Comparative Study of Appointment of Judges in U.S, U.

K and India

1. INTRODUCTION
Judges have, of course, the power, though not the right, to ignore the mandate of a
statute, and render judgment in despite of it. They have the power, though not the right, to
travel beyond the walls of the interstices, the bounds set to judicial innovation by
precedent and custom. None the less, by the abuse of power, they violate the law1
-Benjamin
N.Cardozo
Judiciary enjoys the central place and it has to play pivotal role in any legal system. Judiciary
through one of the organ of government is deemed to be independent of government itself.
Judiciary enjoys better confidence of people and that is reason the independence of judiciary
must be ensured at any cost. There must be independence of judiciary which enable judges to
act without fear and favour.
A judge should not be afraid of anybody how so powerful or he may be. A judge should not
have any personal interest in anybody. Judges should neither favour nor disfavour anybody.
He should act in atmosphere of impartiality and complete independence even from personal
pre-distraction. Justice is to be secured at any cost.
The framers of Indias written Constitution wisely built into it checks and balances in
order bring about a harmonious balance in the powers and responsibilities of the three
branches the Executive, the Legislature and the Judiciary of the Government. They
knew that in a democratic set up, the absence of such a balance, and the distortion and even
perversity resulting there from, would render effective governance impossibility. The people
particularly look up to the judiciary to maintain and preserve the equilibrium by its
interpretation of various laws and decisions on the legality and constitutionality of the
exercise of their functions by various authorities, in cases coming before it. Though under the
Indian Constitution the polity is dual, the Indian judiciary unlike United States of America
which is dual (consisting of federal and state courts) is integrated which can interpret and
adjudicate upon both the Central and State laws. The structure of the judiciary in the country
is pyramidicaling in nature. At the apex, it is the Supreme Court. Most of the States have a
High Court of their own. Some States have a common High Court. The appointment of
1 Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135

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Judges of the Supreme Court and their removal are governed by Article 124 of the
Constitution of India.

Articles 125 to 129 provide for certain incidental matters. The

appointment and removal of the Judges of the High Courts are governed by Article 217.
Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto.
The issue of appointment and removal of judges in India has been in controversy since
long time and has been a matter of debate amongst the legislature, executive and judiciary in
the recent past. The present position as to the process of appointment of judges is the
consequence of the judicial interpretation laid down in Judges cases I, II and III - S. P. Gupta
vs. UOI2, Supreme Court Advocates-on-Record Association vs. UOI3 and Special Reference
No.14 which was a departure from the established existing system of process appointment of
judges which prevailed till the year 1981.Till then the process of appointment of judges were
practically made by the executive in consultation with the judiciary and it played a dominant
role, but doubts were made as to the primacy of the opinion of the executive since then as to
the process of appointment of judges which led to judicial interpretations out of which none
of the interpretations were in consonance with the express constitutional provisions, thereby
keeping the process of appointment of Judges vague and devoid of transparency.
This project work makes the comparative analysis of the process and removal of judges with
its counterpart United States of America as federal nations have certain common features in
their written constitution, independence of judiciary being the most important one and with
the appointment perspective in Unites Kingdom also. The comparative analysis is made with
an objective to analyse the existing system of process of appointment of judges in both
countries and to suggest more transparent and effective process for appointment of judges in
India in the light of the said comparative analysis which ensures just, fair and efficient
judicial process in the administration of justice.

2 AIR 1982 SC 149

3 (1993) 4 SCC 441; AIR (1994) SC 268
4 Special Reference No.1 of 1998,RE (1998) 7 SCC 739

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2. CONSTITUTIONAL PROVISIONS AND JUDICIAL

INTERPRETATIONS ON THE PROCESS OF APPOINTMENT OF
JUDGES IN U.S.A, U.K AND INDIA
2.1 Constitutional Provisions and process of appointment of judges in India
2.1.1. Appointment of Judges to the Supreme Court
Article 124(2): Clause (2) of Article 124 inter alia 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.
Under our constitutional scheme, the President is the constitutional head. In exercise of the
powers vested in him 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. Clause (2) of Article 124 speaks of
consultation, whether it is with the Chief Justice of India, Judges of the Supreme Court or
with the Judges of the High Court. The expression is not concurrence. The Constituent
Assembly debates show that when it was suggested by some of the members that the
expression should be concurrence and not consultation, it was not agreed to. Similarly, the
suggestion to provide for approval of Parliament or its upper House - probably inspired by
the U.S. Constitution was also not agreed to by Dr. Ambedkar5.
2.1.2. Appointment of Judges to High Courts
The procedure for appointment of Judges of the High Courts is slightly different from the one
concerning the appointment of Judges of the Supreme Court. Clause (1) of Article 217 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
5 Constituent Assembly debates Vol.8 p.258

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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. 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). 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 (S.P.Gupta), the Chief Justice of the High Court used to make
the recommendation which was considered by the Governor of the State (Council of
Ministers headed by the Chief Minister) 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, as the case may be.
2.1.3. 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
2.1.4.

large, this was the position till 1981.

