Position before 1993 :
In India, there are 31 Judges in the Supreme Court, 750 Judges in 21 High Courts. At the time of drafting the Constitution, the Original strength of Judges in Supreme Court was Chief Justice and 7 Judges. Now, the total strength is raised to 31 in due cause of time. The strength of Judicial Officers in Subordinate Courts was 13,204 in the year 2005. There is an alarming demand from the Judiciary to increase the strength of Judges proportionate to the population by comprising the position of appointments of Judges in America, Australia, England etc. In our country, the Judge-Population ratio is 10.5 Judges per Million People, whereas in Australia, this figure is 47, in UK 50, in Canada 75, in America 107. The Supreme Court in its Judgement reputed in “All India Judges Association” case, it was held that the Judges Population Ration must be increased to 50 per Million People within 5 Years. Apart this, there are large number of vacancies in various High Courts. There was a demand for 300 Judges in High Courts, 65,000 Judges in Subordinate Courts.
Earlier, The Supreme Court in its Judgement in AIR 1991 SC 631 regarding fixation of Judges strength, it is a matter to be considered. Suggestions were made to government to determine Judges-strength in a pragmatic way on the basis of existing need and keep it under constant review.
The Bar Council of India, its (a) 14th Report, 1958 much earlier, recommended that every appointment of a Judge of High Court or Judge of Supreme Court should be made with the concurrence of Chief Justice of India, in its (b) 121st Report, the Law Commission, further recommended for constitution of a broad-based National Judicial Service Commission, it suggested that such commission should have chairman with Chief Justice of India, four senior-most Judges of Supreme Court, Union Law and Justice Minister as a member of the Commission. It was further opined that the appointment of the Chief Justice of High Court of a state must be from outside the state.
For appointment of Judge of High Court, there Judges of High Court as collegiums to recommend the name from the High Court, similarly, three Judges of Supreme Court collegiums should consider the recommendation proposal on the recommendation of the High Court. In this matter, there is a President reference in 1998 regarding the procedure to be followed for appointment of Judges of the High Court. It was vastly felt that collective exercise from the Judiciary as well as the Executive is required.
In the S.P.Gupta Vs Union of India, this is called the Judges case no.1, which was later appealed before a larger bench which dealt with the procedure for appointment of Judges to the High Court. Then the Judges Case (2) Report in AIR 1994 SC 268. It was further laid down the procedure for appointment of High Court Judges in the year 1998, the Government of India returned the recommendations made by the Chief Justice of India, M.M.Punchi with respect to appointment of Judges and Chief Justice of Supreme Court, and Chief Justice and Judges of High Court. For the purpose of our study about the procedure of appointment of Judges in Higher Judiciary, we have to consider the All India Judges Association Vs Union of India cases which are reported in case (1) 1992 SCC 119 Case, (2) 1993 (4) SCC 288, (3) 2002 (4) SCC 247, The law commission report in 171st and 230th are much helped for this subject matter.
The Supreme Court drew a list of basic qualities required of a Judge at Higher Judiciary level as reported in 2009 (5) SCJ 205. The need for an independent and impartial Judiciary manned by persons of sterling quality and character, undoubting courage and determination with resolute impartiality and independence, who would dispense Justice without fear or favour, ill-will or affection, is the cardinal creed Judge to the people of this great country. There can be no two opinions at the Bar that an independent and an impartial Judiciary is the most essential characteristic of a society.
After 1993, 9 Judges Constitution-Bench in regard to the process of appointment of Judges and their transfers held the matter elaborately. It was held that unwanted influences flourished well. From the Judgement in 1993, after 5 years there was a two-tier system introduced in the appointment of Judges, A collegiums consisting senior Judges of the Supreme Court, would recommend the names in the panel. The names were again scrutinised by another committee. This caused saviour criticism. Recently, the Supreme Court collegiums recommended the name of Justice P.D. Dinakaran for his elevation when there were discussions going on, in the motion for his impeachment in Parliament. It highlights the matter. If efficient and persons of quality are selected as Judges, it will add to the reputation of the Judiciary.
The Chief Justice of India Justice.Lahoti warned that if people once lost confidence in the Judiciary, the centre system of Democracy would ultimately collapse. But on the other hand, when a senior advocate of the Supreme Court Sri.Prashant Bhushan pointed out that same of the Judges in the Judiciary are stepping out of their track. For his comments, contempt of court proceedings were initiated against him. But it should not be a health trend to initiate contempt proceedings under the Contempt of Court Act 1971. This contempt of courts act is being pressed into service even when honest opinions by the Persons, Media and Press are expressed in good faiths which are supported by facts.
