NMIMS SCHOOL OF LAW

FINAL PROJECT SUBMISSION ON CONSTITUTIONAL LAW - 2

TITLE A case study on judicial decision of SP Gupta v.

Union of India

SUBMITTED TO: SUBMITTED BY:

PROF. NADISHA VAZIRANI SAJAL SINGHAI (A054)

SY B.B.A.LL.B (TRIM 4)

1|Page
INDEX

CHAPTER-1 INTRODUCTION...4

CHAPTER 2 RESEARCH METHODOLOGY6

CHAPTER-3 CASE STUDY OF SP GUPTA V. UNION OF

INDIA .. 8

CHAPTER -4 JUDICIAL ANALYSIS......20

CHAPTER -5 LEGAL ANALYSIS..... 30

CHAPTER -6 CONCLUSION .... 34

CHAPTER -7 SUGGESTION...36

BIBLIOGRAPHY.......37

2|Page
ABBREVATION

Justice J.
Article Art.
National Judicial Appointment Commission NJAC
Supreme Court - SC

3|Page
INTRODUCTION
J. can become fearless and free only if institutional immunity and autonomy are
guaranteed.

The purpose of this project is to analyze the case of SP Gupta v. Union of India. The case
involves many concept of constitution of India like independence of judiciary, appointment and
transfer of judges etc. So first understand the concept of judiciary and independence of judiciary:

The Indian Judiciary administers a common law system of legal jurisdiction, in which customs,
precedents and legislation, all codify the law of the land. It has in part, inherited the legacy of the
legal system established by the then colonial powers and the princely states since the mid-19th
century, and has partly retained characteristics of practices from the ancient and medieval times.

There are various levels of judiciary in India different types of courts, each with varying
powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy
of importance, in line with the order of the courts in which they sit, with the SC of India at the
top, followed by High Courts of respective states with district judges sitting in District Courts
and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear
criminal and civil cases, including disputes between individuals and the government. The
judiciary is independent of the executive and legislative branches of government according to the
Constitution of India.1

An important feature of the Indian Judicial system is that our system has been designed on the
pattern of the adversarial system. This is to be expected since courts based on the common law
system tend to follow the adversarial system of conducting proceedings instead of the
inquisitorial system. In an adversarial system, there are two sides in every case and each side
presents its arguments to a neutral judge who would then give an order or a judgment based upon
the merits of the case.

Independence of Judiciary constitutes a basic feature:

Justice Ruma Pal, former Judge Supreme Court in the fifth V.M. Tarkunde Memorial
Lecture said I will conclude with the most important facet of judicial independence.
Judicial independence cannot exist without accountability. At present the only
disciplinary power over judges is vested in Parliament which provides for the extreme
punishment of removal for acts of proven misbehaviour by or incapacity of a judge.
Disciplinary methods include the Chief Justice advising a dishonest judge to resign or

1
http://www.silf.org.in/16/indian-judicial-system.htm

4|Page
 recommending a judges name to the Chief Justice of India for transfer to another High
Court.2

India has adopted a federal constitution with distribution of powers between center and the
states. An independent judiciary is the essence of the federal character of the constitution. It is
imperative that the judiciary be impartial and independent of the legislative and executive
branches of the country to ensure the functioning of the government in accordance with the
constitution. The SC, being the guardian of the constitution, ensures that the fundamental rights
of the citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the
constitution has provided several measures that ensure the independence of the judiciary.
However, owing to the nature of Indian politics, there have been several attempts by the
government to extend its supremacy over the judiciary and to reduce its independence.

After understanding the concept of judiciary and independence of judiciary lets talk about the
cases which was follow and overrule the SP Gupta case i.e three judges case.

The current system of appointments has evolved from SC interpretations of the relevant
constitutional provisions, in the three Judges cases. The brief of the three judge case:

First Judges Case (1982) SP Gupta v. Union of India The Constitution requires consultation
and not concurrence of the CJI in making appointments. The executive should have primacy
since it is accountable to the people. 3

Second Judges case (1994) SC Advocates-on-Record Association and another Overruled the
above judgment. Held that there should be a collegium comprising the CJI and two senior most
SC judges,to make recommendations for SC and HIGH COURT appointments. In the event of
conflicting opinions between executive and judiciary, the judiciary would have primacy. 4

Third Judges case (1999) Reaffirmed the collegium process. The collegium would consist of the
CJI and four senior most judges for making SC appointments, and CJI and two senior most SC
judges for HIGH COURT appointments.5

In this chapter the researcher give the brief about the concept of judiciary, independence of
judiciary and the 3 judges cases which was come after the SP Gupta case.

2
http://thewire.in/13430/forget-njac-or-collegium-the-judiciary-is-sinking-under-the-burden-of-pending-cases/
3
S.P. Gupta vs. Union of India, AIR 1982, SC 149
4
S.C. Advocates on Record Association vs.Union of India, AIR 1994 SC 268
5
In re: Special Reference, AIR 1999 SC 1

5|Page
CHAPTER -2

RESEARCH METHODOLOGY

STATEMENT OF PROBLEM: The best system of governance is one in which there is balance
of powers. The major problem in appointment and transfer of judges faced is that the Chief
Justice of India has more power than the President. Therefore, there is no balance of power.

OBJECTIVE: Detailed analysis of transfer of judges procedure in light of SP Gupta v. union of

India case.

To understand different provisions of Article 217, Article 222, Article 223, Article 224 of the
Indian constitution which talk about transfer of judge from one High court to another,
appointment of acting chief justice, appointment of additional and acting and analysis of the
same.

RESEARCH METHODOLOGY:

In the Encyclopedia of Social Sciences, D. Slesinger and M. Stephension (1930) defined research
as the manipulation of things, concepts or symbols for the purpose of generalizing to extend,
correct or verify knowledge, whether that knowledge aids in the construction of theory or in the
practice of an art.

Research methodology is the term used to indicate how the research has been concluded on the
basis of the collection of data. There are two kinds of data that is primary data and secondary
data. Primary data is the information that the researcher collects himself for the first time by
methods such as interviews, sample surveys, etc. Secondary data is the information which has
been collected by some other person beforehand and is being used by the researcher to suit his
purpose. E.g.: The data collected by the government through a census may be used by other
organizations, companies and agencies.6

For this project, the researcher has not collected any primary data. He has relied on the works of
others on record. Therefore, the research is secondary.

REVIEW OF LITERATURE:

PRS legislative research: NJAC and Collegium system

The first part article include analysis of the constitution (120th amendment) Bill, 2013 and
judicial appointment commission bill 2013.

6
S.K. Verma, Legal research and methodology, Indian law institute, 2nd edition.

6|Page
The second part of this article includes key issue and analysis of NJAC and collegium system
and observation of various bodies on the current method of appointment and highlight of three
judge cases.

The judges case: Issue involved; PUCL bulletin, 1981

The author of the article analyse the article 124, 216, 222 according to three judges case, further
he analyse the issue in the case and give suggestion for the same.

RESEARCH QUESTIONS:

Is independence of judiciary qualified in the scheme of Indian constitution?

What is the scope of the word consultation in case of the appointment and transfer of
judges and additional judges?

HYPOTHESIS: Consultation means concurrence upon a shared opinion

7|Page
CHAPTER -3
CASE STUDY OF SP GUPTA V. UNION OF INDIA

FACTS OF THE CASE7:

The foregoing case dealt with a number of petitions involving important constitutional
questions regarding the appointment and transfer of judges and the independence of
Judiciary.

The fact that three additional Judges of Delhi High Court, namely, O.N. Vohra, S.N.
Kumar and S.B. Wad who had originally been appointed as Additional Judges for a
period of two years with effect from 7th March 1979, and whose term was expiring on
the midnight of 6th March 1981 were further appointed as additional Judges for a period
of three months only from 7th March 1981 and these short-term appointments were,
according to the petitioner, unjustified by the terms of Art. 224 and were in any event
subversive of the independence of the judiciary.