Judicial interpretations on the process of appointment of judges in India:
The Turning Point

The beginning and end of judicial reform is the appointment of the right kind of judges, be it
in the Supreme Court, the High Court or the subordinate judiciary. The appointment of
judges is the prime and foremost link in the chain of judicial reform. As Justice Bhagwati
would say, a right appointment would go a long way towards securing the right kind of
judges who would invest the judicial process with significance and meaning, for the deprived
and exploited sections of humanity.
The procedure as laid in the constitutional text, underwent a change after the three
pronouncements of the Supreme Court, which need to be considered for a fuller and more
incisive understanding of the present scenario and its effect on the selection and appointment
of judges.
In SP Guptas case, which we will call the 1st judges case, for facility of reference, the
Supreme Court considered the question of transfer of a judge from one High Court to another
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court, without ascertaining his consent and the non-confirmation of an ad-hoc judge, the
issues being crucial for the cardinal principle of Independence of Judiciary. The decision of
the majority of the seven judges affirmed the power of the executive to decide these issues
and dismissed the petitions. The question of initial appointment of judges was nowhere in
issue, but the majority judgment, holding that the expression consultation used in Art 124
(2) and 217 of the Constitution did not mean concurrence, declared that the Executive
could appoint a judge, even if the Chief Justice had different views in the matter. Justice
Bhagwati, delivering the majority judgment, also held that consultation with the Chief
Justice would mean that there should be a collegiumto advise the Chief Justice. It was,
however, not spelt out as to what should be the composition of the collegium, at this stage. It
was also held that the solitary view of the Chief Justice would not constitute consultation
within the meaning of Articles 217 and 224 (2). Thus, the expression colleguim came to be
used for the first time in paragraph 29 of the judgment and it was a virtual insertion into the
Constitution.
In the year 1991, doubts were expressed about soundness of the S.P. Gupta judgment in
Subhash Sharma vs. Union of India6, by a Bench presided over by Justice Ranganath Misra,
CJ in regard to the interpretation of the word consultation occurring in Articles 217 and 224
(2) of the Constitution and the matter was referred to a larger Bench on two points: The
view that the four learned judges shared in SP Guptas case, in our opinion does not
recognise the special and pivotal position of the Chief Justice of India. The correctness of the
opinion of the majority in S.P. Guptas case7, relating to the status and importance of the
Chief Justice of India and the view that the judge strength is not justiciable, should be
reconsidered by a larger Bench. It was further clarified in that apart from the two questions
which we have indicated, all other aspects dealt with by us are intended to be final by our
present order.
Consequently, a Bench of nine judges was constituted and judgment was pronounced on 610-1993, in what we shall call the 2nd judges case. The judgment runs into 306 pages and
travels far beyond the order of reference. Noted jurist, Late H.M. Seervai, in his celebrated
Constitutional Law of India, has called the judgment null and void for not following the
mandatory provisions of Act 145 (4) & (5) which as per the dictum laid down by Sir Barnes
6 AIR 1991 SC 631
7 Ibid.
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Peacock, CJ enjoins that it is a fundamental principle essential to the due administration of

