Oxford Handbook

Separation of Powers
There is a mistaken belief that power is property (Seervai) and much of debate is on the
word “power”. It is a means to an end and must be conferred on the authority which can best
achieve that end.

Doctrine of Functional Specialization

It is the separation of functions. Montesquieu’s idea is that monopoly of power in any one
of the various organs of government leads to tyranny. Separation of powers is thus necessary
as a check & balance on exercise of powers.

The various branches of government-

i) Executive or the admin branch

ii) Legislative or the enactment of law
iii) Judiciary or resolution of disputes

Westminster Model

It is based on the principle of supremacy of parliament, allowed parliament to change the law
in any way it pleases. No statute can be declared void on the ground that it trespasses.

Eventually, a distinction was made b/w legislative and executive branch.

Indian Model

It provides for recognition of the different bodies, but it does not expressly vest diff kinds of
power. (Except the powers vested in prez and governors)

- India has a written consti and its parliament is limited by it and does not possess
sovereign character.
- Consti is supreme, and any legislation contravening it is void.
- Executive has been given dominant powers.

Acharya Kriplani stated that “let there be camouflage.”

- There is no real separation of powers, there is a functional overlap b/w the various
organs.

Despite the overlap, a broad constitutional organization of legal powers continues, with the
need for checks and balances to achieve the consti objectives set out in DPSP.
Montesquieu’s theory of equal separation of powers has been expressly rejected by the
consti. There has been a more discernable move towards ensuring creation of more
autonomous bodies.

Legislature: composition, qualification, and disqualifications

India’s parliamentary democracy is federal in character.

Rajya Sabha (envisioned as Council of States)

- Rajya Sabha is the indirectly elected house with rep from states and UTs. It has an
upper limit of 238 members. The allocation of seats is specified in the consti.
- Election to RS is through a single transferable vote by elected members of state
assemblies for 6 years.
- RS is a continuing house, with 1/3rd members retiring every 2 years.
- By resolution can enable legislation to be passed on subjects that falls under List II,
can also resolve to create All-India Services.

Lok Sabha

- LS is a directly elected house, with members from constituencies.

- There is an upper limit of 530 members from states and 20 from UTs.
- The council of ministers is directly answerable to LS i.e. LS has the power to remove
the CoM.

The two houses have similar legislative powers; all legislation except money bills need
approval of both the houses. (LS is the final authority on all money bills, with RS having only
recommendatory powers.)

There exists a mechanism of a joint sitting if houses cannot agree on a bill.

While exercising the constituent power- of amending the constitution- the two houses have
equal powers, every amendment needs to be passed by a majority of membership and 2/3rd
of those present and voting. (No concept of joint sitting)

Legislative council and Legislative assembly

Analogous to the LS & RS.

Disqualifications

Office of Profit

There is a delicate balance b/w legislature and the executive. While carrying out duties, there
should be no obligation to the govt, enabling a free and fair exercise- ensuring independence
from executive.
The SC has held that office is separate from holder. (Yugal Kishore Sinha v Nagendra
Prasad Yadav)

1. To be an office of profit there must be some pecuniary gain attached to it, can be
manifested in ways other than money.
- Term must be interpreted reasonably, it is the substance and not the form of payment
that is important.
- Land allocated to a person by way of remuneration would be considered pecuniary
gain.
- If the payment is for meeting out-of-pocket expenses, it would not be considered to
lead to profit. (Compensatory allowance)
2. The amount receivable is relevant in deciding whether the office is one for profit.
3. Even if an office is hereditary, it can be an office of profit if govt appoints the holder,
and is removable by govt.
4. Determination of whether the function in under control of govt is to decide whether
office is under govt.
- Auditor of Govt Company is holding an office of profit. (His functions are under
Comptroller & Auditor-General)
- Importance needs to be placed on substance of the function.