The writ petition was file by A. Rajappa an advocate practicing in the High Court of
Madras. In this writ petition the petitioner challenged the constitutional validity of the
orders of transfer passed by the President on 19th Jan., 1981 transferring Mr. J. M.M.
Ismail, Chief J. of Madras High Court as the Chief J. of Kerala High Court and Mr. J.
K.B.N. Singh, Chief J. of Patna High Court as the Chief J. of Madras High Court.

Another writ petition filed by V.M. Tarkunde in the High Court of Delhi and Iqbal
Chagla and others in the High Court of Bombay challenged a circular letter dated 18th
March, 1981, addressed by Shri Shiv Shankar, the Law Minister of the Government of
India, to the Governor of Punjab and the Chief Ministers of the other States and writ
petition also raised the issue of assailed the practice followed by the Central Govt. in
appointing additional Judges in various High Courts.

The relevant portion of this case concerns the disclosure of certain correspondence
between the Law Minister, Chief J. of Delhi and Chief J. of India, and the relevant notes
made by them in regard to the non-appointment of a judge for a further term and the
transfer of a High Court Judge. Petitioners, and one of the judges in question, sought the
disclosure of these documents as well as validity of the transfer, the non-extension and
the circular were all challenged in court.
7
Supra 3

8|Page
ISSUES INVOLVED IN THE CASE:8

1) Locus standi of lawyers to file writ petitions by way of public interest litigation.
2) Independence of judiciary
3) Nature of power to appoint/transfer. High Court judges and procedure to be followed
consultation with constitutional functionaries; consent of concerned judges etc.
4) Validity of transfer of judges from one High Court to another.

DECISION:
In one sense one might say that the case decided nothing: if one asks whether the petitioners got
what they asked for, the answer is "No"-the court made no order since there was a majority
against granting any one of the many things sought in the writ petitions. To pick out the major
objectives of the litigants:

(1) Relief sought: a declaration that the Law Minister's circular was unconstitutional. Judges for:
Tulzapurkar J9. Judges against: Bhagwati, Desai, Gupta, Pathak, Fazal Ali and Venkataramiah
JJ.
(2) Relief sought: a declaration or other order that Additional Judge, Mr Justice S.N. Kumar,
should have his appointment renewed. Judges for: Pathak, Gupta and Tulzapurkar JJ. Judges
against: Bhagwati, Fazal Ali, Desai and Venkataramiah JJ.
(3) Relief sought: a declaration or other order that the transfer of Chief Justice K.B.N. Singh
from Patna to Madras was unconstitutional. Judges for: Bhagwati, Fazal Ali and Desai JJ.
Judges against: Gupta, Tulzapurkar, Pathak and Venkatarami.

But the significance of the case cannot be left at that. In reaching these conclusions, members of
the Court passed over much fascinating ground, and it gives intriguing insights into the attitudes
of the Indian judiciary towards their own role and that of the Constitution in the context of India
today. Some of the most interesting observations are obiter, but that does not necessarily detract
from their importance in the decision of a final court of appeal.

The majority of the Court held that while judicial independence did not require the view of the
Chief J. of India in the matter of appointments and transfers to be determinative, nonetheless
consultation with him would have to be full and effective and his opinion should not ordinarily

8
Supra 3
9
Gupta and Pathak JJ would have been prepared to make a declaration that the circular could not be acted upon.

9|Page
be departed from. The power of the executive in appointing judges was accordingly
circumscribed although it continued to have the last word on who would be appointed.

Validity of letter10
The letter written by the law minister cannot be said to be invalid on the ground that it amount to
a threat to all the additional judges whose consent for being appointed as permanent judge in
High Court other than the one in which they were working is sought or on the ground that the
recruitment of member of the Bar or of the subordinate judiciary functioning outside the State
would be unconstitutional as there would be no possibility of an effective consultation with the
Chief J. of the High Court and the Governor of the concerned State or on the ground that it is an
indirect attempt to transfer some additional judges from one High Court to another or on the
further ground that the circular letter having been addressed without the previous consultation of
the chief J. of India, Art. 217(1) and Art.222 of the constitution had been violated. In this
connection the recommendation in report of the committees of the law commission that one third
of the judge of a High Court should be from consideration.
The Constitution does not state that the Chief J. of the High Court and the Governor of the State
should personally know the persons recommended under Art. 217 of the Constitution and that
they cannot collect information about them by any other source such as the Chief J. of the High
Court having jurisdiction over the area where they are working or the Governor of the other
State. In the true nature of things such personal knowledge cannot be insisted upon. If that is
insisted upon, the consultation with the Chief J. of India itself may turn out to be ineffective for
the very same reason for he cannot be expected to have personal knowledge about many persons
whose names are recommended by the Chief J.s of the various High Courts and Governors, In
the context of Art. 217, it has to be held that the functionaries who have to express opinion under
that Art. can ascertain all relevant information about a person proposed for the appointment by
any other reasonable means and they need not know them personally.

Further the letter cannot be treated an indirect attempt to transfer some additional from one High
Court to another. It cannot be so for the reason that the transfer of an additional Judge (appointed
under Art. 224(1)) unless the arrears have been cleared off and the transfer of an acting Judge
(appointed under Art. 224(2)) in any event would not be possible at all. An additional Judge is
appointed for a term not exceeding two years only with a view to clearing off the arrears in a
High Court. If that is the sole object of appointing him, how can he be transferred as an
additional Judge in the public interest from that Court to another Court unless the purpose for n
additional Judge is very short it would not subserve the interest of efficiency of public service if
he is made to work in more than one High Court during that short period unless there is not
which he is appointed is achieved namely, clearing off the arrears. Moreover when his stay as a

10
Supra 3 (Para 54,769,44,47,48,51,705,1051)

10 | P a g e
sufficient work to be assigned to him in the High Court in which he is initially appointed as an
additional Judge.
Moreover, Art 217 cannot be said to be violated on the ground that the letter was written without
the previous consultation with the chief J. of India. The letter as can be seen from its tenor is
intended to find out whether any additional Judge is willing to be appointed as a Judge in any
other High Court. Such appointment has to be made only in accordance with Art. 217(1) of the
Constitution. Before making such appointment, the President has to consult all the functionaries
mentioned in Art. 217(1) including the Chief J. of India. Art. 222 of the Constitution does not
come into picture at all as no transfer is contemplated under the letter. The letter relates to initial
appointments only. In the circumstances there is no error committed by the Law Minister in
writing the impugned letter to the Chief Ministers.

Locus standi of lawyer

The traditional rule in regard to locus standi is that judicial redress is available only to a person
who has suffered a legal injury by reason of violation of his legal right or legal protected interest
by the impugned action of the State or a public authority or any other person or who is likely to
suffer a legal injury by reason of threatened violation of his legal right or legally protected
interest by any such action. The basis of entitlement to judicial redress is personal injury to
property, body, mind or reputation arising from violation, actual or threatened, of the legal right
or legally protected interest of the person seeking such redress. This is a rule of ancient vintage
and it arose during an era when private law dominated the legal scene and public law had not yet
been born. Under this rule the court was concerned with the question whether the applicant was a
person aggrieved. According to this rule, it is only a person who has suffered a specific legal
injury by reason of actual or threatened violation of his legal right or legally protected interest
who can bring an action for judicial redress. Now obviously where an applicant has a legal right
or a legally protected interest, the violation of which would result in legal injury to him, there
must be a corresponding duty owed by the other party to the applicant. This rule in regard to
locus standi thus postulates a right-duty pattern which is commonly to be found in private law
litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which
have been evolved by the Courts over the years.11

Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons
by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate class of
persons is by reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of the public can
maintain an application for an appropriate direction, order or writ in the High Court under Art.
226 and in case of breach of any fundamental right of such person or determinate class of

11
Supra 3 (Para 17)

11 | P a g e
persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused
to such person or determinate class of persons. There is a vital distinction between locus standi
and justiciability and it is not every default on the part of the State or a public authority that is
justiciable.12

Independence of judiciary
There can be no doubt that the petitioners have a vital interest in the independence of the
judiciary and if an unconstitutional or illegal action is taken by the State or any public authority
which has the effect of impairing the independence of the judiciary, they would certainly be
interested in challenging the constitutionality or legality of such action. They had clearly a
concern deeper than that of a busybody and they cannot be told of at the gates.