justice that every judicial act which is done by several judges ought to be completed in the
presence of whole of them. If after discussion and after deliberately weighing the arguments
of each other, the judges cannot agree, then several judgments ought to be delivered in the
open court in the presence of others.
That the judgment was not so pronounced is evident from the lament of Justice M. M.
Punchchi in his dissenting judgment. The same is quoted from 2nd Judges case. This nine
judge bench sat from April 7, 1993 to hear this momentous matter, concluding its hearing on
May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all
after July 12, 1993 on the reopening of the court, if not earlier, would sit together and hold
some meaningful and frank discussion on each and every topic, which has engaged our
attention, striving for a unanimous decision, in this historic matter concerning mainly the
institution of the Chief Justice of India, relatable to this court.
I was indeed overtaken when I received the draft opinion dated June 14, 1993,
authored by my learned brother Justice J.S. Verma for himself and on behalf of my learned
brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha-JJ. The fait
accompli appeared a stark reality, the majority opinion an accomplished fact. The hopes I
entertained of a free and frank discussion vanished. But then came the opinion dated August
24, 1993 of my learned brother Ahmadi J like a pebble of hope hewn out of a mountain of
despair, followed by the opinions of my learned brother Kuldip Singh and Pandian-JJ dated
Sept 7, 1993 and September 9, 1993, respectively. Any review meeting thereafter was not
possible as the views by that time seemed to have been polarized.
It is therefore clear that there was no discussion, no meeting of minds and no consensus
among the nine judges, on 14 June, 1993, when the final draft judgment was
signed/circulated by Justice Verma, who spoke for himself and other colleagues (Yogeshwar
Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha JJ). The judgment therefore plainly is
Per Inqurium.
The 2nd Judges case declared that the opinion given by the Chief Justice in the
consultation process has to be formed taking into account the views of the two senior most
judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the
views of the senior most judge of the Supreme Court, whose opinion is likely to be
significant in adjudging the suitability of the candidate by reason of the fact that he has come
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from the same High Court or otherwise. Article 124 (2) is an indicator that ascertainment of
the views of some other judges of the Supreme Court is requisite. The object underlying 124
(2) is achieved in this manner as the Chief Justice of India consults them for the formation of
his opinion.
In matters relating to appointments in the High Courts, the Chief Justice of India is
expected to take into account the views of his colleagues in the Supreme Court, which are
likely to be conversant with the affairs of the concerned High Court. The Chief Justice may
also ascertain one or more senior judges of that High Court, whose opinion according to the
Chief Justice of India is likely to be significant in the formation of his opinion.The opinion
of the Chief Justice of High Court must be formed after ascertaining the views of at least the
two senior most judges of the High Court.
This procedure continued till the President of India, Rashtrapati K.R. Narayanan had doubts
and required clarification and light from the Supreme Court in regard to the appointment
procedure, and that is how the 3rd Judges case, Special Reference No. 1 of 1998, came to
be made under Article 143 of the Constitution. The President referred 9 questions, which are
not being repeated for the sake the brevity.
A Bench of 9 judges was again constituted, headed by Justice S.P. Bharucha. Normally, an
advisory opinion under Article 143 does not have to be binding, but the Attorney General
made a statement before the Court that government would abide by the opinion of the Court.
The 9 judge Bench consisting of S.P. Bharucha, M.K. Muhkerjee, S.B. Majumdar, Sujata V.
Manohar, G.T. Nanavati, S Saghin Ahmad, K Venkataswami, B.N. Kinful and G.B. PatnaikJJ answered the reference unanimously, in paragraph 44 of the reference.
The Chief Justice of India must make a recommendation to appoint a judge of the Supreme
Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the
four senior most puisne judges of the Supreme Court. In so far as an appointment to the High
Court is concerned, the recommendation must be made in consultation with the two senior
most -puisne judges of the Supreme Court. The court further held that the requirement of
consultation by the Chief Justice of India with his colleagues, who are likely to be
conversant with the affairs of the High Court concerned, does not refer only to those judges
who have that High Court as a parent High Court. It does not exclude judges who have
occupied the office of a judge or Chief Justice of that High Court on transfer.

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The court also clarified that the views of the other judges consulted should be in writing and
should be conveyed to the Government of India by the Chief Justice of India along with his
views...
Today, we are back to square one because there is a hue and cry that the consultative
procedure has become not only cumbersome, but well nigh impossible. The Chief Justice of
a High Court is, by the policy of the government, a judge from outside the state who has
little information and knowledge in regard the legal practitioners in the state. In many a state,
seniormost judges constituting the collegium are from outside, with the result that
appointments suffer for want of adequate information. It maybe noted that broadly there are
two areas of enquiry. One is the area of legal acumen of the candidate to adjudge his/her
suitability and the other is antecedents. The Chief Justice of India and other judges of the
Supreme Court and High Court can only judge legal acumen. They have no access to the
antecedents of a candidate, for which the Executive is the best judge.
It is also to be argued that the collegium has now to consist of four (instead of two) senior
most judges of the court in the appointment of a High Court judge. The Supreme Court
judge, acquainted with the particular High Court is also to be consulted, raising the number
to six. The increased number of consultees has made the consultation process cumbersome
and delays in filling up vacancies are bound to occur. Every communication has to be in
writing and the views of the consultees are to be communicated to the government.
There is no indication as to what happens if there is no consensus among the consultees or if
the majority disagrees with the Chief Justice of India. S.P. Guptas case has already laid
down that the entire correspondence between the various authorities concerned is open to
public scrutiny (since the entire record was summarised and made public in that case).
Justice Verma who wrote the lead judgement in the 2nd Judges case was asked by V.
Venkatesan of Frontline dated 10.10.08, My 1993 judgement, 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. My judgement says the
appointment process of High Court and Supreme Court Judges is basically a joint or
participatory exercise between the executive and the judiciary, both taking part in it. Broadly,
there are two distinct areas. One is the area of legal acumen of the candidates to adjudge their
suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of
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India and his colleagues or, in the case of the High Courts, the Chief Justice of the High
Court and his colleagues (who) are the best persons to adjudge the legal acumen. Their voice
should be predominant. So far as the antecedents are concerned, the executive is better placed
than the judiciary to know the antecedents of candidates. Therefore, my judgement said that
in the area of legal acumen the judiciarys opinion should be dominant and in the area of
antecedents the executives opinion should be dominant. Together, the two should function to
find out the most suitable (candidates) available for appointment.
The views of the government are reflected in the newspaper report (Hindustan Times) of 19
October, 2008 and I quote the relevant extract: The government has accepted a
parliamentary panels recommendation to scrap the present procedure for appointments and
transfers of Supreme Court and High Court judgesThe Law Ministry has agreed to review
the 15-year-old system after the Parliamentary Standing Committee on Law & Justice
recommended doing away with the committee of judges (collegium). Presently, the
collegium decides the appointments and transfers of judge.

