Literature Review on: A CRITICAL ANALYSIS OF JUDICIAL APPOINTMENTS IN INDIA: (with respect to Higher Judiciary)

In this book, the Author has mainly dealt with the problems of Judicial Appointments in the Higher Judiciary). Article 50 of the Indian Constitution provides a directive to the State to separate the judiciary from the executive in the public services of the State.[1] It is in pursuance of the Doctrine of Separation of Powers in the U.S.A. According to this Author, there is no water tight compartment or rigid personal separation[2] can be claimed by the Constitution of any Country. Regarding the provisions of Indian Constitution, we find that they relate only to the Supreme Court and the High Courts.[3]

The appointment or transfer of judges has always been a bone of contention between the executive and the judiciary.[4] The Constitution of India authorizes the president to appoint or transfer judges ‘after consultation with the chief justice of India’, it was felt among judicial class that mere ‘consultation’ did not ensure that the president would finally abide by the chief justice's recommendations regarding appointments or transfers.[5] The bitter experiences of the emergency period, when judges were selected on the basis of their political loyalty to the ruling Congress Party (under the euphemism of the then newly coined term 'committed judges'), alerted both the public and the members of the judiciary to the need for maintaining the independence of the judiciary through some infallible mechanism.[6]

Setalvad and Chagla who were eminent jurists had earlier suggested such mechanisms, but no government acted upon them.[7] Finally, the Supreme Court itself intervened in the dispute and in a judgment in a 1994 case (Supreme Court Advocates-on-Record Association vs Union of India) took upon itself the power of appointment of judges of the superior judiciary.[8] But, there is no transparency in the selection of judges, as we do not know by what criterion the Chief Justice of India and his senior colleagues arrive at the final choice.[9] There are allegations about family members of some senior judges having been promoted to the higher courts as well.[10]

According to Prof. B.L.Garg, there is no restriction provided concerning the interference in the subordinate Courts. In actual practice we find that the legislatures do interfere in the affairs of the subordinate Courts by various means like putting questions concerning the conduct of individual judges and by changing their service-conditions. Not only this, the legislatures in some States of India did try to interfere even with the freedom of the High-Court judges on grounds of parliamentary privileges.[11]

This is so because of the conflicting provisions under the Indian Constitution. This has caused a very serious controversy of principles. Should we abide by the principle of Supremacy of Parliament or should we be guided by the doctrine of Separation of Powers? This has not been cleared situation very much.[12]

Also, nowhere in the world we will be able to find this kind of system where the appointment of judges the sole prerogative of the judiciary.[13] There is this misconception in India that the independence of the judiciary will be compromised if the executive and the legislature participate in the appointment of judges.[14] The Author is of the opinion that such a notion is totally incorrect. The State is a political idea, all its organs have to be politically correlated in an environment legalized by the Constitution, which too is a political document. To consider the judiciary as an island above the working of the State is wrong. Such a perception can open the door to judicial authoritarianism.[15]

Another reason of contamination in the Judicial system is the offer of post-retirement offices by the executive to the Judges of the High Court and Supreme Court.[16] The framers of Indian Constitution have provided for some checks on the presidential power of choosing the judges.[17] Articles 124(2) and 217(1) enjoining that the president must, before making such appointments, consult with some judges of the Supreme Court and High Court and, in some cases, consultation with the Chief Justice of India or the Chief Justice of the relevant High Court has been made obligatory.[18]

Though it is provided as such there are still some loopholes regarding the provisions in the legal framework:

Firstly, Article 124(2) and 217(1) stipulate that the president will nominate the judges 'after consultation' with some jurists and judges of his own choice and this is mandatory. But, nowhere these provisions implicate that he must abide by the suggestions of such persons.[19]

Secondly, according to the report of our Law Commission, communal and regional consideration and even executive influence have often influenced the executive decision in the appointment of judges.[20]

Mostly, the sub-ordinate courts are the courts which are the first point of contact of the common man with regard to the justice delivery system.[21] It is because of the fact that they are burdened with the questions of both fact and law, without the privilege of choosing the composition of their docket.[22] For this reason, the problem of delay and pendency affects them more acutely. Court management practices should, therefore, be adopted by judges in the subordinate judiciary to combat the challenges of backlogs.[23]