Independence of judiciary is doubtless a basic structure of the Constitution but the said concept
of independence has to be confined within the four corners of the Constitution and cannot go
beyond the Constitution, while this absolute judicial power has been conceded by the
Constitution to the judiciary, a certain amount of executive control has already been vested in the
higher judiciary in respect of the subordinate judiciary. At the same time the power of
appointment of High Court Judges including the CJ or SC Judges, including the CJI, vests
entirely in the executive i.e., the President of India, who acts on the advice of Council of
Ministers. Here again, this executive power is not absolute and has to be exercised in
consultation with the C.J.I. in the case of appointment of SC Judges, as also in consultation with
the CJI and the Governor of the States concerned in case of the appointment of Chief J. of the
High Court--in the case of appointment of High Court Judges, the Chief J. of the concerned High
Court is also to be consulted. This Court has in several cases, which need not be repeated here,
clearly held that consultation contemplated by the Constitution must be full and effective and by
convention the view of the concerned CJ and CJI, should always prevail unless there are
exceptional circumstances which may impel the President to disagree with the advice given by
these Constitutional authorities.13

Independence of judiciary under the Constitution has to be interpreted within the framework and
the parameters of the Constitution. There are various provisions in the Constitution which
indicate that the Constitution has not provided something like a 'hands off attitude' to the
judiciary. The power of appointment of High Court Judges and the Judges of the SC vests in the
President and the President being a constitutional head, he is constitutionally bound to act
according to the advice of the Council of Ministers. Art. 32(3), 133(3), 138, 139, 140, 130, 230,
231, 237, 225, 126, 127(1), 128 confers power on the constitutional such as the executive which
when it acts within the limits of power will have the direct impact on the functioning of the
judiciary. This conspectus of Art., not meant to be exhaustive, do indicate the parliament has

12
Supra 3 (Para 23)
13
Supra 3 (Para 318,319)

12 | P a g e
power to regulate the courts jurisdiction. Undoubtedly judiciary, the third branch of the
government cannot act in isolation. They are ensured total freedom, of course, after entering the
office, from any overt or covert pressure or interference in the process of adjudicating causes
brought before them and to this end they are ensured tenure, pay pension, privileges and certain
basic conditions of service. The judiciary like any other constitutional instrumentality has
however, to act towards attainment of constitutional goals. the independence of judiciary is not to
be determined in all its ramifications as some a priori concept but it has to be determined within
the framework of the Constitution, True, that the thrust is to ensure that adjudications are
untrammeled by external pressures or controls and it was conceded that independence of
judiciary under the Constitution is confined to the adjudicatory functions of the Courts and
tribunals and they are insulated from executive control in that behalf. It is not unlikely that the
total insulation may breed ivory tower attitude a bishop delivering sermon from the pulpit and
therefore no claim to be imperium in imperio can be extended to the judiciary or for that matter
to any other instrumentality under the Constitution. It is not as if judicial independence is Ian
absolute thing like a brooding omni presence. Nothing is more certain in a modern society,
declared. U.S. SC in the midcentury, than the Principle 'that there are no absolutes'. Nor should
Judges be independent of the broad accountability to the nation and its indigent and inJ. ridden
millions. Therefore, consequently one need not too much- idolise this independence of judiciary
so as to become counter-productive.14

In the American Constitution by virtue of the fact that the entire judicial power is vested in the
SC or other Courts, the appointments have to be made by the SC, unlike the provisions of our
Constitution where appointments are to be made by the President in consultation both with
judicial and executive authorities as indicated above. Therefore, in expounding the concept of
separation, the essential distinctive features which differentiate our Constitution from the
American Constitution must be kept in mind.15

So far as framers of our Constitution are concerned they had deliberately rejected the theory of
complete insulation of the judicial system from the executive control. The Indian Constitution
has devised a wholesome and effective mechanism for the appointment of Judges which strikes a
just balance between the judicial and executive powers so that while the final appointment vests
in the highest authority of the executive, the power is subject to a mandatory consultative process
which by convention is entitled to great weight by the President. Apart from these safety valves,
checks and balances at every stage, where the power of the President is abused or misused or
violates any of the constitutional safeguards it is always subject to judicial review. The power of
judicial review, which has been conceded by the Constitution to the judiciary is in our opinion

14
Supra 3 (Paras 703, 704)
15
Supra 3 (Para 326)

13 | P a g e
the safest possible safeguard not only to ensure independence of judiciary but also to prevent it
from the vagaries of the executive. 16

Appointment and transfer of judges

The thesis that the Constitution prohibits the participation of the Executive in the appointment of
Judges of superior courts and that the opinion of the Chief J. of India alone should be binding on
the President in such matters totally fails when we consider the question of appointment of the
Chief J. of India. Art. 124(2) of the Constitution provides that every Judge of the SC shall be
appointed by the President by warrant under his hand and sea] after consultation with such of the
Judges of the SC and of the High Courts-in the States as the president may deem necessary for
the purpose and that in the case of appointment of a Judge other than the Chief J., the Chief J. of
India shall always be consulted. From the . clause of Art. 124, it is obvious that when the
appointment is to the post of the Chief J. of India, it is not obligatory on the part of the President
to consult any specified functionary. But he has to consult such of the Judges of the SC each one
of whom may himself be an aspirant to the post and such other Judges of the High Courts he may
consider necessary. In this situation, it is quite evident that the opinion of any one of the Judges
who may be consulted cannot be treated as binding on the President. The power appointment
rests with the President who has no doubt to take the decision on the advice given by the Council
of Ministers after making the necessary consultation. When the 'primacy of Judicial opinion'
doctrine thus falls in the case of the appointment of the Chief J. of India, it would not be
appropriate to hold that it prevails in the case of appointments of other Judges of the SC and the
Judges of the High Courts.17

The consultation contemplated by that Art. is full and effective consultation where the relevant
facts bearing upon appointment or non-appointment are brought to the notice of the Central
Government and the three constitutional functionaries required to be consulted and the opinion
of each of the three constitutional functionaries is taken on identical material and then a decision
is reached by the Central Government whether or not to appoint the person concerned as a Judge,
whether additional or permanent. Now Art. 217 does not require that any particular procedure
should be followed for full and effective consultation nor does it insist that the relevant facts on
which the final decision of the Central Government is based should be conveyed to the other
three constitutional functionaries in any particular manner or by the Central Government itself.
What is necessary to ensure full and effective consultation within the meaning of Art. 217 is that
the Central Government as well as each of the three constitutional functionaries required to be
consulted "must have for its consideration full and identical facts which can at once constitute
both the source and foundation of the final decision" and it is immaterial as to how such "full and
identical facts" are conveyed by one authority to the other. It is sufficient compliance with the
constitutional requirement of Art. 217 if the self-same facts on which the final decision is taken

16
Supra 3 (Paras 333, 343)
17
Supra 3 (Paras 1014, 1015)

14 | P a g e
by the Central Government are placed before each of the three constitutional functionaries
required to be consulted and their opinion is taken on the basis of such facts. Whatever be the
manner in which those facts are brought to their notice.18

The word 'consultation' has thus been used in different contexts and different authorities are
required to be consulted for different purposes before exercise of certain power. The scope and
content of consultation may vary from situation to situation. If the consultation is for
appointment all those relevant consideration which enter the verdicts before an appointment is
made would be the subject matter of consultation. If the consultation is for transfer of a High
Court judge under Art. 222 (2) the word consultation would mean examination of all those
relevant aspect including the consequence of transfer.19

Under Art. 217(1), the consultation is for the purpose of appointment of a Judge of High Court.
The constitutional functionaries to be consulted are the Chief J. of the High Court, Governor of
the State and Chief J. of India. The consultation has to be meaningful, purposeful, result oriented
and of substance. Wherever the President can exercise power in consultation with the Chief J. of
India or other constitutional functionaries, the consultation has to be on all relevant aspects
which would enter the final verdict. All the parties involved in the process of consultation must
put all the material at its command relevant to the subject under discussion before all other
authorities to be consulted. Nothing can be kept back. Nothing can be withheld, Nothing can be
left for the eye of any particular constitutional functionary. In case of transfer, all necessary facts
in support of the proposed action of transfer must be communicated to president and all his
doubts and queries must be adequately answered by the Government. The president has,
however, a right upon consideration of all relevant facts to differ from the other constitutional
functionaries for cogent reasons and take a contrary view.20