Jaya Bachchan Case

- It is not imp whether the person actually receives the pecuniary gain or whether the
gain is negligible.
- What is of relevance is whether the office is capable of yielding profit or pecuniary
gain.

Defection

52nd amendment act added article 102(2) and the 10th schedule to the constitution. This
provided the ground for DQ on the basis of defection.

The law restricts legislators' ability to vote based on conscience by enforcing party whips on
all issues. A potential compromise could limit disqualification to key votes like confidence
motions, adjournments, and money bills, balancing political stability with legislative
freedom.

Kihoto Hollohan

Reshaped parliamentary democracy by shifting power from individual legislators to party

leadership.

Party cohesion is essential for public confidence & survival.

Para 7 of the 10th schedule barred courts from having jurisdiction on any matter relation to
DQ, while the SC brought about a change in the operation and effect of art. 136, 226, and
227.

- Under art. 368 (2), the bill would have to be ratified by half the states before it was
sent to prez for his assent.
- As this procedure was not followed, this part was struck down.

A more serious challenge was brought on the ground of democracy, it was argued that by
imposing restrictions on legislators on their freedom to vote acc to their conscience, violated
they parliamentary principle of democracy.

- This argument was rejected by the SC.

Article 105(1) gives MPs freedom of speech in the parliament, it was contested that anti-
defection law infringes on these rights.

- SC held that it does not, as art 105 does not provide absolute freedom of speech and
that the 10th schedule does not hold MPs liable in court for their speech or votes.

Paragraph 6 of the 10th schedule gives finality to the decision of speaker/chairman and
protects the proceedings from challenges.

- SC clarified that judicial review is allowed in cases of consti violations, mala fides,
breach of natural justice, or perversity.
- Speaker/chairman acts as a tribunal when deciding DQ, courts, however cannot
intervene before decision is made.

Voluntary resignation v Resignation:

Ravi S Naik Case

- A member’s conduct can indicate voluntary resignation from their party w/out formal
resignation.
This can be inferred from newspaper photos and members’ statements.

G Vishwanathan case

The tenth schedule DQs a member who gives up party membership, but does not address
cases where a member is expelled by their party.

The SC clarified that:

- No “unattached members”
expelled members are deemed to be a part of the party that originally nominated
them.
- Expelled members cannot join another party without facing DQ.
Speaker’s power to view decision was reviewed and it was held that their decisions are final
but are subject to judicial review.

Speaker ha no inherent auth to review or reverse an earlier decision.

Parliamentary functioning:

- Party whips are now issued on most issues.

- MPs lack freedom to express independent opinions, becoming mere votes controlled
by party leaders.
- Debates are shaped by party leadership rather than individual views.
(Seen during the 2012 FDI retail debate)

Effectiveness:
It has not been able to curb unprincipled defections or cross-voting.
(1998 confidence vote- 21 MPs defied the whip.)

The law, therefore, discourages honest debates and stifles genuine differences within parties.

Undermines democratic deliberation.

Vacation of seats & Decision on DQ

Art 103 outlines the process for addressing the DQ of Member of Parliament under 102(1).

1. If a question arises about DQ under 102(1), it must be referred to the prez, who seeks
the opinion of EC and acts acc to it.
- Does not apply to the cases of defection under art 102(2) where speaker/chairman
makes the final decision.
2. Similar provisions apply to state legislatures, but reference is made governor instead
of prez.
3. Art. 102(1) disqualifies a person from being chosen as a MP and from continuing as
one.
4. Art. 103 deals only with DQ that arises after a person has become a member.

CERC v UOI

If a DQ person is elected w/out objections during the election process, and no petition
challenges the election, they can continue as a member despite the DQ.

K Venkatachalam v A Swamickan

A person falsely claimed to be on the electoral rolls by impersonating someone with the same
name and was elected to the Tamil Nadu Legislative Assembly. Another contestant
discovered this fraud a year later, but the 45-day limit for filing an election petition had
already passed.
  The contestant approached the High Court under Article 226.

