India the largest democracy of the world which is governed by a written constitution. Indian democracy is supported by its three pillars, i.e, Legislature, Executive and Judiciary. All three together constitute what is called “The Check and Balance “wing to keep the Governance of our Democracy on even keel. However in a country, Judiciary plays a prominent role of interpreting and applying the law and adjudicating upon the dissensions between one citizen and another and between a citizen and the state.
In a country like India with a written constitution, judiciary have the additional function of safeguarding the supremacy of the Constitution by interpreting and applying its provision and keeping all authorities within the constitutional framework. An authority which is entrusted with such great responsibilities should be independent, impartial, honest and competent and thus judicial appointment should aim at to provide a reliable means for identifying the persons possessing these qualities, and to do it in a legitimate manner, in order to sustain public confidence in the judiciary.
Three Judges Case
In case of appointment of the Chief Justice of India, till 1973, the practice was to appoint the senior most Judge of the Supreme Court as the Chief Justice of India. In 1956, the Law Commission headed by the then Attorney General M.C Setalvad had criticized this practice and recommended that in appointing the Chief Justice of India the experience of a person as judge, his administrative competence and merit should be judged and seniority should not be the main consideration.
Instead of this report the Government continued this practice but, on April 25, 1973, however, this 22 years old practice was suddenly broken by the Government by appointing Mr. A. N Ray as Chief Justice of India by superseding three of the senior colleagues. The Supreme Court Bar Association condemned the action of Government as a blatant and outrageous attempt and undermining the independence and impartiality of the judiciary and lowering the prestige and dignity of the Supreme Court.
Considering the same matter in S.P Gupta v Union of India
it was held that the meaning of the word ‘consultation’ in Article 124(2) is the same as the meaning of the word ‘consultation’ in Article 212 and Article 222 of the Constitution and the word ‘consultation’ meant full and effective consultation. The decision of the Government can be challenged on the basis that it is based on mala fide and irrelevant consideration, i.e., when constitutional functionaries expressed an opinion against the appointment. This means that the ultimate power to appoint judges is vested in the Executive from whose dominance and subordination it was sought to be protected. In the same case Justice Bhagwati suggested for the appointment of a judicial committee for the Judicial Appointments. He said,” It is imprudent to entrust power in any significant or sensitive area to single individual however high or important may be the office, which he is occupying”.
Considering a PIL writ petition filed by an advocate of the Supreme Court, overruling its previous judgement in S.P. Gupta v. Union of India, a nine judge bench of Supreme Court by 7-2 majority in S.C. Advocate on Record Association v Union of India
held that in the matter of appointment of the Judges of the Supreme Court and the High Courts the Chief Justice of India should have the primacy. The greatest gravity should be attached to the view of the Chief Justice of India formed after taking into account the views of two senior most Judges of the Supreme Court. The selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on exercise of power by the Chief Justice of India. The dissenting opinion made by A.M Ahmadi and M.N. Punchhi held that if primacy is given to the Chief Justice of India the view of other constitutional functionaries would become redundant. The majority also held that appointment of the Chief Justice will be made on the basis of seniority.
Giving his opinion on the nine questions raised by President in his reference to Supreme Court, a nine judge bench of Supreme Court in re Presidential Reference
held that the consultation process to be adopted by the Chief Justice of India requires consultation of Plurality of Judges and the sole individual opinion of the Chief Justice of India does not constitute “consultation”. The majority held that in appointments of Judges to the Supreme Court under Art. 124(2), the Chief Justice of India should consult “a collegium of four senior most Judges of the Supreme Court” and made it clear if two judges give adverse opinion the Chief Justice of the Supreme Court should not send the recommendation to the Government.
In matter of appointment of judges of High Court the collegium should consist of Chief Justice of India and two senior most judges of Supreme Court and in regard to transfer of High Court in addition to collegium Chief Justice of India should also consult the Chief Justice of two High Courts (one from which the judge is being transferred and the other receiving him). The court also held that the only ground on which the appointment of the Judges of higher courts can be challenged is that the consultation power has not been in conformity with the guidelines, i.e, without consulting four senior most Judges of the Apex Court. With this judgement the appointment of Judges to the apex court of land has been solely entrusted to a non-constitutional body.
With these Judgement it was clearly made clear by the Supreme Court in relation to Appointment and Transfer of Judges that:-
1. The appointment of Judges of Supreme Court and of High Courts and transfer of High Court judges is solely entrusted to Collegium.
2. The recommendation of Collegium will be binding on the Government.
3. The only ground when the recommendation of collegium can be challenged is when Chief Justice of India does not follow the consultative process, that is, without consulting four senior most judges of the Supreme Court.
4. Transfers of Chief Justices and Judges of High Courts cannot be challenged in courts.
5. Appointment of the Chief Justice of India will be made on the basis of Seniority.
 AIR 1977 SC 2328
 (1993) 4 SCC 441
 AIR 1999 SC I
Author: Harsh Srivastava, student Shri Ramswaroop Memorial University