The question is, from here where do we go? Do we restore the 1982 judgment, which was the
starting point of the collegium or do we accept the primacy of the Chief Justice and the power
of the executive for appointment of judges, which practice has prevailed since the inception
of the Constitution? These are questions of vital importance, which will have to be settled by
the Supreme Court by reviewing the three judgments, which have held the field since 1982.
Alternatively, the government can amend the Constitution. If the amendment is challenged,
the entire matter will be opened before the Court.
2.1.5.

The Controversy

While the method of selection (appointment by Government being a mere formality) to

subordinate judiciary has not evoked any controversy, the method of appointment to and
more particularly the actual manner in which appointments were made to the High Courts and
the Supreme Court has been a subject matter of good amount of controversy, whether before
the decision in S.P. Gupta or thereafter and even after the 1993 decision of the Supreme Court
in Supreme Court Advocates-on-Record Association. While the decision in the S.P. Gupta
was criticized for upsetting the existing situation by vesting the power of appointment in the
executive and by diminishing the importance of the Chief Justice of India and the judiciary,

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the 1993 decision in SCAORA is criticized for precisely the opposite reasons. It is said by
the critics of the 1993 decision that in a democracy, accountability is an important
consideration and the authority or authorities making such appointments should be
accountable to the people. A distinction is made between appointment and functioning.
While in the matter of functioning, the executive can have no say, it is said, the executive
must be necessarily involved in the process of appointment. The argument is that someone
must be responsible for the appointment made and since Chief Justice of India or his
colleagues are not accountable to the people, the concentration of power of appointment in
them is undemocratic.

The argument further is that

the executive is accountable to the

Legislature, which in truth represents the will of the people the consumers of justice - and
that involvement of Executive is the only way of infusing the element of democracy and
accountability in the process relating to the appointment of judges of the High Courts and
Supreme Court. The contrary argument in support of the existing method (ordained by the
decisions of the Supreme Court in 1993 and 1998 aforementioned) is that in Indian conditions
and culture, entrusting this power to, or involvement of the Executive in the appointment
process is bound to prove detrimental to the independence and integrity of the judiciary, as
the experience during the years 1973 to 1977 and again during the period 1982 to 1993
(period during which S.P. Gupta held the field) shows. The suppression, arbitrary and
motivated transfer of Judges of High Court, the manner in which additional Judges in High
Courts were dealt with (either by extensions for short periods or by not confirming them), the
several attempts at muzzling the judiciary during the period 1973 to 1977 (including the
supersession of senor-most judges of the Supreme Court in the matter of appointment of
Chief Justice of India) and 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. It is said that
democratic culture has not yet taken root in our country and that feudal tendencies are very
much part of our thought and action. The attempt to control every institution, personalized
rule, refusal to see the merit of diffusion of power of governance (a basic feature of
democracy) are propensities which are not conducive to an independent and efficient
judiciary. If the vesting of the power of selection of subordinate judiciary in the High Courts
exclusively is not bad, how does the selection of Judges of High Courts and the Supreme
Court become bad goes the argument. It is further pointed out by the proponents of this
point of view that today executive is the biggest litigant and the power vested in the Supreme
Court and the High Courts by Articles 32 and 226 respectively is intended to act as a check
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upon the executive and that today the major portion of the work in every High Court and the
Supreme Court is under these provisions; if so vesting the power of appointment, whether
wholly or partially, in the executive is bound to prove prejudicial to this constitutional
perspective. The U.K. example, it is said, is not relevant to this country at the present stage
of development and in so far as U.S.A. is concerned, it cannot and ought not to be emulated
in this country, more particularly after the recent episode (the un-edifying manner in which
the judiciary in that country acted in the Bush-Gore election controversy). Incidentally, the
American experience reinforces the inadvisability of executives role in the matter of
appointment. However, under the Indian Constitution the said power of appointment of
judges neither resides exclusively in the Judiciary, as because the Indian Constitution has
provided for the participatory and consultative method of appointment process by way of
consultation with the judiciary giving primacy to neither of the wings. But the said balance as
intended is not followed in the present process of appointment of judges which is a matter of
serious concern as the guardian of the constitution is itself acting beyond what the
constitution has expressly provided thereby bringing the process of appointment of judges
justiciable and subject to judicial review.
2.1.6. Recent Developments
The National Judicial Appointments Commission (NJAC) was proposed as a committee that
would appoint to the higher judiciary in India. The NJAC replaced the collegium system for
the appointment of judges. The NJAC Bill and the Constitutional Amendment Bill, was
ratified by 16 of the state legislatures in India, and the President gave his assent on 31
December 2014. The NJAC Act became effective from April 13, 2015.
But Chief Justice of India HL Dattu refused to take part in the NJAC. The NJAC enjoyed
support from the Supreme Court Bar Association and many legal luminaries but was also
challenged by some lawyer associations and groups before the Supreme Court of India
through Writ Petitions. A three-judge bench of the Supreme Court referred the matter to a
Constitution Bench that heard different arguments for over a month. Finally, on October 16, a
five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and
the NJAC Act 2014 "unconstitutional and void".