 A single judge ruled the writ petition was not maintainable due to the bar under
Article 329.

 On appeal, a division bench set aside the election using Article 226 powers.

The case went to the Supreme Court, which ruled:

- Article 226 grants wide powers to address actions that violate the law or the
Constitution when no other remedy is available.
- The member was disqualified and not entitled to sit in the assembly.

Since the assembly's term had ended, the Election Commission could not declare the seat
vacant.

Instead the State government was tasked with recovering the penalty under Article 193 for
the individual knowingly sitting as a member without qualification.

Process of DQ:

It involves 3 steps-

i) A question regarding DQ is raised and referred to the prez.

ii) The prez seeks the opinion of EC.
iii) The prez’s decision is final.

The seat becomes vacant only after the prez’s decision. Any citizen can apply to the president
to raise such a question.

- The prez does not act on advice of CoM, but is bound be the EC’s opinion.
- EC is a quasi-judicial role and must adhere to principles of natural justice during the
process.

Art 101 outlines the circumstances under which parliamentary seat may become vacant:

i) Dual membership
ii) Election to State legislature
iii) DQ
iv) Resignation
v) Absence

For articles 101(1), (2), (3) (b), and (4) the seat is vacated w/out adjudication.

Under article 101 (3) (a), DQ may require a decision:

- If the member agrees to DQ, the seat is vacated immediately.

- IF not, the prez or speaker decides.
Legislature: Privileges and Process
Relationship with FR

Legislators cannot claim the privilege when acting in a personal capacity as evidenced in
Jatin Chandra Ghosh.

MSM Sharma v Sri Krishna Sinha

Search light published redacted remarks criticizing the CM, leading the assembly to issue a
breach of privileges notice to editor and publisher.

- The editor argued that this violated his freedom of speech and right to personal
liberty.
- SC in majority opinion, upheld the assembly’s privileges, stating that legislature had
right to control the publication.
- 194(3) could override freedom of speech.
- K. Subba Rao in his dissent argued that privileges should be limited by FR,
particularly freedom of speech.

Criticism of the case-

1. The case raised questions about whether the legislature’s privileges were being used
inappropriately, as the publication of the remarks did not appear to obstruct
legislative functioning.
2. The Court focused on protecting legislative procedures, even though the reasons for
invoking privileges seemed questionable.
3. Supreme Court's majority opinion wrongly prioritized the legislature's need to
function without hindrance over fundamental rights like freedom of speech.
4. The Court used an overly broad interpretation of a provision that limited liberties,
even though such provisions are typically interpreted to expand rights.

Keshav Singh v UP Legislative Assembly

Keshav singh was detained for criticizing a legislator and distributing a pamphlet. The
speaker issued an arrest warrant against him for disruptive behaviour. His lawyer filed
habeas corpus writ petition.

Assembly responded by issuing breach of privileges notices against the judges and lawyer
accusing them of contempt.

Main question-

- Whether legislative privileges could be invoked for actions outside the House
- Whether judicial review was allowed
What the court held-

1. High Court judges were right to hear Keshav Singh's petition and that the assembly's
actions were not valid.
- The Court emphasized that legislative powers, while important, are not absolute and
should be subject to judicial review.
2. It was determined that the legislature could not compel the production of judges and
the lawyer, as their actions were not directly related to Keshav Singh’s contemptuous
acts.

The case showed the dangers of subordinating fundamental rights, especially personal
liberty, to legislative privileges. Legislative powers should not be used in ways that
undermine the right to a fair process, such as detaining individuals without adequate
justification, which is a violation of the right to personal liberty under Article 21 of the
Constitution.

The majority opinion favoured judicial review because the Indian Constitution provides a
system of checks and balances, unlike the British Parliament, where such powers are less
constrained.

Tej Kiran Jain v N Sanjeeva Reddy

The SC held that MP’s defamation remarks made during parliamentary proceedings were
immune from litigation due to legislative privileges.