When, on the expiry of his term, an Additional Judge is considered for a further term in that
office his case attracts the provisions of Clause (1) of Art. 217, and the President must consult
the functionaries mentioned in that clause. In the case of the High Court of Delhi, consultation is
called for with the Chief J. of India and the Chief J. of the High Court only. The consultative
process, it may be reiterated, requires that all the material in the possession of the Chief J. of the
High Court must be placed before the Chief J. of India as well as the President. Likewise, all the
material in the possession of the Chief J. of India must be placed before the President and the
Chief J. of the High Court. So also, all the material in the possession of the President must be
placed before the Chief J. of India and the Chief J. of the High Court. A continuous process of
consultation between all three authorities is mandated, resulting ultimately in advice tendered to
the President by the Chief J. of the High Court and the Chief J. of India.21

18
Supra 3 (Para 86)
19
Supra 3 (Para 759)
20
Supra 3 (Para 760)
21
Supra 3 (Para 890)

15 | P a g e
It must appear to the President that either by reason of temporary increase in the business of the
High Court or by reason of accumulation arrears of work in the High Court, it Is necessary to
increase the number of the Judges of that Court for the time being. The power to appoint an
additional Judge cannot therefore be exercised by the President unless there is either temporary
increase in the business of the High Court or there is accumulation of arrears of work in the High
Court and even when one of these two conditions exists, it is necessary that the President must be
further satisfied that it is necessary to make a temporary increase in the number of Judges of that
High Court, The words "for the time being" clearly indicate that the increase in the number of
judges which the President may make by appointing additional Judges would be temporary with
a view to dealing with the temporary increase in the business of the High Court or the arrears of
work in the High Court. Art. 224, Clause (1) did not contemplate that the increase in the number
of Judges should be for an indefinite duration. By reason of the expectation raised in his mind
through a practice followed for almost over a quarter of a century, an additional Judge is entitled
to be considered for appointment as an additional Judge for a further term on the expiration of
his original term and if in the meanwhile, a vacancy in the post of a permanent Judge becomes
available to him on the basis of seniority amongst additional Judges, he has a right to be
considered for appointment as a permanent Judge in his High Court. Unlike a Permanent Judge
whose tenure is fixed by reference to his age, the tenure of an Additional Judge when appointed
under Art. 224(1) is fixed by the warrant of his appointment and on the expiry of the period
mentioned in the warrant he ceases to be a Judge of the High Court. It is also true that his
continuance as an Additional Judge for any further term or as a Permanent Judge in the vacancy
of a permanent post cannot be thought of unless for continuance as Additional Judge either one
or the other or both the pre-conditions mentioned in Art. 224(1) obtain in that High Court, and
for continuance as a Permanent Judge the normal business of the High Court justifies the filling
up of the vacancy in the permanent post. In other words pendency of work must justify such
continuance temporary increase in the business of the High Court or arrears of work therein or
both for, extension of his term and normal business (current institutions) for making him
permanent.22

When the term of an additional Judge expires he ceases to be a Judge and therefore, if he is to
continue as a Judge, he must be either reappointed as an additional Judge or appointed as a
permanent Judge. In either case, Clause (1) of Art. 217 would operate and no reappointment as
an additional Judge or appointment as a permanent Judge can be made without going through the
procedure set out in Art. 217 Clause (1). Of course, an additional Judge has a right to be
considered for such reappointment or appointment, as the case may be, and the Central
Government cannot be heard to say that the additional Judge need not be considered. The
additional Judge cannot just be dropped without consideration. The name of the additional Judge
would have to go through the procedure of Clause (1) Art. 217 and after consultation with the
Chief J. of India, the Governor of the State and the Chief J. of the High Court, the Central

22
Supra 3 (Para 37, 722, 723, 737, 613)

16 | P a g e
Government would have to decide whether or not to reappoint him as an additional Judge or to
appoint him as a permanent Judge.23

There can be no doubt that an additional Judge is not entitled as a matter of right to be appointed
as an additional Judge for a further term on the expiration of his original term or as a permanent
Judge. The only right he has to be considered for such appointment and this right also belongs to
him not because Clause (1) of Art. 224 confers such right upon him, but because of the peculiar
manner in which Clause (1) of Art. 224 has been operated all these years.24

It would not be right to say that merely because the fitness and suitability of the additional Judge
is required to be considered again for the purpose of deciding whether he should be reappointed
for a further term or appointed as a permanent Judge, it would amount to treating him as if he
were on probation. An additional Judge is certainly not on probation in the sense that his service
cannot be terminated before the expiration of his term, unlike a probationer who can be Bent out
any time during the period of probation. It would also not be open to the Chief J. of the High
Court or the Governor of the State or the Chief J. of India to sit in judgment over the quality of
the work turned out by the additional Judge during his term, because that would be essentially an
appellate function which can be discharged only by the court entitled to hear appeals from the
decisions of the additional Judge. But every other consideration which bears on the physical,
intellectual and moral fitness and suitability of the additional Judge can and must be considered
and if the Central Government finds, after consultation with the Chief J. of the High Court, the
Governor of the State and the Chief J. of India that the additional Judge is not fit and suitable for
being appointed as a Judge, the Central Government may decide not to appoint ham as an
additional Judge for a further term or as a permanent Judge. So long as the case of the additional
Judge is considered by the Central Government for reappointment or appointment as the case
may be, the decision of the Central Government cannot be questioned except on the ground that
it was reached without full and effective consultation with the Chief J. of the High Court, the
Governor of the State and the Chief J. of India or that was based on irrelevant considerations.25

Further, the term for which an additional Judge is appointed must not be less than two years,
unless the temporary increase in business or the arrears of pending cases are so small that they
can reasonably be disposed of within a shorter period, which, of course, today is only an idle
dream in most of the High Courts. We may also point out that an additional Judge cannot be
appointed for a period of three months or six months in order to enable the Chief J. of India or
the Central Government to consider whether the additional Judge should be appointed for a
further term or as a permanent Judge. That is a matter on which the Chief J. of India must come
to his opinion well in tune and the Government of India must also reach its decision sufficiently
in advance so that the additional Judge would know quite some-time before his term is due to

23
Supra 3 (Para 38, 39)
24
Supra 3 (Para 39)
25
Supra 3 (Para 40)

17 | P a g e
expire whether he is going to be appointed for a further term or is going to be discontinued.
There is no power in the Central Government to appoint an additional Judge for a short term in
order to enable either the Chief J. of India or the Central Government to make enquiries with a
view to satisfying itself whether the additional Judge s fit and suitable for being appointed as an
additional Judge or as a permanent Judge. We are, therefore, of the view that the Chief J. of India
acted under a misconception of the true constitutional position when he recommended the
appointment of O.N. Vohra, S.N. Kumar and S.B. Wad for a period of six months and the
Central Government was also in error in appointing them only for a period of three months.26

The nature of the appointment under Art. 224 is a pure tenure appointment for a fixed period and
once the period expires, there is no question of extension of that period or reappointment. In
other words, once the time for which a Judge has been appointed expires, the appointment of the
Judge ceases to exist. That being so, whenever a Judge is sought to be appointed afresh, the
constitutional functionary will have to go back to Art. 217 even if a Judge is to be appointed
under Art. 224 and the question of suitability would be the first criterion. As in the case of initial
appointment under Art. 217, so in the case of a fresh appointment after the period mentioned in
Art. 224 expires, there is no legal right to be appointed nor does non-appointment give rise to
any legal or constitutional infirmity so as to be the subject of a judicial review. It is a different
matter that if an Additional Judge is considered for a permanent appointment afresh, the fact that
he has acquired some experience would undoubtedly be an important factor to be taken into
consideration while judging the suitability of the candidate concerned.27

