Judiciary, Executive should have equal say in appointments: Law Commission

Supreme Court of India


Even as the Supreme Court indicated on Monday the need for revisiting the 1993 judgment providing for collegium system of judicial appointments, it is relevant to take note of the Law Commission recommendations, made in 2008, suggesting a review of the verdict. The previous Commission, during the tenure of Justice A.R. Lakshmanan, in its 214th report, suggested an equal role for the Judiciary and the Executive in the selection and appointments to High Courts and the Supreme Court.

The Commission, after analysing the appointments made over 15 years (from 1993 to 2008), suggested that the three Supreme Court judgments of 1982, 1993 and 1998 be reconsidered to bring about clarity and consistency in appointments.

The report, analysing the position in various countries, said: “In all other Constitutions either the Executive is the sole authority to appoint judges or the Executive appoints [judges] in consultation with the Chief Justice of the country. The Indian Constitution has followed the latter method. However, the ‘second judges case — Advocates on Record Association vs. the Union of India‘ — of 1993 has completely eliminated and excluded the Executive and the opinion of the Supreme Court in the presidential reference of 1998 has reaffirmed this view with slight modifications.”

The recommendation for urgent and immediate review of the present procedure of appointment of judges was reinforced by Justice J. S. Verma, former CJI, who had written the lead judgment in the 1993 case, himself in an interview to Frontline (October 10, 2008 issue).

Justice Verma said: “My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required.”

Quoting this interview, the Commission, said: “The Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”

In every High Court, the Chief Justice “is from outside the State as per the policy of the government. The seniormost judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and, more often than not, appointments suffer from lack of adequate information,” the Commission pointed out.

Two alternatives

Therefore, “two alternatives are available to the government. One is to seek a reconsideration of the three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the CJI and the power of the Executive to make the appointments.”

Restoring the balance between the Judiciary and the Executive would improve the quality of selection and appointments, the report said.


The Supreme Court is to consider 10 questions on the issue of review of its 1993 and 1998 judgments, which gave primacy to the judiciary in appointments of judges. A Bench of Justices Deepak Verma and B.S. Chauhan on Monday took note of the questions raised in the Suraz India Trust’s writ petition, as framed by amicus curiae A.K. Ganguly, and referred the matter to Chief Justice S.H. Kapadia for appropriate directions.

The questions are:

Whether the two verdicts really amount to amending Article 124(2) of the Constitution;

Whether there is any ‘collegium’ system for appointing Supreme Court or High Court judges in the Constitution;

Whether the Constitution can be amended by a judicial verdict or only by Parliament in accordance with Article 368;

Whether the constitutional scheme is that the Supreme Court and High Court judges can be appointed by mutual discussions and consensus between the judiciary and the executive; or whether the judiciary alone can appoint judges;

Whether the word ‘consultation’ in Article 224 means ‘concurrence’;

Whether by judicial interpretation words in the Constitution can be made redundant, as it appears to have been done in the 1993 and 1998 decisions which have made consultation with High Court judges redundant while appointing a Supreme Court judge despite the fact that it is permissible on the clear language of Article 124(2);

Whether the clear language of Article 124(2) can be altered by judicial verdicts and, instead of allowing the President to consult such judges of the Supreme Court as he deems necessary (including even junior judges), only the Chief Justice of India and four seniormost judges of the Supreme Court can be consulted while appointing a Supreme Court judge; whether there is any convention that the President is bound by the advice of the CJI, and whether such convention (assuming there was one) can prevail over the clear language of Article 124(2);

Whether the CJI’s opinion has any primacy in the aforesaid appointments; and

Whether the two decisions should be overruled by a larger Bench.



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