Legislative privileges and Corruption

PV Narsimha Rao v State

A no confidence motion was moved against PVN Rao during him PM-ship. The govt survived
the vote.

CBI uncovered evidence of bribery to secure votes for the govt.

- Bribe giver could be prosecuted, those who took bribes could not be.
- The dissenting judgment held that bribery should not be protected by legislative
privileges.

As a response to this judgment, the National Commission to Review the Working of the
Constitution (NCRWC) had recommended an amendment to Article 105 to explicitly exclude
corrupt acts from its ambit.

Ram Pal v Speaker, LS

12 MPs were expelled for accepting money or favours in exchange for asking questions in
Parliament, as revealed by a television programme in December 2005. The MPs challenged
their expulsions, arguing that Parliament lacked the constitutional authority to expel them in
this manner, as disqualification conditions were explicitly outlined in Article 102(1)(e) and
the Representation of the People Act. They claimed the privileges committee might not
follow natural justice principles.

1. The majority opinion (Chief Justice YK Sabharwal and Justice CK Thakker) ruled in
favor of Parliament, asserting that privileges could be used to expel members whose
misconduct harmed the legislative process.
- They distinguished between expulsion, which allowed for re-election, and
disqualification, which was permanent.
2. The dissenting opinion (Justice RV Raveendran) argued that expulsions should
follow the constitutional disqualification criteria, as they formed a self-contained
code.

The decision also reaffirmed that while Articles 122 and 212 prevent judicial scrutiny of
parliamentary proceedings, courts can examine "substantial illegality."

This maintained that judicial review could be applied to legislative actions if they were
fundamentally illegal, responding to the claim by the Speakers of the Lok Sabha and Rajya
Sabha that expulsions were solely within the legislature’s jurisdiction.

The case highlighted the tension between legislative autonomy and the scope for judicial
oversight in matters of constitutional interpretation.

Conclusion:

The key issue is whether criticism of lawmakers should be treated as an obstruction to their
work, justifying the use of legislative privileges.

Most believe it shouldn't, as lawmakers should be able to handle criticism. While privileges
can address corruption, they are often misused, with committees becoming biased.

Using privileges for discipline lacks strong justification.

Executive
Executive power is exercised by the PM & CoM, however keeping up with India’s
Westminster inheritance, such power vests in a formal head of state.

The Head of the State

Article 53 vests the executive power of state on the prez. This can be exercised directly or
through officers subordinate to him in acc to the consti.

- India’s presidents do not inherit their offices, they are indirectly elected by the
people.
- Elected members of both the houses and those of state legislatures for the Electoral
College.
- Proportions ensure ‘uniformity in the scale of representation of the different states;
to maintain parity b/w the state assemblies and the house of rep.
- Elections are held by the method of single transferable vote.

Presidents and governors are formal heads, who act on advice of the head of govt.

Article 71(1) grants SC exclusive jurisdiction on all doubts and disputes that arise out of or in
connection with the presidential election.

Baburao Patel v Zakir Husain

The Presidential oath is unique, as Presidents pledge to "preserve, protect, and defend the
Constitution," while other constitutional office-bearers take an oath to "uphold the
sovereignty and integrity of India."

Narayan Bhaskar Khare

In 1957, a petitioner challenged the notification for the Presidential elections, arguing that
some State legislative assembly seats were vacant, which could affect the fairness of the
election.

He claimed that the Electoral College, as defined in Article 54, must be fully constituted for
the elections to be valid.

- The Court rejected the petition, but some judges questioned this interpretation.
- To prevent this argument from being accepted in the future, Parliament amended
Article 71, adding a proviso stating that the election of a President or Vice-President
cannot be challenged due to vacant seats in the Electoral College.
- Therefore, Article 54 now defines the maximum number of electors, but there is no
minimum, meaning a President could be elected with as few as one Legislative
Assembly in extreme cases.
Shiv Kirpal v VV Giri

The Supreme Court ruled that Union Territories do not have legislative assemblies for the
purposes of Article 54, as they only have bodies functioning as legislatures.

