The judiciary is considered as a pious, incorruptible institution upholded by men of integrity. Transparency is required to maintain the public’s impression of the judiciary as impartial. The transparent procedure for judicial appointment would eliminate the chances of arbitrariness and would uphold the integrity of Rule of law.
In a collegium system the appointment and transfer of judges happen on the recommendations of the Chief Justice and four other senior most judges. There is no intervention or say of the union in it. The Apex court’s collegium consists of the CJI & 4 senior most judges and similarly in HC it is headed by the Chief Justice of that High Court. The government receives the suggested candidate’s names after it has been approved by the CJI & his collegium. The government can take limited actions only after the higher judiciary has appointed the candidates. The union can only inquire via the IB (Intelligence Bureau) and raise objections against the suggestions of the collegium. However if the same candidate is reiterated the union under the constitution bench judgments is confined to appoint him or her as a judge.
The Drafting Committee had a brief symposium regarding the provisions for appointment of judges. The main concern of the Committee was to keep the judiciary independent, striking a balance between governmental organization and judicial administration. The committee referred to the Sapru Committee report which highlighted the colonial system of appointment for empowering unrestrained executive discretion and apprehended the necessity for an independent judiciary to check against anti-majoritarian bulwark in Constitutional democracy. The recommendations of the Union committee were accepted where it mandated the consultation of CJI during appointment.
TT Krishnanachari underlined that although there is a need for an independent Judiciary, it cannot take its independence as a crown of superiority over the other organs of government. BR Ambedkar stated that consultation from CJI is necessary for judicial independence which is the fundamental executive nature of power for appointment. Secondly, Ambedkar also acknowledged the probability that there may be abuse of authority by the Chief Justice if the power remains unchecked. Importance was stressed on having a mutual relationship between the executive and the judiciaries to work together informs and appoints judges.
Thence, the drafters maintained an inter-institutional equilibrium approach for the appointment and the final draft for appointment of judges under Indian constitution read as:
Article 124(2): The Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217: The Judge of a High Court shall be appointed by the President’s consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
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