The problem of backlog and delay is not as acute in other parts of the world. This is for a variety of reasons.[24] The US Supreme Court, for example, practices a selective docket system in which at least four out of its nine judges must opine that a petition contains important questions on the interpretation of the US Constitution or federal law.[25] In this manner, it annually grants hearing to only 75-80 cases out of the 7000 petitions filed before it in a year.[26] Under Germany, where the Federal Constitutional Court must decide each petition filed before it, a 3-Judge panel called a ‘Chamber’ pre-screens cases that fall under established precedent or raise no new issues, and quickly disposes of these cases.[27] The Court hears only those cases that pass the Chamber’s screening.[28]

The diversity of systems of judicial selection across the world suggests that there is no consensus on the best manner to guarantee independence.[29] The broader trend toward prejudging judges advocates that the dispute over the issue it creates should be refocused.[30]


For example, if the situation states that the judiciary is significantly politicized and is biased, then the issue raises as to whether such a view is a myth or a reality. If such a view meets the requisite criteria to establish such accusations, then such a situation becomes more troublesome; as the politicization of judiciary and the arbitrariness of the executive has been established as a fact which leads to the failure of the organ of the state as a whole.[31]

The specific problems with regard to the Judicial Accountability are identified and described as below:

I] Appointment system:

In 1993, a nine judge bench of SC laid down a new system for making appointments of judges in HC and SC.[32] This gave wide powers to the collegium of senior judges of the SC to select and make recommendation to the government for such appointments.[33] There is lack of transparency in the process, as there is no systematic procedure being followed for preparing the shortlists or for choosing among eligible members.[34] The whole process is entirely ad hoc and arbitrary, which has lead to political favouritism when appointments were in the hands of the executive and nepotism when it has been in the hands of the judiciary.[35]

The manner in which several appointments were made during 1981 to 1993 are all said to furnish proof of the fact that in our present stage of development, the domination or involvement of the executive in this process is not desirable.[36] The attempt by the Indian Judiciary to control every institution as a personalized rule, and its refusal to see the caliber of distribution of power of governance (a basic feature of democracy) are propensities which are not conducive to an independent and efficient judiciary.[37]

II] Impeachment:

According to the Constitution of India, the only way through which the members of the higher judiciary that is the Chief Justices and Judges of Supreme Court (SC) and High Courts (HC) are accountable or can be removed is through impeachment.[38] Article 124(4) provides for the process of impeachment on the grounds of proven misbehaviour or incapacity.[39] The Judges Inquiry Act, 1968 states that a complaint against a judge is to be made through a resolution signed either by 100 members of the Lok Sabha or 50 members of the Rajya Sabha to their respective presiding officers.[40]

There is only one single judge who has been impeached till date. However it will be a misjudgement if one thinks that the judiciary is free from corruption.[41] The loophole is the entire process of impeachment itself. It is undoubtedly lengthy and cumbersome. Many have even regarded this as a complete failure.[42]

III] Exemption from the Right To Information (RTI):

The attempt that has been made by the judiciary is to insulate themselves from the Right to Information (RTI) Act.[43] This it has sought to do by either not appointing public information officers or by framing rules which effectively deter information seekers.[44] The high courts such as Allahabad and Delhi ask for an application fees of Rs 500 as opposed to Rs 10 in other public authorities.[45] Many other High Courts have framed rules which prohibit the disclosure of information on administrative and financial matters.[46] Thus, information about appointment of Class 3 and 4 employees by the high court (which are usually made arbitrarily without issuing any advertisement or following any procedure) was denied by the Delhi High Court by citing their illegal rules which are in total violation of the RTI Act.[47]

This has effectively led to a situation of total impunity in the higher judiciary. Not only are corrupt judges effectively insulated from any action against them, they have also protected themselves from public exposure of wrongdoing by using the threat of contempt.[48]

IV] Judges Inquiry Act:

The judiciary had set up an “in-house mechanism” investigating corruption in order to prevent any outside body having disciplinary powers over them who compromise their independence.[49] This was proposed by the Judges Inquiry Act Amendment Bill 2006 which provided for a National Judicial Council consisting of the CJI, two senior-most judges of the SC and two CJ’s of HCs as members to enquire allegations.[50] In this in-house procedure, the problem that emerges is that the judges regard themselves as a ‘close brotherhood’ and therefore are unwilling to take any step against them.[51]

What is objectionable is Section 33, which says not to disclose any information relating to the complaint to any person in any proceeding except when directed by the Council which will make it impossible to publicize the charges.[52] Even if the in-house mechanism finds a judge guilty of serious misconduct, it can only recommend impeachment which again goes for voting in the parliament, leading to ultimate failure as we saw in the Ramaswamy case.[53]