To address this, Parliament amended Article 54, recognizing certain Union Territories like
Delhi and Pondicherry as 'States' for Presidential elections, allowing them to participate
proportionally in the Electoral College.

President & the Council of Ministers: Constitutional Interactions

Article 53 gives the President the executive power of the Union, which can be exercised
directly or through subordinate officers.

Article 74(1) initially suggested that the Prime Minister and the Council of Ministers only
had an advisory role to the President, with no binding authority on his decisions.

Article 78 further emphasizes the Prime Minister's duty to communicate decisions and
proposals to the President.

Together, these provisions supported the view that the President, as the real head of the
Union, had the discretion to exercise executive power and could accept or reject the advice of
the Council of Ministers.

- Article 74 mandates that the President act on ministerial advice, but courts cannot
question or intervene in this process due to presidential immunity and the
confidentiality of advice under Article 74(2).
- Disputes over presidential compliance must be resolved politically through
resignations or impeachment. While the amendment clarified the mandatory nature
of ministerial advice, it made minimal substantive changes, and related documents
remain protected from disclosure.

Ram Jawaya Kapur v State of Punjab

1. Executive powers lie with the council of ministers, who are collectively responsible to
the legislature. It is they who formulate imp policies.
2. The prez is a constitutional head.

Samsher Singh v State of Punjab

1. The satisfaction of the President or Governor under the Constitution refers to the
satisfaction of their council of ministers, not their personal judgment.
2. It emphasized that, as in British constitutional law, ministers are responsible for all
executive actions, and the sovereign acts only through advisors who have the
legislature's confidence.
 - British parliamentary conventions heavily influenced the Court's interpretation of
Indian constitutional provisions.

To prevent further disputes, Parliament amended Article 74, aligning it with the reasoning in
Samsher Singh. The revised provision clarified that the President must act on the advice of
the Council of Ministers, led by the Prime Minister, in performing their duties.

Gave textual pedigree to ministerial primacy.

Collective responsibility

Ministers wield real executive power and are collectively and individually accountable for
their actions.

Article 75(3) establishes collective responsibility, rooted in British conventions, meaning the
council of ministers is jointly responsible for government affairs.

1. Unity & Accountability

Ministers must publicly support cabinet decisions, even if they privately disagree.
Those unable to defend, must resign.
Cabinet decisions bind all ministers unless overruled collectively.

Subramanian swamy v Manmohan Singh

Individual ministerial decisions don’t always translate into collective legal accountability.

2. Political and legal aspects

collective responsibility is primarily political, ensuring party discipline and govt
stability.
A no-confidence motion against the council affects all ministers, while targeted
motions may lead to individual resignations.
Judicial accountability applies to ministers for arbitrary or malicious actions, but not
for bona fide decisions with unintended consequences
3. Departmental oversight
Ministers are accountable for their departments, including actions by subordinates,
even without direct knowledge.
Article 77(3) allows the President to allocate government business for efficient
functioning, but ministers remain answerable for departmental shortcomings in and
outside Parliament.

Collective responsibility thus ensures accountability, unity, and governance discipline,

blending political and legal dimensions.
Discretionary powers of president and governors

Appointment of PM:

It is a key discretionary power of the prez, though it is often guided by Westminster

conventions. Typically, the prez appoints the leader of the party or alliance commanding a
clear majority in the lower house. (not much room for discretion)

In cases of fractured electoral results, real discretion comes into play.

1. Pre-poll alliances
Atal B Vajpayee’s appointment in 1999, prez looked at the leader of a pre-poll alliance
with majority support.
2. Post-poll alliances
Prez considers post poll alliances, even those relying on outside support, such as
Manmohan Singh (2004, 2009) or VP Singh.
3. Largest party leader
If no alliances have majority, the prez looks at the leader of the largest party, hoping
they can form a working majority.

