Choosing Hammurabi for Indian Supreme Court: The Journey of Tussle between Judiciary and Executive

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Choosing Hammurabi for Indian Supreme Court: The Journey of Tussle between Judiciary and Executive

“It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions.[1]


The Independence of Judiciary is sin qua non for any democratic country. The process of appointment of Judges in this prestigious institution is governed by the grundnorm of the country i.e. Constitution of India. But, since the Constitution does not lay down any specific procedure, the appointments were made under the collegium system which was often criticised. To end the nepotism and with aim of bringing reform in the system of appointments, the Government decided to devise a new constitutional authority — the National Judicial Appointments Commission (NJAC). The purpose of NJAC was to establish a more transparent system and eliminate the sense of partiality that had crept into the collegium. However, it was challenged and held unconstitutional by the Hon’ble Supreme Court. The journey of cases regarding the appointment of judges and present mode of appointment of judges is hereinafter discussed.


The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, Judges who can make decisions independent of the political winds that are blowing.[2]

The independence of judiciary was undermined to great extent during the time of Emergency. There were large scale transfers of judges and in fact a list of 56 Judges to be transferred, without their consent, was prepared. This was challenged in the Court in Union of India v. Sankalchand Himmatlal Seth[3] .The Supreme Court struck down the action of the Union. The word ‘transfer’ was given a narrow interpretation in order to maintain the independence of judiciary. The Supreme Court was called upon to safeguard the independence of judiciary from undesirable appointments and arbitrary transfers by the executive through 4 cases- popularly known as the First, Second, Third and Fourth Judge’s case.

  • First Judges Cases

The concept of ‘collegium’ is the result of interpretation of proviso clause of Art. 124(2) of Constitution of India. Bhagwati, J. in S.P Gupta case first suggested the scheme of collegium to make recommendation to the President for the appointment of Judges. S.P. Gupta v. Union of India[4] is popularly termed as First Judges case. It was held by the Supreme Court that President (read Central Government or Counsel of Ministers under Art. 74) is not bound by the opinion rendered by CJI in matter of appointment of SC judge.

  • Second Judges Cases

In Supreme Court Advocates-on-Record Assn. v. Union of India[5](popularly known as Second Judges Cases), held that the opinion of the CJI, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments: and no appointment can be made by the President to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the CJI formed in the manner indicated. The “manner indicated” was that the opinion given by the CJI in consultative process has to be formed taking into account the views of the two senior most judges of the Supreme Court, and the CJI is also expected to ascertain the views of a 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 from the same High Court. Similarly in matters relating to the appointment in the High Courts, the CJI is expected to take into account the views of the colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court.

  • Third Judges Cases

Later on, in case of Special Reference No.1 of 1998 In Re Presidential Reference(Third Judges Case) the collegiums system again came under the scanner of Supreme Court. M.M. Punchhi, the dissenting judge in the Second Judge’s case became the C.J.I. in 1998. He was terribly upset with the majority opinion in the Second Judge’s case. When he became the Chief Justice, he tried to get away from the ruling and in a matter of transfer of five High Court judges he made his recommendations without consulting the two senior most judges at that time, namely A.S. Anand and S.P. Bharucha, JJ .At the onset of hearing, the Union of India through its Attorney General said that the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case[6]. The nine judge bench, in unanimity speaking through S.P. Bharucha,J upheld the major premise of Second Judges case. It expanded the strength of the collegium from two to four. This is necessary for appointments for judges of the Supreme Court or to transfer a High Court Chief Justice or a High Court judge. In the case of an appointment to the High Court, the recommendation shall be made in consultation with the two senior most puisne judges of the Supreme Court. Further, the strong cogent reasons do not have to be recorded for a departure from the order of seniority in respect of each senior judge of the High Court who had been passed over for the appointment to the Supreme Court. What has to be recorded is the positive reason for the recommendation.

  • Evolution of National Judicial Appointment Commission

On 16th October, 2015 the judiciary took a tough stand and stuck down the 99th Constitutional Amendment of 2014 in the Supreme Court Advocates on Record Association v. Union of India (4th Judges case); a move which is celebrated by many pro-judicial independence supporters and frowned upon by those who believed the democracy to be the heart and soul of the Constitution. The amendment was declared unconstitutional by a majority of 4:1 with Chelameswar J. giving a dissenting opinion in favour of the retentionist view[7]. The 4th Judges Cases held that there must there must be Memorandum of Procedure(MoP) for appointment of judges. The Central Government still has to finalize the MoP in consultation with the CJI, after considering the revised guidelines proposed by SC which is the bone of contention between the government and judiciary. Currently, the judges are appointed by way of MoP which is there on the website of Department of Justice[8]


These are the most pressing changes that have to be brought in the collegium to free it from the many evils it festers. They are as following: i. Transparency ii. Eligibility of the judges iii. Secretariat iv. Complaint Mechanism. The latest 4th Judges case might have given the upper hand to the Judiciary in the matter of appointment of judges, but it has raised substantial question on its slowly growing power of judicial review. Indian judiciary has emerged out to be one of the most powerful judiciaries in the world. And example can be seen in this case itself. Judiciary being the sole interpreter of the Constitution and the determinant of the basic structure has endowed itself with such exemplary power which is not healthy for any democratic country.

[1] Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 at page 402.

[2] Citizens’ Committee for an Effective Constitution.”, Aug. 2018, Accessed 08 Oct. 2018.

[3] Union of India v. Sankalchand Himmatlal Seth (1978) 1 SCR 423.

[4]  S.P. Gupta v. Union of India 1981 Supp SCC 87.

[5] Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.

[6] Special Reference No.1 of 1998 In Re Presidential Reference AIR 1999 SC 1, 15 at para.9

[7] Accessed 08 Oct. 2018.

[8] “Memorandum of procedure of appointment of Supreme Court Judges.”, 2018 Jan. 2018, Accessed 08 Oct. 2018.

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