APPOINTMENT OF JUDGES IN THE HIGHER JUDICIARY IN INDIA: AN ANALYTICAL STUDY Dissertation submitted to National Law University, Assam in partial fulfilment for award of the degree of MASTER OF LAWS Supervised by Dr. Ishrat Husain Associate Professor of Law Submitted by Deboleena Dutta ID: SF0217005 Year & Semester: One Year LLM Degree programme & 2nd Semester National Law University, Assam 30th June 2018 SUPERVISOR CERTIFICATE It is to certify that Ms Deboleena Dutta is pursuing Master of Laws (LL.M.) from National Law University, Assam and has completed her dissertation titled “APPOINTMENT OF JUDGES IN THE HIGHER JUDICIARY IN INDIA: AN ANALYTICAL STUDY” under my supervision. The research work is found to be original and suitable for submission. Date: 30.06.2018 Dr. Ishrat Husain Associate Professor of Law DECLARATION I, Deboleena Dutta pursuing Master of Laws (LL.M.) from National Law University, Assam, do hereby declare that the present dissertation titled “APPOINTMENT OF JUDGES IN THE HIGHER JUDICIARY IN INDIA: AN ANALYTICAL STUDY” is an original research work and has not been submitted, either in part or full anywhere else for any purpose, academic or otherwise, to the best of my knowledge. Date: 30.06.2018 Deboleena Dutta UID: SF0217005 ACKNOWLEDGEMENT Writing this thesis has been fascinating and extremely rewarding. I would like to thank a number of people who have contributed to the final result in many different ways: To commence with, I pay my obeisance to God, the almighty to have bestowed upon me good health, courage, inspiration, zeal and the light. After God, I express my sincere and deepest gratitude to Prof (Dr.) J.S. Patil, Vice-Chancellor, National Law University and Judicial Academy, Assam. I owe my most sincere gratitude to my supervisor, Dr. Ishrat Husain, Associate Professor of Law, National Law University and Judicial Academy, Assam who ploughed through several preliminary versions of my text, making critical suggestions and posing challenging questions. His expertise, valuable guidance, constant encouragement, affectionate attitude, understanding, patience and healthy criticism added considerably to my experience. Without his continual inspiration, it would have not been possible to complete this study. I am highly thankful to all the teaching faculty of National Law University and Judicial Academy, Assam who are always there catering to our needs and queries. I gratefully acknowledge the Library Staff of NLUA who has helped in getting access to the research literature. I owe my special thanks to my friend Mr. Partha Shankar Biswas for his valuable guidance that has been very helpful for this study. I sincerely express my deep sense of gratitude and respectful regards from the core of my heart to my parents who formed part of my vision and taught me the good things that really matter in life. The happy memory of my parents still provides persistent inspiration for my journey in this life. Deboleena Dutta (SF0217005) 2nd Semester One year LLM Degree Programme NLU, Assam PREFACE Judiciary, the justice delivery system resorted to by the common man for his legal and moral rights are at its zenith in Indian democracy. It is seen as the epitome of justice delivery system in India. But there has been dissent with respect to appointment of judges to various High Courts and Supreme Court of India. The existing collegium system of judges exercising absolute powers to appoint judges lacks complete transparency in the procedure and process of appointments. Nobody outside the system knew about the appointments of the few while the rejection of other few. The absolute power is vested with the judges. Lord Acton’s words, “Power tends to corrupt and absolute power tends to corrupt absolutely” rightly proves this very same fact. Hence a new attempt was made to make the system more transparent and effective. Such an initiative was the adoption of National Judicial Appointments Commission (NJAC) and it later turned out to be bigger controversy. The past few years saw a long standing legal battle between the executive and the judiciary regarding the appointments to various High Courts and Supreme Court of India. In order to deal with the situation, the Court held the NJAC as unconstitutional and void. The work seeks to analyze the juridical history of judicial appointments in India, the proposed new system of National Judicial Appointments Commission (NJAC) and the battle surrounding it. The writer with the help of various secondary sources such as books, published articles, and other works has analyzed the above positions. According to the writer, both the NJAC and the collegium system