Constitution of any country basically gives the details regarding the fundamental or basic or apex organs of government and administration which describes the structure, composition powers, functions and duties and other relevant information. 1 In a similar way, the Constitution of India provides for three main institutional components which are legislative, executive and the third and the most important nowadays is the judiciary. In any country, the judiciary plays a very important role in interpreting and applying the law and adjudicating the matter between the parties. Since India has a federal structure so here judiciary also adjudicates the matters between the center and the states and between two states. Judiciary even acts as the guardian of the Constitution of India as Hon’ble Justice Untwalia has compared the judiciary to “a watching tower above all the big structures of the other limb of the state from which it keeps like a sentinel on the functions on the functions of the other limbs of the state as to whether they are working in accordance with the law and the constitution, the constitution is the supreme”.2

As far as the Indian judiciary is concerned, it is a unified judicial system with the Supreme Court is the apex court and the High Court for the States and the District Courts for every district so that no person in India is deprived of justice and that there is a proper hierarchy of appeals.


Constitution of India provides for the independence of judiciary because India is a federal structure and to have a federal structure one of the basic requirements is that of independence of the judiciary. Independence of the judiciary is recognized by the apex court as the basic structure in the famous case Keshavananda Bharati 3 and same has been followed even today.

The most controversial issue in the Indian judiciary is the appointment of judges in the High Court and the Supreme Court. Basically, the appointment of judges can be divided into two phases—position pre-1993 and position post-1993.


Earlier the President’s power to appoint the judge was absolute in the sense that only the concern minister i.e., Law Minister, has a say in the appointment and consultation with the Chief Justice was a formality and the view expressed by the Chief Justice was not binding on the President. Hence, it would not be wrong to say that it was the executive who has the right to appoint judges on its own.


The said scenario changed after the famous judgment in the year 1993 which was the third judgment in this regard as the question was raised that if the executive continues to appoint the judges then it would harm the independence of the judiciary and hence in the case of Subhash Sharma v. Union of India 4, the court basically gave emphasis on the role of Chief Justice in the appointment as the word consultation under article 124(2) was interpreted and held as “Consultation with the CJI under the first proviso to Article 124(2) as well as under Article 217(1) is a mandatory condition, the violation of which would be contrary to the constitutional mandate. Therefore, the executive will not be justified in enjoying the supremacy over the opinion of the CJI in the matter of selection of Judges to the superior judiciary”. The court later referred the said question to the larger bench and in the case of S. C. Advocates on Record Association v. Union of India 5 the court restricted the power of the executive and giving power to the collegium of CJI and 5 senior most judges in Supreme Court and Chief Justice and 3 senior most Judges in High Court and this finally rendered by the court in third judges case. 6

The collegium system was considered as over-reaching of the judiciary and hence, the government came up with the National Judicial Appointment Act, 2014 which was declared unconstitutional by the apex court 7 where Hon’ble Justice Khehar gave reasoning that the said act is violative of independence of the judiciary which is the basic structure as per the Keshavananda Bharati. 8

When the said judgment was passed by the apex court then people started doubting the credibility of the collegium system. The court also emphasized that the system should be more transparent with respect to the appointment of judges in the collegium system. When this judgment was passed then many learned Judges gave mixed opinion some said now it’s the time to change the procedure for appointment as it is promoting nepotism which is the main issue with respect to collegium system and some were saying the system is good but it needs to be more transparent.


It would be wrong to say that the collegium system is promoting nepotism and it is also true there is a need for transparency with respect to the appointment of judges of Supreme Court and High Courts. As far as the government’s step taken in the year 2014 for creating a commission for appointment is concerned, it would be effective, as the members would not be aware of the candidates’ strength or weakness. It is the only judges who know about the candidate, whether he is competent to be elevated as High Court Judge or Supreme Court Judge. In order to make it more reachable for every advocate one thing can be done.

There are many people who are interested in elevation, doesn’t matter whether they are competent or not which results in losing credibility in the collegium system and hence they start questioning the institution. So, it is better to not give a chance to them to criticize this system. The one thing which we can do is that we can introduce an exam before the collegium meet in the sense that we can make it reachable and whoever practicing advocate having 10 years of experience have to give that exam then if that candidate is on the merit list then the collegium will decide whether that candidate is competent to be elevated or not. For instance, say there are 10 vacancies in the Allahabad High Court and collegium cannot consider each and every advocate where around 10,000+ advocates are practicing so what can be done is. There should be an exam in order to sort list the interested candidates. Let’s say a number of applied candidates are 100 then the examining authority can say that only top 50 will be eligible for the interview which will be taken by a panel of competent legal scholars. In which only 25 candidates will be shortlisted and later, the collegium will meet in order to select candidates who are suitable to be elevated as the Judge of the High Court. It would be an easy procedure to select out of 25 rather than that of 10000+ practicing advocates for the elevation as the judge.

The question can come before us that what about the independence of the judiciary when we will follow this system? Then it is important to point out here that in the famous judgment it has been held that consultation with the CJI is mandatory for the appointment of judges and executive will not be enjoying the supremacy over the opinion of the CJI in the said matter. So as far as the procedure is concerned then it is the collegium of CJI and senior most judges who will appoint the judges in the superior judiciary and hence, it will not be violative of independence of judiciary which is the basic structure of the constitution 9 as the apex court struck down the NJAC, 2015 being violative of basic structure and as per Justice Khehar clause (a) and (b) of the Article 124 A of the constitution were insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of judges. 10

If we take the current scenario, where the Law Ministry recently probed an inquiry by the Intelligence Bureau in order to see whether the said appointment is actually provoking the nepotism in the judicial appointment. If the above-mentioned test was in practice then the said issue would not have arisen and the scene would be different and it would have saved the time as well as an expense which will be wasted on inquiry and also the appointment would have been made on time as it is a present requirement.


At last, this procedure hopefully will meet all the criteria which are set by the apex court in order to preserve the independence of judiciary which is the basic structure of the constitution and the said procedure will help the collegium to find the cream of the crop, in other words, to get the finest and intelligible and best of the best judges for the Indian Judiciary which is the need of the Indian Judiciary. It is only the CJI and 4 senior-most judges of the apex court will have the say at last to appoint the judges of the Supreme Court and CJ of the High Court and other judges of the High Court.


  1. Wade & Philips, Const. & Adm. Law, 1, 5 (IX Ed. ed. Bradley).
  2. Union of India v. Sankalchand Himatlal Sheth, A.I.R. 1977 S.C. 2328.
  3. Keshavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
  4. A.I.R. 1991 S.C. 631.
  5. A.I.R. 1994 S.C. 268.
  6. In re Special Reference on Art. 143, A.I.R. 1999 S.C. 1.
  7. C. Advocates on Record Association v. Union of India, (2016) 5 S.C.C. 1.
  8. Supra note 3.
  9. Id.
  10. Supra note 7.
  11. The Times of India, Page no. 1, dated 15.04.2018.