V] Inadequacies in the legal regime governing Judicial Appointments:

Recently the passing of National Judicial Appointments Commission Act, 2014 has raised an apprehension of the presence of the political element in the composition that this could curtail the judicial independence.[54] There are several instances in the past where judicial appointments and transfer have been guided by political considerations.[55] The participation of the executive in appointment or transfer of judges could seriously undermine the independence of the judiciary.[56] It is important to note that all the judicial pronouncements and the committees appointed to look into the matters of appointment and transfer of judges in higher judiciary have been unanimous over the dilution of the role of the Executive in the process of appointment and transfer.[57] The Arrears Committee comprising of Chief Justices of three High Courts appointed in 1989 to deal with the issue of large arrears in the High Courts also recommended that the role of Executive in these matters should be minimized.[58]

The Author has referred a wide range of resources viz. books, online law journals, articles from authoritative online resources. However, the Author in this segment will provide a literature review of the key resources on which the Author has relied on and referred on the abovementioned topic of the current dissertation.

Firstly, the Author would review the book written by Prof. Madhav Godbole. In his book titled ‘The Judiciary and Governance in India’, he advocates for the Judicial Accountability in the higher judiciary and the need for such judicial accountability in India. In his book in Chapter seven which is ‘Counter-Balancing Independence and Accountability’, in this the author had elaboratively explained the fact that how judicial independence and judicial accountability are two separate concepts wherein grant of one would severely affect the another. For example, if the judicial accountability is increased, then the judges will not be so much independent in handling of cases as it would severely afftect their security of tenure, salary etc. whereas if there is excessive judicial independence would surely lead to judicial adventurism which is again unhealthy for the functioning of a democratic government such as India. Prof. Madhav Godbole therefore advocates for the balance of both these abovementioned aspects while following the fundamental principles of rule of law.

The Author has referred the abovementioned points and supported his arguments in consonance of the views depicted by Prof. Madhav Godbole in the second chapter of the dissertation.

However, Prof. Madhav Godbole though touched the aspect of accountability of lower judiciary in the form of transfers made by the higher judiciary and also had discussed the politicization of the judiciary in this regard, he completely ignores the transparency in the appointment process regarding the lower judiciary. Also, Prof. Madhav though he recommends for an independent commission for the system of appointment of judges in the higher judiciary still he fails to satisfy as to what should be the criteria of the selection process of the judges in the higher judiciary and also who should preside over such an commission in order to select the judges in the higher judiciary in an impartial manner.

Secondly, another important literary source which the Author has referred is regarding the Phd.thesis by Prof. V.R. Jayadevan entitled ‘Judicial Creativity in Constitutional Interpretation’. In his work, Prof. V.R. Jayadevan deals with innovatively interpreted by the Supreme Court in accordance with certain aspects viz, the independence of the judiciary, the basic structure of the Indian Constitution etc. which arises from the interpretation of the provisions of the Indian Constitution by the apex court. The whole thesis is divided into nine chapters out of which the chapter two to chapter five is relevant for reference as it deals with the appointment of judges in the higher judiciary and also the condition of services of judges in this regard.

The Author has referred this thesis in light of explaining the historical background of system of appointments of judges in the higher judiciary as well as to support the arguments being raised by the Author in relation to the selection of judges and their condition of services in the higher judiciary.

Although the research work done by Prof. Jayadevan is detail oriented and well established and argumentative, still the Author finds the holding of Prof. Jayadevan regarding the adoption of seniority rule in the matter of the appointment of CJI in India not proper and has referred the argument of Justice Katju (Refer Chapter II of Dissertation) in order to counter the argument put forward by Prof. Jayadevan in his work.

Thirdly, another major literary resource referred by the Author in the current dissertation is of the article ‘The NJAC Act – Is it the perfect remedy?’ written by Vikram Mishra and Ananth Balaji. In their article, the writers have focused on the NJAC Act, 2014 and analyzed the Act in a critical manner. The Author while critically analyzing the NJAC, Act, 2014 in the Chapter – III of the dissertation has referred to this article and supported his arguments based on the arguments proposed by the writers in the abovementioned article.

Though, this article is argumentative and represents the shortcomings of the NJAC Act, 2014 n a plain and language which is easily comprehensible yet this article fails to appreciate the salient features of the NJAC Act, 2014. Although it explains in a precise manner the shift from the collegium system of selection of judges in the higher judiciary to system of appointment of judges in the higher judiciary by the commission established under the NJAC Act, 2014.