The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex officio),
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two other senior judges of the Supreme Court, The Union Minister of Law and Justice, exofficio and two eminent persons, to be appointed by the Chief Justice of India, Prime
Minister of India, and Leader of Opposition in the Lok Sabha. One of the them was envisaged
to be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a
woman. These two eminent person positions had a three-year fixed term. The Supreme Court
had strong reservation on the presence of Union law minister as one of the six members of
the commission as it would violate the judicial independence in appointing judges and termed
judicial independence as a basic structure of the constitution. The Supreme Court has also
give emphasis that how the Non-Judicial member can appoint the judicial body.
Hence, the NJAC was declared as unconstitutional in recent week by the Supreme Court.

2.2 Constitutional Provisions and Process of Appointment in U.S.A

2.2.1. Background and the Structure of the Judicial System (Federal and State Courts)
The judicial system in the United States is known as dual court system, which means both
state and federal governments have their own set of courts. Thus, there are 51 separate sets of
courts in the United States, one for each state and one for the federal government. The project
will discuss the process of appointment of judges of federal courts only.
The appointment of a Supreme Court Justice is an event of major significance in American
politics. Each appointment is important because of the enormous judicial power the Supreme
Court exercises as the highest appellate court in the federal judiciary. Appointments are
usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or
never at all, during a particular Presidents years in office. Under the Constitution, Justices on
the Supreme Court receive lifetime appointments. Such job security in the government has
been conferred solely on judges and, by constitutional design, helps insure the Courts
independence from the President and Congress. The procedure for appointing a Justice is
provided for by the Constitution in only a few words. The Appointments Clause 8 states that
the President shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Judges of the Supreme Court. The process of appointing Justices has undergone
changes over two centuries, but its most basic feature the sharing of power between the
President and Senate has remained unchanged: To receive lifetime appointment to the
Court, a candidate must first be nominated by the President and then confirmed by the
8 Article II, Section 2, clause 2
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Senate. Although not mentioned in the Constitution, an important role is played midway in
the process (after the President selects, but before the Senate considers) by the Senate
Judiciary Committee. On rare occasions, Presidents also have made Court appointments
without the Senates consent, when the Senate was in recess. Such recess appointments,
however, were temporary, with their terms expiring at the end of the Senates next session.
The last recess appointments to the Court, made in the 1950s, were controversial because
they bypassed the Senate and its advice and consent role. The appointment of a Justice
might or might not proceed smoothly. From the first appointments in 1789, the Senate has
confirmed 122 out of 158 Court nominations. Of the 36 unsuccessful nominations, 11 were
rejected in Senate roll-call votes, while nearly all of the rest, in the face of committee or
Senate opposition to the nominee or the President, were withdrawn by the President or were
postponed, tabled, or never voted on by the Senate. Over more than two centuries, a recurring
theme in the Supreme Court appointment process has been the assumed need for excellence
in a nominee. However, politics also has played an important role in Supreme Court
appointments. The political nature of the appointment process becomes especially apparent
when a President submits a nominee with controversial views, there are sharp partisan or
ideological differences between the President and the Senate, or the outcome of important
constitutional issues before the Court is seen to be at stake.
2.2.2. Methods of Appointment
Section 2, Article II, the United States Constitution states: "[The President] shall nominate,
and by and with the Advice and Consent of the Senate, shall appointJudges of the Supreme
Court, and all other Officers of the United States
Justices of the Supreme Court, judges of the Circuit Courts of Appeals and the District Courts
[i.e. included under "all other officers of the U.S." referred to in the Constitution] all 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.

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2.2.3. Summary of the process of Appointment of Judges in United States of America

1. Section 2, Article II, the United States Constitution states: "[The President] shall
nominate, and by and with the Advice and Consent of the Senate, shall appointJudges of
the Supreme Court, and all other Officers of the United States All federal judges are
appointed by the President of the United States with the advice and consent of the Senate.
2. The process of appointment of a federal judge starts from the occurrence of a judicial
vacancy. The Department of Justice with the White House staff recommends judicial
nominations to the President. If the President approves, the nomination is signed and sent to
the Senate.
3. Judicial nominations are referred to the Senate Judiciary Committee by the Senate.
Nominees will be investigated, testified and the nomination voted in the Committee. As the
majority party in the Senate controls a majority of the committee seats, the voting results on
the Committee are generally representative of the voting preference in the full Senate.
4. Confirmation of judicial appointments requires a majority vote of the Senate. All
nominations must be acted on in a session or they die at the end of the session. If a
nomination is not acted upon, they must again be made to the Senate by the President. When
Senate gives its advice and consent, the President signs the judicial commission which
officially appoints the individual.
5. The influence of Senators in the stage of selecting nominees lies in the Senators' ability to
recommend potential nominees. Senators will be asked to recommend potential nominees for
a district court vacancy in their home state. In the cases of the Supreme Court or circuit courts
nominees, the President may need to take Senators' recommendations into account for
political reasons.