Thus, the position is that even if an Additional Judge is not appointed afresh and somebody else
is appointed, there is no question of judicial review nor is there any question of the non-
appointment of an Additional Judge afresh casting any reflection or aspersion on the reputation
or character of an Additional Judge because he was appointed only for a particular period and for
a particular purpose and is not on probation.28

An additional judge has a right to be considered for appointment as a permanent judge or to be

considered for further appointment as additional Judge.29

The Additional Judges are person having the same high order of character integrity and legal
ability as is required in the case of permanent Judge. The standards for making appointment as
additional judge or as permanent Judge are not different. Furthermore additional judges accept
office as permanent Judges in accordance with that practice. The requirement of an undertaking
that he would not refuse an offer of appointment as permanent Judges further demonstrates how
the appointment of additional judges regarded by the president. As such the case of an additional

26
Supra 3 (Para 43)
27
Supra 3 (Para 527)
28
Supra 3 (Para 528)
29
Supra 3 (Para 887)

18 | P a g e
Judges must be distinguished from the case of a person considered for direct appointment as
permanent judge.30

On a fair construction of Art. 224(1) of the Constitution which enables the President to appoint
an additional Judge for a period not exceeding two years and of Art. 217(1) of the Constitution
which limits the tenure of an Additional Judge appointed to the period specified under Art.
224(1), it is not possible to make a declaration that an additional Judge should be deemed to have
been appointed as a permanent Judge On the ground that when his appointment was made under
Art. 224(1) it was necessary for the President to appoint a permanent Judge in view of the
quantum of work pending in the High Court concerned and not an additional Judge The warrant
of appointment has to be construed in accordance with the unequivocal language in which it is
couched and nothing more can be read into it.31

30
Supra 3 (Para 887)
31
Supra 3 (Para 1057)

19 | P a g e
CHAPTER 4
JUDICIAL ANALYSIS
In this chapter researcher will talk about the cases which was come after the SP Gupta case

Words of Dr Ambedkar, in the debate of the constitution -

It might be necessary that one judge may be transferred from one High Court to another in order
to strengthen the High Court elsewhere by importing better talent which may not be locally
available. Secondly, it might be desirable to import a new Chief Justice to a High Court because
it might be desirable to have a man who is unaffected by local politics and local jealousies.

JURIDICAL HISTORY OF APPOINTMENT OF JUDGES IN INDIA

Keeping in mind the separation of powers between the judiciary and the executive, the framers of
the Constitution came up with three important provisions to deal with appointments and transfer
of judges of the High Courts and the SC. Art.124, 217 and 222 of the Constitution deal with the
above mentioned subject. However, the appointments to the HIGH COURTs and the SC were
not being made with respect to these provisions of the Constitution. These appointments were
being made by a collegium, a non-constitutional forum, which consists of the Chief J. of India
(CJI) and the four most senior judges of the SC. Until 1981, the abovementioned provisions of
the Constitution were the guiding principles for appointment of judges, and the final decision
making power rested with the President. However, a set of cases in the next two decades,
popularly referred to as the Three Judges Cases, altered this position of law. In 1981, the SC
in the First Judges case32 held that the word consultation mentioned under Art. 124 did not
mean concurrence and the Government was not bound by the opinion of the CJI and could
reject it for cogent reasons. This judgment resulted in the power solely resting in the hands of
the executive with respect to appointments of judges to the higher judiciary. However, this
position changed after the landmark decision given in the Second Judges case33. The majority
case in that case overturned the First Judges case ruling and held that the role of the CJI is
primal in nature. The majority (7:2) of the bench held that the appointments had to be made so
as to be in conformity with the opinion of the CJI. Thus, the collegium system was introduced,
where the power to appoint the judges to the higher judiciary rested with the CJI and the two
senior most judges of the SC. This was followed by the Third Judgess case34 in 1998 when
President K.R.Narayanan made a presidential reference to the SC relating to the above issue. The
Courts opinion in the present reference was in consonance with the decision of the Second
Judges case. The Court reiterated the fact that CJI had the primacy in the decision making
process and held that any appointments made without his consultation would not be valid. It is

32
S.P. Gupta vs. Union of India, AIR 1982, SC 149
33
Supreme court advocates - on record association v. union of India, (1993) 4 SCC 441
34
Special Reference No.1 1998, Re:,(1998) 7 SCC 739

20 | P a g e
important to keep in mind that there was widespread criticism of the decision of the first judges
case and many believed that the SC did a reasonable job by changing the system of
appointments. One of the most pertinent aspects of the collegium system was that it does not
provide for any scope for disregarding the CJIs opinions. However, the collegium system was
not flawless. Lately, it had come to face enormous criticisms with respect to its functioning.

After understanding the background of appointment of judges we will look into the concept of
Collegium system and NJAC.

SECOND JUDGE CASE - JUDICIAL SUPREMACY: S.C. ADVOCATE ON RECORD

ASSOCIATION V. UNION OF INDIA

Late Justice J S Verma, former CJI and author of majority judgment in Second Judges
case (1993) 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. My judgment 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.

In this case nine judges bench of the SC by a 7-2 majority overruled its earlier judgment in S.P.
Gupta v. Union of India and held that in the matter of appointment of the Judges of SC and the
High Court the CJI should have primacy. The matter was brought before the Court through PIL
writ petition filed by an advocate of the SC seeking relief of filling up vacancies in the higher
judiciary. The appointment of CJI shall be on the basis of seniority. The Court has laid down the
detailed guidelines governing appointment and the transfer of Judges and held that the greatest
significance should be attached to the view of CJI formed after taking account the views of two
senior most Judges of SC . It thus has, reduced to the minimum individual discretion conferred
upon the Prime Minister and the CJI so as to ensure that neither political bias nor the personal
favouritism nor animosity should play any part in the appointment of judges of the SC and High
Courts. The selection should be made as result of a participatory consultative process in which
executive should have power to act as a mere check on exercise of power by the CJI. Mr. J.
Verma who delivered the majority judgment observed: Thus, the executive element in the
appointment process has been reduced to minimum and political influence is eliminated. It is for
this reason that the word consultation instead of concurrence was used in the Constitution but
that was done merely to indicate that absolute discretion was not given to anyone, not even to the
CJI as an individual, much less to the executive S.R. Pandian and Kuldeep Singh, JJ. agreed
with the majority view but delivered their separate judgment while A.M. Ahmadi and M.N.

21 | P a g e
Punchhi, JJ. delivered the dissenting judgments. He said that if primacy is given to the CJI the
view of the other constitutional functionaries would become redundant. The majority held that
the initiation of proposal for appointment in the case of SC must be by the CJI and in the case of
High Court by the Chief J. of High Court, and for a transfer of a judge of the High Court and of
the Chief J. of the High Court the proposal has to be initiated by the CJI. No appointment of any
judges to the SC or any High Court can be made, unless it is in conformity with the opinion of
the CJI. Only in exceptional case and for strong reason, the names recommended by the CJI may
not be made.

The majority held that the appointment to the office of the CJI of India should be made on the
basis of the seniority that is the senior most judge considered suitable to hold the office be
appointed as the CJI.

The important guidelines laid down by the court are the following-

It gives the primacy to the CJI but puts a rider that he must consult his two colleagues.
Constitutional functionaries must act collectively in judicial appointment.
CJI has the final say in transfer of Chief J.s and Judges of High Courts.
Transfer of Chief J.s and Judges of High Courts cannot be challenged in Courts.
Appointment of the CJI by seniority.
No Judge can be appointed by the Union Government without consulting the CJI.
Fixation of the strength in High Courts is justiciable.
Judgment in SP. Gupta v. Union of India is overruled.

