Why Primacy of the judiciary in judicial appointment a part of the basic structure?

The objective of this research article is to study the trajectory of the second judges’ case to find out why the judicial primacy in judges appointment has been considered as a part of basic structure.

What is it that makes us trust our judges? Their Independence in office and manner of Judicial appointment– John Marshall


Judiciary in any country always plays a very crucial role in the interpretation and application of laws and in a country that follows a written Constitution then the judiciary has an additional function to protect the supremacy of the Constitution through interpreting and applying its provision. The Judiciary has to also ensure that all the authorities should work within the framework of the Constitution. The judicial appointment also plays a very important role.

India has a much unified judicial system with the Supreme Court which enjoys the topmost position in the judicial hierarchy and all the other High Courts and subordinate courts below it.  Article 124 (1) states about the establishment of the Supreme Court of India comprising the Chief justice of India and the maximum possible strength of 34 judges. Judiciary is one of the main pillars of democracy to ensure the smooth functioning of democracy. There have been a lot of conflicts in past years within the pillars of democracy relating to the functions of the check and balance they perform. The struggle of Independent Judiciary in India has a long trajectory.

An Independent judiciary is the sine qua non of a vibrant democratic system. Only an impartial and independent judiciary can stand as a bulwark for the protection of the rights of the individual and mete out even handed justice without fear or favour. The Judiciary is the protector of the constitution and, as such it may have to strike down executive, administrative and legislative acts of the Center and the States. For the rule of law to prevail, judicial independence is of prime necessity. Being the highest Court in the land, it is very necessary that that the Supreme Court is allowed to work in an atmosphere of independence of action and judgment and is insulated from all kinds of pressures, political or otherwise.[1]  Independence of the judiciary is one of the basic structures of the Indian Constitution and has also been recognized as a human right by international conventions.[2] The objective of this research article is to study the trajectory of the second judges’ case to find out why the judicial primacy in judges appointment has been considered as a part of basic structure. According to Article 124(2) the judges of the Supreme Court are appointed by the President, the President is required to consult the Chief Justice of India and other judges of the Supreme Court.  

Appointment of Supreme Court judges before 1993

Prior the year before 1993, the President’s power to appoint Supreme Court Judges was purely a formal nature, the President use to act on the advice of the concerned ministers. The final power to appoint the Supreme Court Judges rested with the Executive and the views of Chief Justice were not binding on the Executive. For a very long time India followed the practice of appointing the senior most judge of the Supreme Court as the Chief Justice.

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In 1973 suddenly deviated from the practice of appointing the senior-most judge of the Supreme Court as the Chief Justice of India by appointing Justice A.N. Ray who was the fourth in the order of seniority and has by-passed three senior judges, and they afterward resigned from the post in protest. The petition was filed in the Delhi High Court challenging the judicial appointment of the judge but the court dismissed the petition.

Again in the year of 1976 the Government appointed Justice BEG as the Chief Justice by-passing Justice Khanna who was senior to him, because of this Justice Khanna resigned from the post in protest. After this the seniority of judge’s rule was followed in the appointment of Chief Justice of India.

The Primacy of Judges (Position after 1993)

To maintain the independence of the judiciary the question of selection and appointment of judges is important in that regard. As the Constitution does not sates a very descriptive procedure of appointment of Judges and it was also not clear from the bare provision that whose decision will prevail in case of conflict of opinions among the concerned persons. This important question was considered by Supreme Court in several case laws.

S.C. Advocates on Record Association v. Union of India[3] (Second Judges Case)

A public Interest writ petition was filed was filed in the Supreme Court by the by the lawyers association raising several important issues concerning the appointment of the judges of the Supreme Court and the High Court. The petition was considered by the bench of 9 Judges. In this case the question of primacy of the opinion of Chief Justice of India in regard of the appointment of the Supreme Court Judges was considered. The Court emphasized that the question has to be considered in context of achieving “the constitutional purpose for selecting the best” suitable for composition of Supreme Court “so essential to ensure the independence of Judiciary, and thereby to preserve democracy.”[4] Referring to the ‘consultative’ process envisaged in Article 124(2) for appointment of supreme Court Judges, the Court stressed in the point that this procedures indicates that the government does not enjoy ‘primacy’ or ‘absolute discretion’ in the matters of appointment of Supreme Court Judges. The primary aim was to reach at an agreed decision taking into accounts the view of all the consultees giving the greatest weight to the opinion of the Chief Justice.