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2.2.4. Judicial Interpretation of Appointment of Judges in America- Its Turning Point

In the famous case of Marbury V. Madison9
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was
designated as a justice of the peace in the District of Columbia. Marbury and several others
were appointed to government posts created by Congress in the last days of John Adams's
presidency, but these last-minute appointments were never fully finalized. The disgruntled
appointees filed the suit directly in the Supreme Court under section 13 of the 1789 Judiciary
Act, seeking a writ of Mandamus to compel Madison to deliver his commission.
Question Raised was- Is Marbury entitled to his appointment?
Chief Justice John Marshall concluded thatYes, justice Marshall concluded that Marburys appointment was complete upon his
authenticated signing by the President.
Two recent Supreme Court cases offer a modicum of guidance on the distinction between
principal and inferior officers. In Morrison v. Olson10, the Court determined that an
independent counsel was an inferior officer because her duties were limited, her performance
of them was cabined by the policies of the Department of Justice, her jurisdiction was
confined to particular matters, her tenure was restricted to the time it took to complete her
assignment, and she held office subject to removal by the Attorney General. In so holding, the
Court eschewed a precise formula for determining whether an officer is "inferior," declaring
that it had no need to "decide exactly where the line falls between principal officers and
inferior officers."

In another case of US Supreme Court Jon E. Edmond, v. United States11

9 5 U.S. 137 (1803); Constitutional Law book by Calvin R. Massey.

10 487 U.S. 654 (1988)for more details http://supreme.justia.com/us/487/654/case.html accessed on
September 19 2008
11 520 U.S. 651, 659-60 (1997) for Details http://www.law.cornell.edu/supct/html/96-262.ZO.html
accessed on 19 September 2008;
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The Court defined the term "inferior officer" as encompassing those "whose work is directed
and supervised at some level by others who were appointed by Presidential nomination with
the advice and consent of the Senate 12". The Court did not overrule Morrison, however, but
cited it as precedent.

In Mistretta v. United States13, in this instance, Congress chose to place the appointing power
vis--vis interim United States Attorneys partially in the judiciary. If authorizing judges to
make such appointments is incongruous with the appointers' judicial duties or unduly
interferes with the proper functioning of the Executive Branch, any appointments so made
would be null and void. "While our Constitution mandates that 'each of the three general
departments of government must remain entirely free from the control or coercive influence,
direct or indirect, of either of the others,' the Framers did not require and indeed rejected the
notion that the three Branches must be entirely separate and distinct14.
In an another interesting case, United States of America v. Fermin Hilario15, Fermin Hilario
moved to dismiss an indictment brought against him, claiming that the protracted tenure of a
court-appointed interim United States Attorney contravened applicable federal statutes,
violated the Appointments Clause, offended the separation-of-powers principle and, in the
end, rendered the indictment a nullity.
As a general rule, United States Attorneys are nominated by the President and, if confirmed
by the Senate, serve four-year terms. But Congress selected a different method for interim
appointees. So when the United States Attorney for the District of Puerto Rico resigned in
May of 1993, Attorney General Janet Reno appointed an Assistant United States Attorney
(AUSA), Charles Fitzwilliams, to fill the resulting vacancy. Because the President failed to
12 520 U.S. at p. 663
13 488 U.S. 361, 381-82 (1989)
14 Mistretta, 488 U.S. at 380
15 For more details www.ca1.uscourts.gov/pdf.opinions/00-1406-01A.pdf last accessed on 16.10.2015

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name a replacement within 120 days, Fitzwilliams's appointment lapsed and the position once
again became vacant. On September 9, 1993, the judges of the United States District Court
for the District of Puerto Rico responded to the exigency and appointed a career Justice
Department lawyer, Guillermo Gil, as interim United States Attorney. The question which
was raised by such appointment wasa)Whether the appointment offends the separation-of powers principle?
The Court concluded Should the stand-in remain so long in office that he became
indistinguishable from the latter, an argument could be made that his continued service
required nomination by the President and confirmation by the Senate and that Gil's
appointment and continued service as interim United States Attorney for the District of
Puerto Rico comply with the Appointments Clause 16, and the doctrine of separated powers.
Cons consequently, the indictment against Hilario was duly authorized. It should not have
been dismissed.