THIRD JUDGE CASE

In re Presidential 35reference a nine judge bench of the SC has unanimously held that the
recommendation made by the CJI on the appointment of Judges of the SC and the High Courts
without following the consultation process are not binding on the Government. The court also
widened the scope of the Chief J.s consultation process upholding the governments stand on
consultation process, the Court gave its opinion on the nine question raised by the President in
his reference to the SC, under Art. 143 of the Constitution. The President had sought the SCs
clarification on the consultation process, as laid down in SC Advocates Case for the
appointment by the former CJI M.M. Punchhi. The BJP government did not agree with the
recommendation and referred the matter for the SCs opinion. The Court held that the sole
individual opinion of the CJI does not constitute consultation within the meaning of the said
Art.s. The majority held that in regard to the appointment of judges to the SC under Art. 124 (2),

35
re Presidential reference AIR 1999 SC 1

22 | P a g e
the CJI should consult a collegiums of four senior-most Judges of SC and made it clear that if
two judges gives adverse opinion the CJI should not send the recommendation the
Government. The collegiums must include the successor CJI. The opinion of the collegiums
must be in writing and the CJI should send the recommendation to the President along with his
own recommendation. The recommendation of the collegiums should be based on a consensus
and unless the opinion is in conformity with that of the CJI, no recommendation is to be made. In
regard to the appointment of Judges of High Courts, the Court held that the collegiums should
consist of the CJI and senior-most Judges of SC. In regard to transfer of High Court Judge the
court held that in addition to the collegiums of four judges, the CJI is required to consult Chief
J.s of the two High Courts (one from which the Judge is Being transferred and the other
receiving him). The court held that the appointment of the Judges of higher courts can be
challenged only on the ground that the consultation power has not been given in conformity with
the guidelines laid down in the 1993 judgment and as per opinion given in 1999 decision, i.e.,
without consulting four senior most Judges of the Apex Court. The decision of SC has struck
down a golden rule. It has made the consultation process more democratic and transparent.

THE FOURTH JUDGES CASE

Finally the SC in a writ petition filed in SC Advocates-on Record Association and others v.
Union of India36 in a five judges bench headed by J.s JS Khehar, MB Lokur, Kurian Joseph, AK
Goel and J. J Chelmeswar declared unconstitutional an amendment to validate the National
Judicial Appointments Commission (NJAC) Act, which had contemplated a significant role for
the executive in appointing judges in the higher judiciary. Effectively sealing the fate of the
proposed system, which was unanimously passed by both Houses of parliament, a five-judge
Constitution Bench ruled with a 4:1 majority that judges appointments shall continue to be made
by the Collegium system in which the Chief J. of India will have the last word. The 20-year-
old collegium system prescribes appointment of judges by a panel comprising five seniormost
judges of the SC and High Courts, with the power to confirm appointments despite resistance, if
any, from the government. While four judges J.s JS Khehar, MB Lokur, Kurian Joseph and
AK Goel declared as unconstitutional the 99th Constitutional Amendment, J. J Chelmeswar
held that it is validity. The petitions had challenged the constitutional validity of the NJAC Act
which had brought to an end the two-decade-old collegium system of judges appointing judges in
the higher judiciary. The apex court bench had reserved its judgement on July 15 after a
marathon hearing for 31 days on the issue of validity of the 99th Constitutional Amendment and
the NJAC Act. Reacting to the development, Union Law Minister DV Sadananda Gowda said
that he is surprised by the verdict of the SC. Will of the people had been brought to the court.
(We) will (now) consult senior colleagues and the Prime Minister and take decision, Gowda

36
2015 (11) SCALE 1; Judgment delivered on October 16, 2015 under Writ petition (civil ) 3 of 2015

23 | P a g e
said. NJAC was completely supported by Rajya Sabha and Lok Sabha; it had 100 percent
support of the people, he added. The petitions challenging the new legislation were filed by the
SC Advocates on Record Association (SCAORA) and others contending that the new law on the
selection and appointment of judges was unconstitutional and aimed at hurting the independence
of judiciary. However, the Centre had defended the introduction of the new law saying that the
two-decade-old collegium system where judges appointed judges was not free from defects and
got the support of the SC Bar Association.

24 | P a g e
COLLEGIUM SYSTEM AND NJAC
The process of appointment of judges to the superior courts is possibly the best kept secret
of the country
J. Ruma Pal

The system of appointment of judges has always been an area of confusion and controversy.
Several unsuccessful attempts have been made to arrive at a single effective position of law since
independence. The present government, in order to rectify this situation, has come up with the
National Judicial Appointments Commission Act, 2014 (Hereinafter referred to as the NJAC
Act) to replace the existing collegium system of judicial appointments.

THE CRITICAL ANALYSIS OF THE COLLEGIUM SYSTEM

Independence of the judiciary is a basic feature of the Constitution and needs to be safeguarded
Jealously. Unless the judges are fearlessly independent and upright, J. cannot be evenhanded.
The first judges case in 1981 created a suffocating situation as the judiciary could not play an
effective role in the selection of judges. After 1973 the relations between the judiciary on one
side and the executive and legislature on the other were far from cordial. The Indian Bar is
always vigilant and vocal. It is the lawyers who fight for J. for citizens and non-citizens alike in
courts.

The 20-year-old collegium system has been severely criticized even by SC judges
who were members of the collegium. The main allegation is that there is a total lack of
transparency. Members of the SC collegium have also been accused of exploiting
their power to appoint their close relatives or particular lawyers as High Court judges.
Similarly, personal animosity has resulted in the delay or denial of appointments to the
SC. Initially, the collegium performed well but later on when short-sighted persons
who could not rise above narrow considerations became members, the recommendations
lacked quality. The executive became helpless to stall undesirable appointments with the result
independence of the judiciary suffered a setback. There have been instances where a candidate
rejected by one collegium on account of doubts regarding integrity was picked up by the next
collegium. Such appointments tend to shake the confidence of the public and the Bar in the
judiciary. The collegium headed by J. KG Balakrishnan37 was bent upon pushing
through the elevation of J. P.D. Dinakaran, the then Chief J. of Karnataka High
Court, to the SC, brushing aside the resolution of the Bar Association of India
headed by Fali S. Nariman of which eminent senior advocates were vice-presidents. The
resolution suggested that the recommendation should be kept in abeyance till J. Dinakaran

37
37th Chief J. of India, Retired in the year 2010.

25 | P a g e
was exonerated of the charges of corruption. He eventually resigned after receiving the show
cause notice from the Judges Inquiry Committee. A judge of the Calcutta High Court, J.
Soumitra Sen, averted impeachment by Parliament by tendering his resignation at the last
minute. A few High Court judges who are the products of the collegium system are facing
criminal prosecution on charges of corruption. Favoritism and nepotism on the part of the
collegium of the SC and the High Courts have been noticed in some cases. More
deserving candidates were held back and less deserving were elevated to the SC.
Therefore, restoring the collegium is not the best option.38

The country needs a better system than the collegium and the NJAC. The National
Commission to Review the working of the Constitution of India39 chaired by the most highly
reputed former Chief J. of India, J. M.N. Venkatachaliah40, recommended a five- member
Judicial Appointments Commission consisting of the Chief J. of India as the
Chairperson, two senior-most judges, the Law Minister and one eminent person as members .
The latest judgment is not bad to the extent it has struck down the impugned Constitution
amendment and the Act as upholding them would have been a disaster. The decision of the
court to hear separately on the measures to improve the collegium system is a silver lining in a
dark cloud. The collegium system has been tried for two decades and it has proved to be
opaque, unsafe and unaccountable. On several occasions, members of the collegium were
perceived to be guided by personal factors and indulging in give and take, compromising on
the quality of selection.
The importance given to seniority of High Court judges in the matter of elevation to the
SC has not improved the quality of appointments in many cases. In the ultimate
analysis the quality of appointments made reflects the quality and caliber of the selectors. It is
necessary to co-opt the Law Minister as a member of the collegium without a right to vote so
that with his inputs the recommendations made would go through smoothly. The greatest relief
today is the stalemate created due to the pendency of the case has ended.235
In the end, the NJAC will destroy the independence of the judiciary. The involvement of the
Law Minister, the leader of the Opposition, the Governors and Chief Ministers in the
appointment of High Court judges will inevitably lead to serious political manipulation. In
1973, Indira Gandhi struck a major blow to judicial independence by the shameful supersession
of judges. Forty years later, Parliament has thoughtlessly created a Commission that the nation
will deeply regret. For the judiciary at least, acche din may soon be over.41

