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Independency of Judiciary and Appointment of Judges

  Ch.Vijay*

ABSTRACT

Collegium system under which appointments and transfers of judges are decided by a

forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has

no place in the Indian Constitution. The system has its genesis in a series of three judgments that

is now clubbed together as the "Three Judges Cases".

The S P upta case! the "irst Judges Case declared that the "primacy" of the CJI#s

recommendation to the President can be refused for "cogent reasons". This brought a paradigm

shift in fa$our of the e%ecuti$e ha$ing primacy o$er the judiciary. &n &ctober '! ())*! came a

nine-judge bench decision in the "Second Judges Case". It o$erturned the S P upta judgment!

saying "the role of the CJI is primal in nature because this being a topic within the judicial

family! the e%ecuti$e cannot ha$e an e+ual say in the matter. In ()),! President /arayanan

issued a presidential reference to the Supreme Court as to what the term "consultation" really

means. In reply! the Supreme Court laid down nine guidelines for the functioning of the coram

for appointments0transfers1 this came to be the present form of the collegium .This was the

"Third Judges Case".

It was critici2ed that collegium is a closed-door affair without a formal and transparent

system. 3ater /ational Judicial 4ppointment Commission 5/J4C6 consisted of si% persons! CJI!

Two other senior judges of the Supreme Court ne%t to the CJI! The 7nion 8inister of 3aw and

Justice! Two eminent persons. The major lacuna is that a decision could be $etoed by two

members rejecting names unanimously appro$ed by the remaining four 8embers of the

 /J4C. 8ajority upheld the collegium system and struc9 down the /J4C declaring the ))th

4mendment and /J4C 4ct unconstitutional. The Supreme Court upheld that it is open to bring

greater transparency in the collegium system. :ow the collegium can be made transparent; The

fi%ing of the eligibility criteria for a person to be considered suitable for appointment as a judge;

https://en.wikipedia.org/wiki/Minister_of_Law_and_Justice_(India)https://en.wikipedia.org/wiki/Minister_of_Law_and_Justice_(India)https://en.wikipedia.org/wiki/Minister_of_Law_and_Justice_(India)https://en.wikipedia.org/wiki/Minister_of_Law_and_Justice_(India)

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4 process to recei$e and deal with complaints against judges without compromising on judicial

independence;

..4mbed9ar College of 3aw! 4ndhra 7ni$ersity! ?isa9hapatnam.

@-mail IdA $ijjy.chBgmail.com! CellA )D,E(*'(

mailto:vijjy.ch@gmail.commailto:vijjy.ch@gmail.commailto:vijjy.ch@gmail.com