Union Law and Justice Minister Kiren Rijiju on October 17 said that the people of the country are not happy with the collegium system and that as per the spirit of the Constitution of India, it is the job of the government to appoint judges.[1]

An independent judiciary depends upon the openness and transparency to be maintained in the appointment of judges. Such transparency is an important requirement for sustaining public confidence in the judiciary. The interference of other organs in the appointment of judges blocks such a path of transparency and made it a closed system. The history of appointment process before independence shows that the procedure for appointment of judges under the Government of India Act, 1919 and Government of India Act, 1935 was in the absolute discretion of the Crown. After the appointment, the tenure of the judges was governed by ‘doctrine of pleasure’. Doctrine of pleasure originated from common law and was a rule in England which stated that a public servant could hold his office according to the Crown’s pleasure.

During the tenure of President V.V Giri, in 1973, a sudden alteration had popped up in the procedure of appoint the Chief Justice of Supreme Court and this is when the supersession of judges took place. Till 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice. In 1973, three senior most judges were super ceded. The supersession of three senior judges and the appointment of A.N.Ray as Chief Justice of the Supreme Court on April 25, 1973 and, three and half years later, the supersession of Justice H.R Khanna in favour of Justice M.H Beg generated considerable heat in judicial and political circles.

The Indian judiciary has been facing problems throughout. When the problems were political, they intervened into the independence of the judiciary and the decisions were made partial as a result of pressurization. The whole period of ‘supersession of judges’ came into existence because the Government was dissatisfied with the decision of the court. This, giving rise to political rivalry, affected the judiciary and the general public. A number of proficient judges were lost who resigned with protest and justice delivery became weak. On the point of justice delivery, even the Union Law Minister stated that if appointments keep the judges constantly busy, their primary job of justice delivery gets affected and hence, he suggests the job of appointment being instilled with the Government and the ‘consultation’ being ‘concurrence’ only.