38
http://www.tribuneindia.com/news/comment/restoring-collegium-not-the-best-option/146873.html
39
Committee appointed by the NDA government in the year 2000 and chaired by Honorable J. M N
Venkatachaliah.
40
25th Chief J. of India, Retired in the year 1994.
41
http://www.thehindu.com/opinion/op-ed/national-judicial-appointments-commission-a-fatally-flawedcommission/
Art.6326265.ece

26 | P a g e
THE CONCEPT OF NATIONAL JUDICIAL COMMISSION

Significance of the Composition of National Judicial Commission: When we talk of a

National Judicial Commission, what is fundamentally important is its composition. Its
composition should not be such as to affect directly or indirectly the independence of the
judiciary and the power of judicial review both of which have been held to be the basic features
of our Constitution. Our Constitutional system comprises the written Constitution, the
conventions which have been developed and are being followed and the interpretation of the
Constitution by the SC. Though Art.s 124 and 217 speak of a Judge of the
SC and of the High Court being appointed by the President in consultation with
the Chief J. of India and certain other specified authorities, a convention has evolved over
the last 50 years where under the proposal for appointment is initiated by and emanates only
from the Chief J. of the High Court (in the case of appointment to the High Court) and
the Chief J. of India (in the case of appointment to the SC).

Independence of Judiciary constitutes a basic feature:

Justice Ruma Pal, former Judge Supreme Court in the fifth V.M. Tarkunde Memorial
Lecture said I will conclude with the most important facet of judicial independence.
Judicial independence cannot exist without accountability. At present the only
disciplinary power over judges is vested in Parliament which provides for the extreme
punishment of removal for acts of proven misbehaviour by or incapacity of a judge.
Disciplinary methods include the Chief Justice advising a dishonest judge to resign or
recommending a judges name to the Chief Justice of India for transfer to another High
Court.

Independence of judiciary has been repeatedly held by the SC to be a basic feature of the
Constitution.241 In the famous cases like Shri Kumar Padma Prasad v/s. Union of India42 and
High Court of Bombay v/s. Sri Kumar43 the honorable SC has reiterated this fact. Similarly the
power of judicial review vesting in the SC and High Courts has also been held to be a basic
feature
in the case of Chandra Kumar v/s. U.O.I.44

Composition of the National Judicial Commission to be consistent with the concept of

independence of judiciary: Since the independence of judiciary constitutes a basic feature it
cannot be taken away or curtailed in any manner by an amendment to the Constitution, it can
neither be done directly nor can it be done indirectly. In other words, the independence of the
judiciary cannot be affected or curtailed by so changing the method of appointment of judges

42
1992 (2) SCC 428 at 456
43
1997 (b) SCC 339 para 13 at page 355
44
AIR 1997 SC 1125

27 | P a g e
of the SC and High Court as to impinge upon their independence. For example, if
Art. 124 and 217 are amended to take away the consultation with the Chief J. of India,
it would vitally affect the independence of the judiciary. In such a case the appointment would
in fact be made by the executive acting alone in the case of SC and in the case of
the High Court the element of executive would predominate and the concept of primacy of
Chief J. of India would disappear. The convention that the proposal should emanate from
the Chief J. of India (in the case of SC) would also come to naught.

NJAC DECLARE UNCONSTITUTIONAL

In a jolt to the central government, the SC on 16thOctober 2015, in the fourth

Judges Case struck down the constitution's 99th amendment and the NJAC Act as
unconstitutional and void, restoring the collegium system for appointment of judges to the
higher judiciary. In a collective order, the constitution bench of J. Jagdish Singh Khehar, J. J
Chelameswar, J. Madan B Lokur, J. Kurian Joseph and J. Adarsh Kumar Goel said that
the constitution's 99th amendment and the NJAC Act are unconstitutional and void. The
constitution amendment and National Judicial Appointments Commission (NJAC) Act were
brought to replace the 1993 collegium system for the appointment of judges to the SC and the
High Courts. The court said the system of "appointment of judges to the SC, chief J.s and judges
of the High Courts and the transfer of chief J.s and judges of the High Courts that existed prior to
the amendment begins to be operative". The court sought suggestions
from the bar for improved functioning of the collegium system. J. Kehar Stated, I have
independently arrived at the conclusion, that clause (c) of Art. 124A(1) is ultra vires the
provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law
and J. as an ex officio Member of the NJAC. Clause (c) of Art. 124A(1), in my view, impinges
upon the principles of independence of the judiciary, as well as, separation of powers. It has
also been concluded by me, that clause (d) of Art. 124A(1) which provides for the inclusion of
two eminent persons as Members of the NJAC is ultra vires the provisions of the Constitution,
for a variety of reasons. The same has also been held as violative of the basic structure of the
Constitution.45

J. Joseph Kurien in his judgment started out with the Latin maxim: Entia Non Sunt
Multiplicanda Sine Necessitate (Things should not be multiplied without necessity).

Complimenting his brother judges masterpiece judgments, he wrote a very short judgment
leaving all legal jargons and using a language of the common man, the core issue before us is
the validity of the Constitution 99th amendment, holding: Direct participation of the
Executive or other non-judicial elements would ultimately lead to structured bargaining in

45
http://www.livemint.com/Politics/vmO3nS2jzQGCMfRI1LmdfJ/Supreme-Court-strikes-down-NJAC-collegium-
system-to-stay.html

28 | P a g e
appointments, if not, anything worse. Any attempt by diluting the basic structure to create a
committed judiciary, however remote be the possibility, is to be nipped in the bud. According
to J. Roberts, court has no power to gerrymander the Constitution. Contextually, I would
say, the Parliament has no power to gerrymander the Constitution. The Constitution 99th
amendment impairs the structural distribution of powers and hence it is impermissible.

29 | P a g e
CHAPTER 5
LEGAL ANALYSIS
ARTICLE 216 - Constitution of High Courts Every High Court shall consist of a Chief Justice and such
other Judges as the President may from time to time deem it necessary to appoint.46

ARTICLE 217 - Appointment and conditions of the office of a Judge of a High Court

(1) 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 Provided that

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of
India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in
succession;

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the
President after consultation with the Chief Justice of India and the decision of the President shall be
final.47

Art. 216 plainly declares that the High Court shall consist of a Chief J. and other Judges. The
Chief J. is a Chief J. of that High Court only and so are the other Judges. The Judges of a High
Court owe their responsibilities and discharge their functions in relation to that High Court only.
They have no constitutional connection and no legal relationship with the body of Judges of any
other High Court

The method of appointment of judges of High Court is provided in Art. 217 of the constitution.
The President appoints the Judges of HIGH COURTs after consulting with and CJI, chief J. of
relevant High Court and governor of state and in the case of the chief J. of the High Court
consultation is required with chief J. of India and governor of the respective state. The word
consultation has been interpreted in three judgments of the SC, known as the Three Judges
cases. The condition for the appointment of the judge of the High Court is that he/she must be
the citizen of India and has for at least ten years held a judicial office in the territory of India or
has for at least ten years been an advocate of a High Court or of two or more such Courts in
succession. After understand the Art. we will look from the perspective of SP Gupta case.