2.3 Procedure for Appointing a Judges of the United Kingdom

In Great Britain, the Judges are appointed by the Crown, which prior to 2005 meant the
Executive of the day, without any restriction. The power of the Executive was curtailed in
March 2005, by the Constitutional Reform Act, 2005 which established a Judicial
Appointments Commission for England and Wales and Judicial Appointments and conduct
Ombudsman17.
The procedure for appointing a Justice of the Supreme Court of the United Kingdom is
governed by Sections 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005, as
amended by the Crime and Courts Act 2013.
Section 25 of the 2005 Act sets out the statutory qualifications for appointment. But Section
25 has been amended by Sections 50-52 of the Tribunals and Enforcement Act 2007 so that
the qualifications are now:

16 28 U.S.C. 546(d),
17 https://www.supremecourt.uk/about/appointments-of-justices.html accesed on 17/10/2015
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Applicants must have held high judicial office for at least two years. ('High judicial
office' is defined to include High Court Judges of England and Wales, and of
Northern Ireland; Court of Appeal Judges of England and Wales, and of Northern
Ireland; and Judges of the Court of Session).
Alternatively, applicants must satisfy the judicial-appointment eligibility condition
on a 15-year basis, or have been a qualifying practitioner for at least 15 years.
A person satisfies the judicial-appointment eligibility condition on a 15-year basis if
he has been a solicitor of the senior courts of England and Wales, or barrister in
England and Wales, for at least 15 years; and has been gaining experience in law
during the post-qualification period.
A person is a qualifying practitioner if he is an advocate in Scotland or a solicitor
entitled to appear in the Court of Session and the High Court of Justiciary; or he is
a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of
Northern Ireland.
The meaning of "gaining experience in law" is set out in section 52(2) to (5) of the
Tribunals and Enforcement Act 2007 and relates to a period engaged in law related
activities."
It is the responsibility of the Lord Chancellor to convene a selection commission: he usually
does this by way of a letter to the President of the Court who chairs the selection commission.
Under changes introduced through the Crime and Courts Act 2013 the Deputy President is no
longer a member of a selection commission. Instead the President has to nominate a senior
judge from anywhere in the United Kingdom, but that judge cannot be a Justice of the
Supreme Court. In addition there is a member of each of the Judicial Appointments
Commission for England and Wales, the Judicial Appointments Board in Scotland, and the
Judicial Appointments Commission in Northern Ireland. At least one of those representatives
has to be a lay person. Nominations are made by the Chairman of the relevant
Commission/Board.
JAC consisted of following members are as follows:

5 must be judicial members (of which one must be a senior tribunal judge)

2 must be professional members

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5 must be lay members

1 must be a tribunal judge

1 must be a non-legally qualified judicial member

Applications are limited and scrutinized by JAC. Then applications are interview and list is
finalized. The list prepared on the consideration like intellectual capacity, Personal Qualities,
Eligibility to understand, ability to deal fairly and authoritatively, communication skill and
efficiency. It is forwarded to Lord CJ and other suitably qualified person for statutory
consultation. Then lastly, police verification is done for outstanding good-character.
Recommendation is forwarded to Lord Chancellor. Only that name recommended as per
vacancy. Lord Chancellor can reject the recommendation but he has to give reasons for doing
and he cannot select another candidate as a replacement.
It shows that the appointment of lower rank judiciary and up to High Court judges is very
transparent. Introduction of JAC refers to tradition of impartiality and neutrality. It has been
also explained by Jhon Vell in his book Policy Argument in Judicial Decision He Says
impartiality involves the judges listening to each side with equal attention and coming to a
decision on agreement irrespective of his personal view about the litigants. As to neutrality
Jhon Vell points out that neutrality requires that whatever his personal believes. The Judges
should seek to give effect to common values of a community rather than any sectional system
of values to which he may adhere.

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3. Comparative Analysis of Appointment of Judges in USA, UK and

India
3.1.

COMPARISON

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 with the
consultation with judiciary, whereas in U.S the appointment is made with parliamentary
approval. Both the nation follows 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. Since, the process as to
appointment of judges has already been discussed in detail; this chapter would only focus on
merits and demerits of the methods of appointment of judges in India and U.S.A.
3.2.

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 pre-eminent 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
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kind of coalition building behaviour 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.
3.3.

