Position After 1993 :

While the plurality ensured eradication of arbitrariness and larger participation in the selection process. “Consultation” ensures meaningful involvement of both parties in the selection process. Which effectively reduces the changes of a differing opinion or advice to the President under Act 74(1) of the Constitution and there by smoothens the process of selection with responsibility there for cast on both, the Government and Judiciary. The voice of Judiciary would ensure that competent and independent persons are appointment to the superior Judiciary and the Government would have its say in the choice made so far as the integrity and other desirable character traits of the candidate are concerned. 

The Government contended in the S.P.Gupta’s case, Supra, their greater weight was given to the opinion of the Chief Justice of India in the matter of making appointment to the Superior Judiciary and except on rare occasions, appointments are always made on the advice of the Chief Justice of India. The Constitutional primary of the Chief Justice of India (C.J.I) has been respected and accepted by the Government. As regards the Primacy of the Chief Justice of India, he has both institutional and constitutional primacy in respect of appointments of higher Judiciary. 

The words used in Article 124(1) and 217(1) –as-consisting the Chief Justice and other Judges, what the constitution conferred upon the Chief Justice of India is not only – “Pater families” of the Indian Judiciary, but also its – “Primus inter-pares”, – meaning first among the equals whole functioning Judicially and in matters other than Judicial. He enjoys unique position of primacy in status, rank and authority by virtue of the highest Judicial Office. His role was restored back in the Judges-case-2 i.e, AIR 1994 SC 268. The opinion of the Chief Justice of India is always shared by and arrived at in consultation with his other senior colleagues, which would carry with it – the creditability, acceptance and discipline; that could be readily accepted by the executive without grievance or rancour. But a Peculiar Situation may arise, when the views of the Chief Justice of India are deferred by his senior Judges in the collegiums, the same has to be referred to the President. In case, the President accepts the opinion of the other Judges in the Collegium. 

Then the Chief Justice of India has to withdraw his own opinion. Now in the guise of interpretation Judiciary has abdicated power of appointment of Judges to itself. After the Judges Case AIR 1994 SC 268, it is well established that the appointment is actually done by a collegiums, comprising of the Chief Justice of India and other Judges. The recommendation of the collegiums is binding on the President. [ In President’s reference case AIR 1999 SC-1]. It is noteworthy that in no democracy. Such system of appointment exists, be it U.K. or U.S. Even no transparency is maintained in appointment process. Former Chief Justice of India Justice.Varma, regarding appointment of Judges, said – “For fairness of the process, it is fine to maintain confident ability when the appointment process is on. However, when the process has been finalized and appointments done, the reasons for appointments and rejections should be made public.

Appointment and Accountability are closely related, in certain sense, if proper persons are appointed who are men of integrity and character. Then the proceedings will be fair, away from corrupt practices. In European Union, Judges are elevated to the higher Judiciary purely on concrete basis of merit, no political or Judicial considerations they look to the quality of decisions rendered and the past record of the Judge, so that the best of the best, may go to the higher courts which will ensure the best results. Fairness and Non-arbitrariness are essential requirements in the acts of Judges.