46
The constitution of India 1949
47
Supra 45

30 | P a g e
This Art. deal with the mode of appointment of judges of High Court, their tenure, and their
qualification. Its procedure is mandatory and applies to the appointment of regular judges as well
as additional judges under Art. 224. Controversies concerning this procedure came for
determination before the court in the Judges case. In the lengthiest ever decision of the court
different judges expressed their views on this and other issue involved in that case. In brief , the
court held that the consultation with each of the three constitutional functionaries, the chief J. of
the High Court, the governor of the state and the chief J. of India must be a full and effective
consultation, which has the same meaning under Art. 222(1) namely, obtaining opinion after
due deliberation, placing full and identical facts and material before the person being consulted.
Nothing could be kept back. In such consultation, the president could override the opinion given
by such functionaries and in case of difference of opinion among them decide whose opinion
should be accepted and whether appointment should be made or not. No primacy could be given
to the opinion of the chief J. of India. The decision of the president could be challenged in a
court of law either on ground of mala fide or on the ground that it was based on irrelevant
consideration. The president meant the president acting through his council of ministers. That
introduced to the exercise of the power of appointment vested in the president an element of
popular will. Appointment once finalized could not be reopened on the change of the chief J. of
the High Court of the High Court or the chief minister of the state. And the process of
appointment should be perfect and smooth so that appointment of judges should not be taken to
be an executive function. It is rather a constitutional process which must be observed in its true
spirit to maintain the independence and dignity of the judiciary. 48

ARTICLE 222 - Transfer of a Judge from one High Court to another

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from
one High Court to any other High Court

(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the
commencement of the Constitution (Fifteenth Amendment) Act, 1963 , as a Judge of the other
High Court, be entitled to receive in addition to his salary such compensatory allowance as may
be determined by Parliament by law and, until so determined, such compensatory allowance as
the President may by order fix.49

The scope of Art. 222 of the Constitution which provided for such transfers and amounted to an
unwarranted executive interference with the judiciary. They have also alleged that the manner of
appointment of additional Judges under Art. 224(1) of the Constitution was a clear abuse of that
provision which empowered the President to appoint additional Judges to clear off arrears in
High Courts but not where the arrears were continuously rising.

48
Sp Gupta vs. Union of India, AIR 1982, SC 149
49
Supra 45

31 | P a g e
Art. 222(1) postulates fair play and contains built-in safeguards in the interests of
reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in
public interest only. Secondly, the President is under an obligation to consult the Chief J. of India
which means and requires that all the relevant facts must be placed before the Chief J.. Thirdly,
the Chief J. owes a corresponding duty, both to the President and to the Judge who is proposed to
be transferred, that he shall consider every relevant fact before he tenders his opinion to the
President. In the discharge of this constitutional obligation, the Chief J. would be within his
rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either
directly from the Judge concerned or from other reliable sources. The executive cannot and
ought not to establish rapport with the Judges which is the function and privilege of the Chief J..
In substance and effect, therefore, the Judge concerned cannot have reason to complain of
arbitrariness or unfair play, if the due procedure is followed.50

ARTICLE 224 - Appointment of additional and acting Judges

(1) If by reason of any temporary increase in the business of High Court or by reason of arrears
of work therein, it appears to the President that the number of the Judges of that Court should be
for the time being increased, the President may appoint duly qualified persons to be additional
Judges of the Court for such period not exceeding two years as he may specific

(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for
any other reason unable to perform the duties of his office or is appointed to act temporarily as
Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court
until the permanent Judge has resumed his duties

(3) No person appointed as an additional or acting Judge of a High Court shall hold office after
attaining the age of sixty two years.51

Art. 224 empowers the President to appoint duly qualified persons to be additional Judges, if it
appears to him by reason of any temporary increase in the business of a High Court or by reason
of arrears of work therein that the number of Judges of that Court should for the time being be
increased. The two occasions when an additional Judge can be appointed are those mentioned in
Art. 224(1) of the Constitution, namely, (i) a temporary increase in its business or (ii)
accumulation of arrears of work in the High Court concerned.

The number of such additional judges required for each High Court for the purpose of dealing
with the arrears will have to be fixed in consultation with the Chief J. of India and the Chief J. of
the State High Court after taking into consideration the arrears in the particular court, their nature

50
Supra 45
51
Supra 45

32 | P a g e
and the average disposal of that court. The number of additional judges to be fixed for this
purpose should be such as to enable the arrears to be cleared within a period of two years.52

52
Supra 45

33 | P a g e
CHAPTER 6

CONCLUSION

It is important to bear in mind that the independence of the judiciary is one of the central values
on which our Constitution is based. No other constitutional agency is shielded as are the superior
courts in our country with so many built-in safeguards. The judges can, if they choose to, be
guided by the doctrine of conscience only while discharging their duties. They are not expected
to be under any kind of external pressure.53 They are circumscribed by 'expectations of neutrality
and impartiality and by the traditions of the legal profession which is always keeping a watchful
eye on every action of a Judge. In all countries where the rule of law prevails and the power to
adjudicate upon disputes between a man and a man, a man and the State, a State and a State, and
a State and the center, is entrusted to a judicial body, it is natural that such body should be
assigned a status free from capricious or whimsical interference from outside and the judges who
constitute it should be granted a security of tenure that lifts them above the fear of acting against
their conscience.54

The question of transfer of judge from one High Court to the other was raised in the three judge
case. The question has now been finally settled that before transferring a judge from one High
Court to another, the opinion of chief J. of India has primacy. The word consultation is to be
understood as concurrence. However the CJI must take into account the view of the following
people:

Chief J. of HIGH COURT from which judge is being transferred.

Chief J. of HIGH COURT to which judge is being transferred
Any senior judge of the SC as the CJI thinks fit.

In case of transfer of judge, the consent of the judge who is to be transferred is not required.

The CJI should recommend or decide on transfer only in the public interest and for the interest of
J. and not by way of punishment for the concerned judge.

The consultation with three people & also the transfer in public interest these provisions are type
of check and balance.

The Legislature has been conferred with powers for the constitution to enact laws at the same
time, the constitution also provides for certain rights to the citizens. The Independence of
Judiciary has been provided by the constitution to maintain of Judiciary and to maintain balance
between the legislative-powers and the rights of the citizens. The legislature must understand that

53
http://mulnivasiorganiser.bamcef.org
54
The international and comparative law quarterly, Vol. 33, No.4 (Oct 1984), Jill Cottrell

34 | P a g e
it cannot indirectly interfere with the Independence of the Judiciary and its functioning, which is
against the spirit of the constitution.

The Constitution fully safeguards the independence of Judges as also of the judiciary by a three-
fold method; First, by guaranteeing complete safety of tenure to Judges except removal incases
of incapacity or misbehavior which is not only a very complex and complicated procedure but a
difficult and onerous one. Secondly, by giving absolute independence to the Judges to decide the
cases according to their judicial conscience without being influenced by any other consideration
and without any interference from the executive. Thirdly, so far as the subordinate judiciary (is
concerned the provisions of Arts, 233-236 vest full and complete control over them in the High
Court.

35 | P a g e
CHAPTER - 7

SUGGESTIONS

Appointment of Judges is a cardinal process in a democratic country like India and it should
be done with utmost care and caution. In a country like India where government is the biggest
litigator and the judiciary is the only wing which can provide J. to the people of without
any fear, therefore judges should not be under any political influence. Independence of Judiciary
& separation of power should be considered while formulating a process in which judges are
supposed to be appointed. Though the constitution of India explicitly states about the
appointment of Judges under Art. 124 & 217, but it was not enough to suffice the purpose
of appointments because of the arbitrary actions taken by the executive and made some non-
competent appointment as per there won whims and fancies. There must be absolutely
transparency in the appointment and transfer of the judges of High Court and SC.
The existing system of appointments to the superior judiciary, through a collegium of senior
judges in High Courts and the SC suffers from perceived deficiencies in quality, being an in-
house process. We will seek to discuss with the SC Chief J. to identify and action any
opportunities for improving the system of appointment of judges, including (if necessary)
through reforms. A key to judicial appointments should be the deep held commitment of judges
to liberty, including freedom of speech.55

55
http://www.jstor.org/stable/759574

36 | P a g e
BIBLIOGRAPHY

Books Referred:

Indian Constitutional Law by MP Jain

Constitution of India by Durga Das Basu
Constitutional Law by P.M bakshi
V.N Shuklas Constitutional of India by Mahendra Pal Singh

Online Database:

Jstor .
Manupatra
Westlaw

Articles:
The judges transfer case, Jill Cottrell, The International and
Comparative Law Quarterly, Vol. 33, No. 4 (Oct., 1984)

Websites:
https://www.Art.19.org/resources.php/resource/3294/en/india:-s.p.-gupta-
v.-president-of-india

https://globalfreedomofexpression.columbia.edu/cases/s-p-gupta-v-union-
of-india/

http://archive.indianexpress.com/news/the-collegium-controversy/836029/

37 | P a g e