This practise balances constitutional discretion with evolving pol realities.

Dismissal of govt:

Ministries typically resign after losing trust votes, but they can be dismissed if they refuse.
Governors have exercised this power.

1. Art 356
Governors can report to the prez that the state’s admin cannot function per the
consti. In this case, they act independently of ministerial advice.
2. Art 164 (Pleasure rule)
Governors can dismiss ministries if they believe the ministry has lost its majority.

Courts generally avoid intervening in such dismissals, leaving the legality of Governors
dismissing ministries based on their private assessment of majority support unresolved.

Dissolution of House:

Lower Houses have a maximum tenure of five years, but Presidents and Governors can
dissolve them earlier, usually on the advice of the council of ministers. However, whether
they are always bound by this advice is unclear:

1. Majority Cabinets

These may seek dissolution to gain electoral validation for policies or time elections
strategically to benefit from political, economic, or military events.
 2. Minority Cabinets

These may recommend dissolution to block rival coalitions from forming a

government.

In India, Heads of State often exercise discretion in cases involving minority governments.
They typically explore alternative ministries before considering dissolution, making their
discretionary power significant in such situations. A consistent practice in this regard has yet
to emerge.

Nature of Discretionary powers’ evolution

The overall structure and functioning of the executive branch has remained stable. The only
significant period of contention occurred during the early years of the Republic.

- Rajendra Prasad and Nehru disagreed over the interpretation of the prez’s role under
the newly framed consti.
- Prasad believed that prez’s powers were meaningful and allowed some role in
governance of the state, while Nehru saw it as largely ceremonial.
- Prasad actively engaged in executive matters, by delaying legislations. Nehru opposed
Prasad’s approach, relying on legal opinions and his overwhelming parliamentary
majority to overrule Prasad’s objections.

Eventually, Prasad yielded to Nehru. This marked the beginning of Nehruvian Presidency,
where prez’s role was merely ceremonial. His re-election reinforced this interpretation.

Subsequent legal rulings such as Shamsher Singh solidified this consensus, ensuring that the
prez’s role remained largely symbolic while PM wielded real power.

Applicability of this model has been called into question when more complex pol scenarios
arise such as minority or caretaker govt. (Common since 1980s)

- Caretaker governments, such as those led by Charan Singh and Atal Bihari Vajpayee,
lack parliamentary confidence, raising doubts about whether their advice to the
President should carry the same weight as that of a fully accountable government.

Madan Murari Verma v. Chaudhary Charan Singh

President is not bound by advice from a caretaker government except for day-to-day
administration. Decisions that can wait for a responsible Council of Ministers must not be
made by a caretaker government.

Conclusion:

This debate highlights the evolving and situational nature of the President's role. While the
Constitution’s framers provided a stable framework for governance, changing political
contexts reveal complexities that may require the President to act beyond ceremonial
functions. Calls for a legislative redefinition of the President's role, as proposed in 1969,
remain relevant today. The challenge is to adapt the Constitution's provisions to both stable
and unstable political times while preserving its foundational principles.

Concerns regarding discretionary power

Several key issues stand out-

1. Electoral Legitimacy v Discretion

- Governors are appointed and lack electoral accountability. Yet, they wield potentially
broader discretionary powers.
- Art 163 grants governor the auth to act at their discretion, moreover they have final
say in determining whether particular issue falls under discretionary powers,
effectively allowing self-regulation.
2. Lack of ministerial accountability
- Prez must act on the advice of the council of ministers (Art 74).
- There is no explicit limit on auth of governors.

Additionally, the Constitution assigns specific powers to Governors, such as:

 Withholding assent to bills or reserving them for Presidential reconsideration.

 Recommending President’s Rule in a state.

 Overseeing the administration of areas under the Fifth and Sixth Schedules.