Lastly, the Author has referred the work of Prof. Tom S. Clark in his book titled ‘The Limits of Judicial Independence’ which deals with the limits of judicial independence where the author holds that in order to see whether the judiciary is independent or not depends upon the judicial behaviour of the judges of a particular legal system.

Although the judicial behaviour holds the key to bring desirable results in the legal system of a particular country still the Author feels that somewhere down the line Prof. Tom S. Clark is not able to justify the significance of the role of judicial behaviour as an additional criteria of selection of judges in the higher judiciary besides measuring the judicial independence of a particular legal system.

[1] B.L. Garg, Problem Of The Separation Of Judiciary In India, available at:

<http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/41854047.pdf >, accessed on: 14-01-2015.

[2] Ibid.

[3] Ibid.

[4] Sumanta Banerjee, Judging the Judges, Economic and Political Weekly, Vol. 37, No. 50 (Dec. 14-20, 2002), pp. 4983-4984, available at: <http://www.jstor.org/stable/4412951>, accessed on: 10-04-2015.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Supra, N. 84.

[10] Ibid.

[11] Ibid.

[12] Supra N. 75.

[13] Centre for Law and Policy Research, Recasting the Judicial Appointments Debate: Constitutional Amendment (120th Amendment) Bill, 2013 and Judicial Appointments Commissioner Bill, 2013, Working Paper No.1/2014, available at: <http://clpr.org.in/wp-content/uploads/2014/02/JAC-Working-Paper.pdf>, accessed on: 13-01-2015.

[14] Supra, N. 84.

[15] Ibid.

[16] JSTOR, Judging the Judges, Economic and Political Weekly, Vol. 25, No. 24/25 (Jun. 16-23, 1990), pp. 1307-1309, available at:

<http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/4396397.pdf >, accessed on: 14-01-2015.

[17] Nirmalendu Bikash Rakshit, Judicial Appointments, Economic and Political Weekly, Vol. 39, No. 27 (Jul. 3-9, 2004), pp. 2959-2961, available at:

< http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/4415222.pdf >, accessed on: 14-01-2015.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Hon’ble Mr. Justice Ranjan Gogoi, Judge, Supreme Court of India, Speech Delivered on: Challenges facing the Indian Judiciary – Identification and Resolution, (One Day Sp. Prog. for District Judges 07 Dec. 2013), available

at:<http://www.hcmadras.tn.nic.in/jacademy/Article/Challenges%20to%20the%20Indian%20Judiciary%20-%20Ranjan%20Gogoi.pdf>, accessed on: 14-01-2015.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Supra, N.96.

[28] Ibid.

[29]Garoupa Nuno, Ginsburg Tom, Guarding the Guardians: Judicial Councils and Judicial Independence, The American Journal of Comparative Law, Vol. 57, No. 1 (Winter, 2009), pp. 103-134, available at:

<http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdf/20454665.pdf?acceptTC=true>, accessed on: 08-04-2015.

[30] Jonathan Remy Nash, Prejudging Judges, Columbia Law Review, Vol. 106, No. 8 (Dec., 2006), pp. 2168-2206, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdf/40041695>, accessed on: 08-04-2015.

[31]Supra, N. 97.

[32] CCS, Isha Tirkey, Judicial Accountability in India, Understanding and Exploring the Failures and Solutions To Accountability, (CCS Working Paper No. 247 Summer Research Internship Programme 2011), available at:

<http://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf>, accessed on: 15-04-2015.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Justice Shri B.P. Jeevan Reddy, National Commission To Review the Working of the Constitution – A Consultation Paper on Superior Judiciary, available at:

<http://lawmin.nic.in/ncrwc/finalreport/v2b1-14.htm>, accessed on: 17-04-2015.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40]Supra, N.116.

[41] Ibid.

[42] Ibid.

[43] Prashant Bhushan, Securing Judicial Accountability: Towards an Independent Commission, Economic and Political Weekly, Vol. 42, No. 43 (Oct. 27 - Nov. 2, 2007), pp. 14-17, available at:

<http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdf/40276590>, accessed on: 17-04-2015.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Supra, N. 112.

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54] CUTS Int’l, The National Judicial Appointments Commission Bill, 2014, available at:

<http://www.cuts-ccier.org/pdf/The_National_Judicial_Appointments_Commission_Bill_2014.pdf>, accessed on: 17-04-2015.

[55] Ibid.

[56] Ibid.

[57] Supra, N. 116.

[58] Ibid.

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