Consultation with Judiciary (Method of appointment in India) Art.124

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 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.
Generally, under this method of appointment executive government appoints the judges in
consultation with the senior judiciary and legal profession (i.e executive primacy followed till
1993 Judgment which nullified the role of executive in the appointment process). 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
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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.
The National Judicial Appointments Commission (NJAC) was proposed as a committee that
would appoint to the higher judiciary in India. The NJAC replaced the collegium system for
the appointment of judges. The NJAC Bill and the Constitutional Amendment Bill, was
ratified by 16 of the state legislatures in India, and the President gave his assent on 31
December 2014. The NJAC Act became effective from April 13, 2015.
But Chief Justice of India HL Dattu refused to take part in the NJAC. The NJAC enjoyed
support from the Supreme Court Bar Association and many legal luminaries but was also
challenged by some lawyer associations and groups before the Supreme Court of India
through Writ Petitions. A three-judge bench of the Supreme Court referred the matter to a
Constitution Bench that heard different arguments for over a month. Finally, on October 16, a
five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and
the NJAC Act 2014 "unconstitutional and void".
The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex officio),
two other senior judges of the Supreme Court, The Union Minister of Law and Justice, exofficio and two eminent persons, to be appointed by the Chief Justice of India, Prime
Minister of India, and Leader of Opposition in the Lok Sabha. One of the them was envisaged
to be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a
woman. These two eminent person positions had a three-year fixed term. The Supreme Court
had strong reservation on the presence of Union law minister as one of the six members of
the commission as it would violate the judicial independence in appointing judges and termed
judicial independence as a basic structure of the constitution. The Supreme Court has also
give emphasis that how the Non-Judicial member can appoint the judicial body.
Hence, the NJAC was declared as unconstitutional in recent week by the Supreme Court. And
collegium system revived back once again. There is still matter debatable whether how long
this coollegium system is constitutional. It needs more emphasis the construction and the
interpretation of Article 124 of the Constitution of India.

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Its pivotal to compare these two countries with U.K in process of the appointment Judges
which as Jhon Vell also puts ornament that The British judges have the tradition and
neutrality. In U.K judges up-to high courts are appointed by the government on the advice of
Lord Chancellor. Lord Chancellor has to advice on the basis of JAC. This reform changes
past scenario preserving the essence of fair justice and in fact it is evolving positive reflection
can be adopted in India also.

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4. Conclusion
It is pertinent to mention herein that the concept of independence of judiciary is borrowed
from the U.S Constitution, but during the process of appointment of judges in U.S it is seen
that judiciary is completely excluded from the process of appointment and the concept of
independence of judiciary has never been associated with the process of appointment of
judges. The Second and Third Judges cases are a naked usurpation of the legislative function
under the thin guise of interpretation. Such an interpretation endangers public confidence in
the political impartiality of the judiciary which is essential to the continuance of the rule of
law. The delicate balance of judicial independence and judicial accountability as
formulated by the constituent makers under Article 124 and 217 of the Indian Constitution
has been disturbed by the judicial interpretation and subject to judicial review. It is highly
unfortunate that, the Supreme Court instead of bringing more transparency and clarity in the
process of appointment of judges by being within the constitutional framework has surpassed
the written text of the constitution. The Constituent assembly clearly rejected the term
concurrence and instead used consultation thereby giving primacy neither to the executive
nor the judiciary and intended for consensual decision amongst the executive and the
judiciary for the appointment of judges. The judges hopelessly misconceived the very nature
of judicial function. It is also unfortunate that such a violation is still continuing and is been
facilitated by a fractured polity, a divided bar, and weak legal academia.
Concluding, The warning be you ever so high, the law is above you applies to judges as
well as to politicians in power. As Aristotle said, for a judge to seek to be wiser than the law
is to the very thing which is, by wise laws, forbidden.

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BIBILIOGRAPHY
BOOKS

H.M.Seervai, Constitutional Law of India, Fourth ed. vol.iii, chapter xxv, p.2613,

Universal Law Publishing Co.Pvt.Ltd.

A.G.Noorani, Constitutional Questions and Citizens Rights, 2006, Oxford Publication.
Benzamin.N.Cardozo, The Nature of Judicial Process, Yale University Press., 1921,

pp129 and 135.

Dr. Ranbir Singh & Dr. A Laxshminath, Constitutional Law, LexisNexis Butterworths

Student Series.
The History, Philosophy and Structure of the American Constitution, second edition,

LexisNexis Publications.
Arvind .P.Dattar, Commentary on the Constitution of India, 2nd Edition, 2007, vol-I,

Wadhwa and Nagpur Publication.

M.V.Pylee, Constitutions of the World, 3rd Edition, vol-I, Universal Law Publications.
V. Bhagwan, World Constitution 6th revised edition, Sterling Publishers Private Ltd.
B.Shiva Rao, The Framing of the Indian Constitution, edited by

Dr.Subhash.C.Kashyap.
Norman Redlich,John Atlanasio, and Joel.K.Goldstein, Constitutional Law, Second

Edition,LexisNexis Publication.
Craig R.Ducet, Constitutional Interpretation, Eight Edition, Thomson and West
Publications.

ARTICLES

Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10.

Judicial Oversight or Overreach: The Role of the Judiciary in Modern India.

The Process of Appointment of Appointment of Judges in some foreign Countries: The

United States by Mr. Cheung Wai lam.

Federal Judicial Appointments- Gavel to Gavel.

The Appointing Power of the Executive by Alexander Hamilton Federalist No. 76.

The Appointing Power Continued and Other Powers of the Executive Considered
Federalist No. 77.

The Judiciary Department by Alexander Hamilton Federalist No. 78.

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