Appointment Of Judges
2015 (4) J-88

Sh. S.S. Lehar, Sr. Advocate of J&K High Court & the Supreme Court of India, in response to the Public Notice issued by the Joint Secretary to the Govt. of India, Department of Justice, Ministry of Law and Justice, New Delhi seeking suggestions for improving the working of Collegium System in the matter of appointment of Judges in the Supreme Court of India& the High Courts in the States, has given his suggestions to the Hon’ble Supreme Court of India in which he has said that Article 124 of the Constitution of India deals with the Establishment and Constitution of the Supreme Court and Clause 2 of Article 125 says that every Judge of the Supreme Court shall be appointed by the President by Warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary, and shall hold the office until he attains the age of 65 years. It is further provided that in case of appointment of Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
The power of appointment lies with the President of India and the consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposes. It is also provided that in case of the appointment of a Judge other than the Chief Justice, the Chief Justice of India shall be consulted. Now, by the judgment of the Supreme Court, i.e. Advocates on record Versus Union of India (AIR 1994 SC 268) it has been made mandatory that there shall be a Collegium of the Judges of the Supreme Court.
As a matter of fact the word ‘Collegium’ does not exist in the Constitution of India. It is provided that in case of appointment of judges other than the Chief Justice, the Chief Justice of India shall always be consulted. The word ‘consultation’ and what does it mean, has been a matter of controversy in legal fraternity. It was in the year 1982 in the case S.P. Gupta Versus Union of India, the Hon’ble Supreme Court of India has held that consultation must be effective and implies exchange of views after examining the merit but does not mean concurrence. So the power for appointment of Judges lied with the President of India. However, in the case ‘Advocates on record Versus Union of India’ (AIR 1994 SC 268) the Hon’ble Supreme Court took a view that the consultation means concurrence and there will be a Collegium of Chief Justice and of the Supreme Court Judges who will recommend the name to the Union of India for appointment of a person as Judge of the Hon’ble Supreme Court of India and the Union of India can disagree and send the proposal back to the Collegium and if the Collegium again recommends a person, that recommendation will be binding on the Union of India. The Collegium system has been created by the judgment of the Hon’ble Supreme Court and the Hon’ble Supreme Court got the final power of the appointment of Judges through the judgment. In the year 1998 the President of India sought the Courts’ opinion of nine Judges Constitution Bench relating to a person to be appointed as Judge of the Supreme Court of India and Article 125 of the Constitution of India says ‘not the senior most Judges’ the President may consult ‘such Judges’. So it is the discretion of the President of India to consult any Judge. Now it has become final that the appointment will be made through the Collegium system. To make the appointments transparent, effective and democratized and also in con- sonance with the Article 125 of the Constitution of India, the following suggestions are made:-
1. That while appointing a person as a Judge of the Supreme Court, apart from the Collegium, the recommendation should also be sought from the Chief Justices of the High Courts as the President may think so and in case the name of the Chief Justice is being considered, in that eventuality, apart from the Collegium of the Supreme Court of India at least the opinion of half of the Chief Justices of the High Courts of the country should be sought. Each Judge of the Collegium must consult three senior most advocates and those senior most advocates should consult ten persons of legal fraternity including the academicians and persons of different walks of life. Their opinion must also be part of the recommendations and the recommendation of the Collegium should consider the recommendations of the senior most advocates who have consulted the persons of different walks of life.
In the case of appointing Chief Justice of India the Collegium must also adhere to the same principle and half of the Chief Justices of the different States should also adhere to the same principle.
2. That the reasons for recommending a person should be transparent and should be made part of the recommendations and the recommendations of the advocates should also be part of the recommendations.
3. That while appointing the Judges of the High Court under Article 217 of the Constitution of India the Collegium must consult three senior mos t advocates and each senior most advocate should consult eight persons including the academicians, persons having legal knowledge and persons of eminence in different fields of life. The recommendation of the Collegium should be transparent and must be based on the opinion of senior most advocates which is further based on the consultation of at least eight persons of eminence of different walks of life.
4. That for appointment as Chief Justice of a High Court, the Supreme Court Collegium should consult at least three advocates of different High Courts where the person to be appointed has worked as Judge of the High Court and the senior most advocates should consult at least eight persons of eminence and they should give their opinion in a transparent manner which should be part of the recommendations.