These broad and sometimes ambiguously applied powers raise constitutional concerns. The
unelected nature of the Governor's role exacerbates these anxieties, as they exercise
significant authority without electoral accountability. This stands in contrast to the
Nehruvian consensus that curtailed the President's discretion, which never extended to the
office of the Governor, leaving governorships as an enduring anomaly in India's
constitutional framework.

Judicial Independence & Appointments

The judiciary must be fully independent to ensure it can evaluate the actions of the
legislature or executive against the principles of the consti- core purpose of judicial
independence.

Justice Krishna Iyer describes this role, emphasizing that in a dynamic democracy,
judges must uphold the nation’s constitutional values without being influenced by executive
overreach, societal pressures, or outdated beliefs.
This independence is safeguarded by consti to enable judges to perform their duties
fearlessly and effectively.

Judicial Oath

1. The oath prescribed in the 3rd schedule of the consti requires judges to perform their
duties "without fear or favour, affection or ill-will."
- Judicial independence, in essence, means being free from any influence that could
cause a judge to stray from this oath.
2. Any deviations from these principles undermines judicial independence and leads to
decisions based on factors other than the merits of the case.
3. As the Supreme Court noted, the Constitution's framers emphasized the importance
of insulating the judiciary, akin to a protective "Monroe doctrine" for judicial
independence.

Balance

Pursuit of judicial independence must be balanced with the imperative of judicial

accountability. Central challenge in modern consti democracies is crafting a system that
fosters both, as these goals are not inherently contradictory.

- One perspective holds that a judiciary granted greater autonomy can cultivate
accountability through self-regulation.
- Alternatively, there is the view that judicial independence, while vital, must be
tempered by external checks when self-regulation falls short.

Notably, debates around judicial independence have often centered on appointments to the
higher judiciary.

However, issues such as salaries, tenure, transfers, removal, and administrative support are
equally vital to this discourse.

The evolving balance between independence and accountability reflects the dynamic
interplay of constitutional values and institutional priorities.

Appointments

SP Gupta

A seven-judge bench of the Supreme Court examined whether a circular issued by the Union
Law Minister, recommending the redistribution and transfer of High Court judges, infringed
upon judicial independence.

By a narrow majority of four to three, the Court dismissed the petitions, with each judge
delivering a separate opinion.
Second Judges Case

Landmark judgment that overturned SP Gupta established judicial primacy in the

appointment of judges to the higher judiciary.

1. The majority held that the selection of judges for the Supreme Court and High Courts
must rest primarily with the judiciary, particularly the Chief Justice of India (CJI)
and their consulters within the superior judiciary.
2. The Court rejected the "seniority alone rule," emphasizing that the selection of the
CJI should be based solely on merit.
3. CJI’s opinion in judicial appointments is binding on the executive, interpreting the
term "consult" in Articles 124(2) and 217(1) of the Constitution to imply a mandatory
obligation.

Context of SC Appointments:

- Court ruled that the CJI's opinion must be formed in consultation with the two most
senior judges of the Supreme Court.
- Additionally, the CJI should consider the views of the senior-most judge from the
candidate's High Court, whose perspective would provide valuable insight into the
candidate's suitability.

Context of HC Appointments:

- CJI is expected to consult colleagues in the Supreme Court familiar with the affairs of
the relevant High Court and consider the opinions of one or more senior judges of
that High Court.
- Similarly, the Chief Justice of the High Court must base their recommendation on
consultations with at least two of the High Court's senior-most judges.

This judgment not only laid out a detailed framework for the appointment process but also
firmly established the collegium system for judicial appointments in the High Courts and the
Supreme Court.

The collegium represents a collective institutional voice, ensuring that the judiciary itself
holds primacy in shaping its composition.

Special Reference No. 1 of 1998

Sought the court’s opinion on the interpretation of articles 217 and 222. The court was asked
to clarify the meaning of “consultation with the CJI” in these provisions.