are far from perfect. But, the stand taken by the writer is that NJAC has the potential to become perfect system after curing its minor defects. ********** TABLE OF CONTENTS CONTENTS PAGE NO. Table of Cases i Table of Statutes ii Table of Abbreviations iii 1. Introduction 1 1.1. Introduction 1 1.2. Need and Justification of the Study 9 1.3. Definition of the Key Terms 9 1.3.1. Independence of the Judiciary 9 1.3.2. Collegium System 9 1.3.3. National Judicial Appointments Commission (NJAC) 10 1.4. Research Problem 10 1.5. Literature Review 10 1.6. Aims and Objectives of the Study 12 1.7. Scope and Limitation of the Study 12 1.8. Hypothesis 13 1.9. Organization of the Study 13 1.10. Research Methodology 15 1.10.1. Research 15 1.10.2. Research Methodology 15 1.10.3. Legal Research Methodology 16 1.10.4. Research Consideration of the Present Study 17 2. Historical Evolution of the Method of Appointment of Judges 18 of the Higher Judiciary in India 3. Judicial Appointment in India: Constitutional Provisions and 24 Judicial Approach 3.1. Introduction 24 3.2. Appointment of Judges of the Supreme Court 25 3.3. Appointment of Judges of the High Court 25 3.4. Discrepancies in the Appointment of Judges Before 1993 27 3.5. Judicial Interpretation 30 3.5.1. Union of India v Sankal Chand Himatlal Sheth 30 3.5.2. S.P. Gupta v Union of India 32 3.5.3. Subhash Sharma v Union of India 35 3.5.4. Supreme Court Advocates-on-Record Association v Union of 36 India 3.5.5. In Re: Special Reference 40 3.6. Reflective Judiciary 44 3.7. Merits of the Collegium System 47 3.8. Demerits of the Collegium System 48 4. The National Judicial Appointments Commission (NJAC) 51 4.1. Models of Judicial Appointment: An International Move to the 51 JAC Model 4.2. National Judicial Appointments Commission 52 4.2.1. Composition of the National Judicial Appointments 53 Commission 4.2.2. Functions of Commission 54 4.2.3. Power of Parliament to make law 54 4.2.3.1. Procedure for Selection of Judge of Supreme Court 55 (Section 5) 4.2.3.2. Procedure for Selection of Judge of High Court (Section 6) 55 4.2.3.3. Power of President to Require Reconsideration (Section 7) 56 4.3. Judicial Interpretation 56 4.3.1. Supreme Court Advocates-on-Record-Association and 56 Another v Union of India 4.3.2. Judicial Independence in the Indian Constitution 58 A. Judicial Primacy in the Constitution 58 1. The Constituent Assembly Debates 59 2. An Autonomous Role for the President 62 3. Presidential Authority in the NJAC Judgement 65 B. Judicial Primacy as Part of the Constitution’s “Basic Structure” 68 1. The Emergence of Basic Structure 68 2. The Battle over Judicial Appointments 70 3. Establishing Judicial Supremacy: The Three Judges Cases 74 C. The Collegium System in India 77 4.4. Merits of the National Judicial Appointments Commission 81 4.5. Demerits of the National Judicial Appointments Commission 83 4.5.1. Preamble and Object 83 4.5.2. Procedure for Discharge of National Judicial Appointments 83 Commission Functions Inadequate 4.5.3. Merit Based Appointment 83 4.5.4. Diversity 84 4.5.5. Independence of the Judiciary 84 4.5.6. Article 124C of the Indian Constitution 85 4.5.7. Eminent Persons 85 4.5.8. Appointment of High Court Judges 85 4.5.9. No Reasons for Recommendation of Candidate 86 5. Comparative Analysis of the Law Relating to Judicial 87 Appointment in other Countries 5.1. The Executive Role in Judicial Appointments 88 A. USA 88 B. Australia 89 C. New Zealand 89 D. Canada 89 5.2. Recent Judicial Reforms: Toward Independent Commissions 90 and Greater Transparency A. United Kingdom 90 B. South Africa 91 C. Canada 92 D. Australia 93 E. Israel 93 6. Recent Controversies of the Collegium System of the 95 Appointment of Judges in India 6.1. A Cathartic Episode for the Higher Judiciary in India 95 6.2. Judges Appointment-A Ping Pong Game? Is Indefinite Sitting 97 Over The Files Choking The Judicial System? 6.2.1. Definite Timelines for Judicial Appointments 99 6.3. Appointment to Supreme Court: Case of Justice K.M. Joseph 102 and Senior Advocate Indu Malhotra 6.4. Collegium Vs Centre: Facts And Figures Show That Centre’s 111 Reasons for Non-elevation of Justice KM Joseph Are Weak 6.4.1. Nine instances when two or more judges in Supreme Court 111 were from Kerala 6.4.2. Delhi has had more judges in SC despite lower judiciary 113 strength 6.4.3. Seniority argument is also not correct 113 6.4.4. Centre’s argument on filling the post with a SC/ST judge also 114 weak 7. Conclusion 115 7.1. Findings 115 7.2. Recommendations 118 A. Preamble and Object 118 B. Procedure for Discharge of National Judicial Appointments 118 Commission Functions Inadequate C.