and would affect the

basic structure of the Constitution. Bill was rejected by lok sabha.

Since JAC bill was withdraw by the centre on the suggestion of BCI, there are also views

contradictory to it. Some says that the existing system should be replaced.

The recommendation for urgent and immediate review of the present procedure of

appointment of judges was reinforced by Justice J. S. Verma, former CJI, who had written

the lead judgment in the 1993 case (Second Judges Case) which has completely eliminated

and excluded the executive. Justice Verma said: “My 1993 judgment, which holds the field,

was very much misunderstood and misused. It was in that context I said the working of the

judgment now for some time is raising serious questions, which cannot be called

unreasonable. Therefore, some kind of rethink is required.”

NATIONAL JUDICIAL APPOINTMENT COMMSSION, 2014

National Judicial Appointments Commission (NJAC) is a proposed body responsible

for the appointment and transfer of judges to the higher judiciary in India. The 121st

Constitution Amendment Bill 2014 will amend the constitutional if passed. The Bill,

if ratified by half of the state legislatures in India and assented by the President of

India, will replace the collegium system for the appointment of judges as mandated in

the existing pre-amended constitution by a new system.

Some important points regarding this bill:

The National Judicial Appointments Commission Bill, 2014 was introduced in the

Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr Ravi

Shankar Prasad.

The bill has been introduced in conjunction with the constitutional (121st

amendment) bill, 2014, which established the National Judicial Appointment

Commission (NJAC).

The Bill provides for the procedure to be followed by the NJAC for

recommending persons for appointment as Chief Justice of India and other Judges

of the Supreme Court (SC), and Chief Justice and other Judges of High Courts

(HC).

If the constitution bill is ratified, a new article 124A (provided for the composition of

NAJC), 124B (duty of NJAC) and 124C (power of parliament to make laws regarding

judicial appointment) will be inserted in the constitution.

COMPOSITION: The National Judicial Appointment Commission will consist of

following person;

CJI ( as chairman, ex officio)

Two other senior judges of the SC next to the CJI ( as ex officio)

The union minister of Law and Justice ( as ex officio)

Two eminent persons (to be nominated by a committee consisting of the Chief

Justice of India, Prime Minister of India and the Leader of opposition in the Lok

Sabha or where there is no such Leader of Opposition, then, the Leader of single

largest Opposition Party in Lok Sabha), provided that of the two eminent persons,

one person would be from the Scheduled Castes or Scheduled Tribes or OBC or

minority communities or a woman (as per the amendment). The eminent persons

shall be nominated for a period of three years and shall not be eligible for re-

nomination.27

PROCEDURE OF SELECTION OF SUPREME COURT JUDGES

Chief Justice of India: The NJAC shall recommend the senior most judge of the

Supreme Court for appointment as Chief Justice of India.  This is provided he is

considered fit to hold the office.

SC judges: The NJAC shall recommend names of persons on the basis of their

ability, merit and other criteria specified in the regulations.

The NJAC shall not recommend a person for appointment if any two of its members

do not agree to such recommendation.

27http://www.prsindia.org/uploads/media/national%20judicial/National%20Judicial%20Appointment%20comm %20bill,%202014.pdf

PROCEDURE OF SELECTION OF HIGH COURT JUDGES

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: The Commission shall seek nominations from

Chief Justice of the concerned High Court for appointments of High Court Judges and

then forward such names to the Chief Justice of the concerned High Courts for his/her

views. In both cases, the Chief Justice of the High Court shall consult two senior most

judges of that High Court and any other judges and advocates as specified in the

regulations. The Commission shall elicit the views of the Governor and Chief

Minister of the state before making recommendations.

The Commission shall not recommend a person for appointment if any two members

of the Commission do not agree to such recommendation.

The Constitution Amendment Bill passed by Lok Sabha on 13 August and by the

Rajya Sabha on 14 August 2014 to establish a six-member body for appointment of

judges to SC and HC. The National Judicial Appointments Commission Bill, 2014,

was also passed by the Lok Sabha and the Rajya Sabha to regulate the functions of the

National Judicial Appointments Commission.

NJAC has been given constitutional status to ensure that the government cannot

change its composition through ordinary bill

PASSED BY LOK SABHA

The Constitution (121st Amendment) Bill, 2014(by 367 in favour and nil

against) and The National Judicial Appointments Commission Bill, 2014 were passed

by Lok Sabha to set up a National Judicial Appointment Commission. Constitutional

Amendment Bill to scrap the collegium system of appointing Supreme Court and

High Court judges and cleared the NJAC Bill 2014 to regulate the procedure. The

amendment bill and NJAC bill seek to give constitutional status to the NJAC.

This bill meant to replace the collegium system with a commission, where the

executive too would have a say in selection of judges to the higher judiciary

The Lok Sabha voted unanimously for the two bills after the government accepted an

amendment moved by Congress. Commission was aimed at introducing a fair

procedure for appointment of judges and the government was committed to an

independent judiciary. While independence of judiciary is important, the sanctity and

supremacy of Parliament is equally important as it reflects aspirations of the people.

PASSED BY RAJYA SABHA

The Rajya Sabha passed the landmark National Judicial Appointments Commission

Bill, 2014 by a voice vote. The Bill was passed following a detailed discussion on the

government's proposal to scrap the existing collegium system for the appointment of

judges in higher courts.

The 99th Constitution Amendment Bill seeks to lay down the architecture for setting up

of the National Judicial Appointments Commission (NJAC) through another bill, aimed at

overturning the two-decade-old collegium system of appointing judges in the Supreme Court

and High Courts.

After the National appointment commission bill was passed by both house of the parliament,

it will send for ratification of states and assent of president.

CONCLUSION

The object of constituting the Commission is to enable participation of judiciary, executive

and eminent persons and will ensure greater transparency, accountability and objectivity in

the appointment of judges to higher judiciary.

As Thomas Jefferson said, “A judiciary independent of a king or executive alone is a good

thing; but independence of the will of the nation is a solecism, at least in a republican

government.”

The collegium system has no place in Indian constitution. Articles 124 and 217 actually

prescribed by Indian constitution for appointment of judges. Collegium system only comes

into existence after three judges cases.

Purpose behind the exercise was to ensure that there was more transparency in the

appointment process so that better judges occupy the slots in higher judiciary. The 214 th

report of law commission also suggest equal role of executive and judiciary.

BIBLIOGRAPHY

1. M.P.Singh; The constitution of India

2. Pran chopra; The SC vs. constitution

3. P.M. Bakshi; The constitution of India

4. M. Lakshmikanth; Indian Polity

http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm

http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm &

http://indialawyers.wordpress.com/2011/08/24/the-collegium-controversy/

http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm .

http://www.parfore.in/pdf/98_Constitutional_Amendment_Bill_2003-

Seeking_to_Create_a_National_Judicial_Commission.pdf

http://www.indlaw.com/guest/DisplayNews.aspx?CE45BF57-04CE-4A33-919C-

70CEAF461F53

http://iksa.in/india-ink/judicial-appointments-commission-bill-2013-summary/696/

http://www.thehindu.com/news/national/cabinet-clears-constitutional-status-for-

judicial-appointments-commission/article5504171.ece

http://jilsblognujs.wordpress.com/2013/12/16/the-judicial-appointments-commission-

a-delicate-balance/

http://www.prsindia.org/uploads/media/national%20judicial/National%20Judicial

%20Appointment%20comm%20bill,%202014.pdf