Collegium System 

 In Supreme Court Advocates-on-Record Association v Union of India[5][“the NJAC judgment”], The Supreme Court of India struck down the 99th Constitutional Amendment along with National Judicial Appointments Commission Act, and restored the pre-existing Collegium system of judicial appointment. The system is built on the structure of the primacy of the judges. The definition of Primacy of judges is when the judges have the final take on the decision regarding the appointment of the Supreme Court and High Court Judges. The Collegium comprises of the 5 senior most judges of the Supreme Court to make the initial selection in the appointment of the judges, and then the Executives provide the own set of comments on the appointment decision which is not binding on the Collegium to follow. And after the decision has been finalized by the Collegium the Executive i.e. the President formally confirms the appointment. So the Collegium system enjoys the supreme power and has the dominant role in the judicial appointment.

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The Collegium system emerged from the 1993 judgment of in the Second judges Case.

 In the basic structure challenge to the 99th Amendment, which replaced the Collegium with the National Judicial Appointments Commission [“the NJAC”], the first question that the Court had to answer was what, precisely, did Second Judges Case hold on the question of the primacy of judges.[6]

The word ‘consultation’ word in the Article 124 of the Constitution was interpreted in the second judges case and on the basis of that the collegiums system was established. With the 99th amendment done by the legislature in the provision of the article by replacing the word consultation and established NJAC for the purpose of appointment of judges. However it was claimed that the main objective of the second judges case was not the point of linguistic change but to ensure the independence of judiciary which is the part of basic structure of the constitution  in the matter of appointment of judges. And thus the 99th amendment to be held as invalid because the amendment was concerned with making changes in the basic structure of the constitution. The formation of NJAC took away the judicial primacy in the appointment of judges by replacing the Collegium.

National Judicial appointment Commission     

The national Judicial Appointment Commission was a body proposed by the government to function in respect of appointment of the judges. And this was proposed through 99th amendment of the constitution. The body consist of CJI who was suppose to be the chairperson of the body and next two senior most judges for the representation of Judiciary. The Executive was represented by the Law and justice minister and the two eminent people who were supposed to be selected by the CJI, PM and the leader of the opposition. This body curtailed the independence of judiciary and was struck down by the Judiciary.[7]


The concept of ‘Separation of power between the legislative, the executive and the judiciary’ and “Independence of judiciary” a fundamental concept has been “elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme” the court has rendered several decision with the view to strengthen not only its own independence but that of the entire judicial system including the subordinate judiciary.[8]

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After all the aforementioned discussion to answer the question why the primacy of judiciary in the judicial appointment is a part of basic structure because the Indian constitution follows the doctrine of separation of powers and what makes the judiciary important element of the democracy because it has the major function to perform the check and balance on the acts done by legislative and executive through judicial review and this is possible only by maintaining the Judicial independence which is the part of the basic structure of the constitution. The decision of appointment of the judges cannot be influenced by other pillars of democracy which will grand them absolute power and will be arbitrary in nature. Although the Collegium formed after the second judges case had some loopholes which granted the Judiciary the absolute power and there was no transparency in the decision and the NJAC formed by the 99th amendment curtailed the independence of judiciary.

There is a requirement for a judicial appointment model which right off the strong executive participation. Further, the idea of executive involvement ought to be equivalent in terms of number. The executive should be granted with a restrictive veto that can only be utilized in uncommon condition. Lastly, the executive involvement should only be constrained to appointment and should not participate in role of transfer of Judges and appointment of Chief Justice. This kind of executive involvement in judicial appointments will not affect the independence of judiciary and the Judges, considering the judicial independence was deemed to be the key factor for striking down NJAC.

Except if it is very well demonstrated that giving judges the last say in appointments is the main method of shielding judicial independence, the premises of judicial primacy, will only a word on the paper in the current framework. The relaxation of judicial exclusivity in the way proposed permits a specific level of social oversight on judicial appointments. The voice of Parliament is applied as powerful influence for the procedure of judicial selection, with a conclusive job to only in the event of a genuine contradiction inside the judiciary.

Also read Judicial Activism in India: A Food for Thought

[1] Vol. 1, M.P. Jain, Indian Constitutional Law, 405(6th Ed. 2013)

[2] Subhojit Sadhu, Judicial Accountability of the Indian Judiciary, Supreme Court Journal, July 2007, p.27.

[3] AIR 1994 SC 269

[4] AIR 1994 SC at 425

[5] Writ Petition (Civil) no. 13 of 2015

[6] Gautam Bhatia, Primacy of Judges, SSRN, (July 21,2020, 1:42 PM) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2744838.

[7] Pritam Kumar, Judicial Primacy in appointment of judges is a part of basic structure, however both proposed NJAC and the current collegium system violates that?, CivilsDaily, (July 21, 2020 2:53 PM) https://www.civilsdaily.com/mains/judicial-primacy-in-appointment-of-judges-is-a-part-of-basic-structure-however-both-proposed-njac-and-the-current-collegium-system-violates-that-comment-150-w-10-m/#:~:text=Model%20Answer%3A,essential%20towards%20maintaining%20judicial%20appointments.

[8] Supra note 1