The contempt of court proceedings are used to crush down such honest opinions. But Justice Kirpal declared that because of misconduct by same Judges, the entire Judiciary is losing its credential. Ever smile then, the Supreme Court collegium has cleared 98 recommendations for the appointment of Judges of the High Court. 36 recommendations are being processed. It was hoped that these would be no vacancy in any High Court to be filled up. Every recommendation for appointment in constitutional courts is subjected to rigorous scrutinized under consultation. It will not be in-appropriate to claim that the performance of the Supreme Court collegiums during the last 18 years and the quality and quality of recommendations, made by it, would pre-empt a relook for any proposal for establishment of National Judicial Commission.
1) 116th Report of law commission recommended for setting up an All India Judicial Service.
2) For setting up an Academy for Training Judicial Officers at all levels. It also recommended for establishing National Judicial Service Commission. However, having an element of Plurality, in its information, opinion framed in any other manner is not binding on the Government Under Act 124 (2) for appointment of Judge of the Supreme Court, the opinion of the Chief Justice of India to be in-consultation with a collegiums of 4 senior Judges of Supreme Court. Similarly, Under Act 217(1) for appointment of Judge of a High Court, the opinion of Chief Justice of India to be formed in consultation with collegiums of two senior most Judges of the Supreme Court. The parameters to be considered for appointment of Judges, the following cases are to be taken into consideration :
Case Law Referred :
1) AIR 1994 SC268
2) AIR 1994 SC 1207
3) AIR 1992 SC 149
4) 200(4) SCC 524
A recent controversy arose in the case of Justice P.D.Dinakaran, who questioned the constitutional validity of Judges Inquiry Committee in two cases 1) 2011(8) SCC 474, 2) 2011(8) SCC 380 P.D.Dinakaran Vs Judges Inquiry Committee.
The court of law is respected, when it rules by authority of its reason and not by reason of its authority.
In S.P.Gupta case, Supra, the Majority Judgment of the Supreme Court held inter-alia, the opinion of the Chief Justice of India does not have primary in the matter of appointment to the superior Judiciary that such primary is with the central government, the Executive, which is to take the decision after consulting all constitutional functionaries. But, the Central Government is not bound to act in accordance with the opinion of the constitutional functionaries, consulted even if their opinion is Unanimous or Identical. The literal meanings of “Consultation” in Article 124(2) and Article 217(1) in relation to all consult together with the final authority given to the Central Government, which gives rise to the occasion to its consideration. But, the decision in S.P.Gupta case has an impact on the Independence of Judiciary and it was noticed with grave, concern in Subhash Sharma Vs Union of India, which pointed out that an independent, non-political Judiciary is Crucial to the Sustenance of our chosen Political System. The quality of Judiciary cannot remain unaffected and in turn the process of selection of Judges took the view that the primary of the Chief Justice of India in the Judicial setup of the country was seriously detracted and whittled down the very significance of the “Consultation” in the whole constitutional scheme, read in the context of separation of Powers and the Cherished Values of Judicial Independence. The term “Consultation” in effect meant for concurrence. But however, the matter of appointments to the Superior Judiciary should not be left to the exclusive discretion of the Executive.
The due consultation will ensure the independence of the Judiciary at the time of appointment and to prevent any political consideration in this regard. The provisions of the constitution expressly provide for consultation with the Chief Justice of India, since his role cannot be of any lesser significance than that of Lord Chancellor. The consultation also assures un-impeachable integrity for appointment and elimination of doubtful persons. However, the stress is that the Superior Judiciary must necessarily comprise of Men of Competence and integrity, who can be trusted to deliver Justice according to the constitution and the laws. The provisions of Articles 124(2), 217(1) expressly contemplate that the candidate selected for appointment to the superior Judiciary is one, who is selected by the common consent of both. The selection process is fairly representative of the general section of the society.
So far as the aspect of Primary of the Chief Justice of India (C.J.I) is concerned that the Central Government, are both required to participate in the selection process for the Superior Judiciary. The requirement of consultation and weight given to the opinion of the Chief Justice of India would eliminate political influence at the initial stage of the appointment itself. The process of consultation would reduce the executive element to the minimum and eliminate political influence.
 2002 (4) SCC 247
 AIR 1991 SC 631
 AIR 1982 SCC 149
 AIR 1982 SC 149