1. The SC held that “consultation” required the involvement of a plurality of judges, not
just the individual opinion of CJI.
- The opinion of CJI is to be formed alongside 4 senior-most judges of the court.
 - For HC appointments, the CJI was to consult the 2 senior most judges of the SC.
2. Judicial appointments are “participatory consultative process” aimed at selecting the
most suitable candidates.
- Task entrusted by the consti is to be performed collectively.
3. CJI’s opinion reflects the input of senior judges.

This decision reaffirmed & solidified the collegium system, ensuring that judicial
appointments are based on a collaborative process within the judiciary.

The judgment solidified the collegium, granting it exclusive auth over judicial appointments
to the higher judiciary.

Non-Binding instances of Collegium’s decisions:

1. Transfer of HC judges under 222

The Government was not obligated to follow the recommendation if the Chief Justice
of India (CJI) had not consulted the four senior-most judges of the Supreme Court or
failed to obtain the views of the Chief Justices of both High Courts involved in the
transfer
2. Non-compliance with consultation norms
Recommendations made by the CJI without adhering to the consultation process
were deemed non-binding. This included failing to consult the senior most judges of
the Supreme Court, the senior most judge from the same High Court as the
appointee, or proposing a candidate who lacked eligibility.
3. Government’s rejection of a recommendation
The Government could provide reasons for not appointing a candidate recommended
by the collegium. The CJI and the collegium members were then required to
reconsider the recommendation. The CJI also had the discretion to share the
Government's reasons with the proposed appointee and seek their response.

These exceptions emphasize the importance of procedural rigor in the collegium system
while allowing limited scope for govt input, subject to oversight & transparency.

Facets of Court’s Decision:

It did not address broader concerns of judicial independence and separation of power.

- Relied on J Verma’s reasoning from 2nd judges’ case, that consultation requirement
aimed to ensure the CJ, could prevent pol interventions.
- The court reiterated that the collegium’s primary purpose was to appoint the best
talent.

Fallout:
It sparked intense pol debate over judicial control of appointments, with concerns about
unchecked judicial power.

In response the 99th amendment and the NJAC (National Judicial Appointments
Commission) Act were enacted in 2014.

- They sought to replace the collegium system with a 6 member NJAC, where judges
would no longer have majority.
- These changes gave significant power to the executive and other non-judicial actors,
departing from consti framework.

Supreme Court Advocates-on-Record Association v. Union of India (2015)

The court struck down the 99th amendment and the NJAC Act, as violative of the basic
structure doctrine.

The court emphasized that judicial independence required the judiciary to have primacy in
the appointment process.

Justice Kehar:

- The collegium system was participatory, not exclusive, involving consultation.

- Consti history showed that Dr. Ambedkar prioritized insulating the judiciary from
executive control hence, the use of work “consultation” in Articles 124 and 217.
- NJAC’s composition undermined judicial independence, reducing its role.

Justice Lokur:

- Judicial primacy has been a consti convention since GOI Act, 1935.
- NJAC gave veto power to non-judicial members, disrupting the balance of power and
hence was criticized.

Justice Goel & Justice Joseph

- Judicial primacy in appointments was integral to basic structure.

- NJAC could lead to undue interference by the executive or legislature, compromising
separation of powers.

Collegium was reaffirmed as essential for safeguarding judicial independence.

Conclusion

Balance b/w judicial independence and accountability is shaped by historical experiences of

institutional functioning.

- Choices made and the corresponding evolution of constitutional doctrine.

 - The erosion of judicial independence during the PMship of Indira Gandhi prompted
judiciary to assert greater control over the appointment process.

Judicial independence is multi-faceted, and highlights unexplored areas.

1. Post-retirement benefits for judges, such as land grants or appointments to

commissions, can be beneficial if merit-based and transparent. However, enticing
sitting judges with such rewards undermines judicial integrity.
2. Judges' asset disclosure, though not mandatory, has gained attention as many
Supreme Court and High Court judges voluntarily share their details, fostering
transparency.