NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

APPOINTMENT OF JUDGES IN INDIA AND USA: A COMPARITIVE

ANALYSIS

Subject: Comparative Constitutional Law

Submitted by: - Submitted to:-

Hemant Verma Prof.(Dr.) Vinod Dixit
LL.M (2019 LL.M 09) Ms. Saubhagya Bhadkaria

1st Trimester
NLIU, Bhopal
 ACKNOWLEDGMENTS

Carrying out any research project is a collaborative effort. It can never be born in isolation
but is the result of the contribution, thought and effort of various people. This project
consumed huge amount of work, research and dedication. The successful compilation and
completion of this project for time bound submission has been conceived out of the direct and
indirect help and support of many, towards whom I would like to express my deep gratitude.

I take profound sense of pride to convey my gratefulness towards my Professors whose

guidance and patience has been of immense help in the making of this project. In the end, I
would also like to thank my family and friends for being a fountain of love and support
during the making of this project.

I will strive to use gained skills and knowledge in the best possible way, and I will continue
to work on their improvement, in order to attain desired career objectives.

Hemant Verma

2019 LL.M. 21
Table of cases

 Jon E. Edmond v. United States

 Marbury v. Madison
 Mistretta v. United States
 Morrison v. Olson
 Re Presidential Reference case
 S. P. Gupta v. Union of India
 Samsher Singh v State of Punjab
 Subhas Sharma v. Union of India
 Supreme Court Advocates on Record Association v. Union of India
 Union of India v Sankalchand Himatlal Sheth
 United States of America v. Fermin Hilario

Statutes

 Constitution of America,1789
 Constitution of India,1950
 Contents
Table of cases ............................................................................................................................ 3
Statue......................................................................................................................................... 3
Synopsis..................................................................................................................................... 4
Title of study ............................................................................................................................. 5
Review of Literature ................................................................................................................ 5
Objectives.................................................................................................................................. 5
Scope of study ........................................................................................................................... 6
Research Methodology ............................................................................................................ 6
Research Problem .................................................................................................................... 6
Hypothesis................................................................................................................................. 6
Introduction .............................................................................................................................. 7
Appointment of judges in India .............................................................................................. 9
Prior practice followed for Appointment of Judges ............................................................... 9
Constitutional provision ....................................................................................................... 10
Landmarks Cases and Transformation of Procedure ........................................................... 11
Appointment of judges in USA ............................................................................................. 15
Prior position to Constitution in United State of America ................................................... 15
Constitutional Provision ....................................................................................................... 16
Process of Appointment ....................................................................................................... 16
Judicial interpretation ........................................................................................................... 17
Comparative analysis of Appointment of Judges in India And USA................................ 19
Conclusion and Suggestions .................................................................................................. 22
Bibliography ........................................................................................................................... 22
Synopsis

The topic on “Appointment of Judges in India and U.S.A- A Comparative Study” is taken
with a view to analyze in detail the existing system of appointment of judges in India and
U.S.A and to suggest more effective process of appointment of judges in the background of
the said comparative study. Considering all the above aspects and to facilitate the discussion
and perfect solutions for above problems and for thematic development of the subject the
research work is deals with the historical background as to the process of appointment of
judges in India and U.S.A. This chapter primarily deals with the pre-constitutional status as to
the appointment of judges in India and U.S.A. The Indian Constituent Assembly debates
while framing the provisions relating to appointment of judges are discussed in this chapter.
The research paper also highlights the constitutional provisions as to the appointment of
judges in India and U.S.A and interpretations made in leading judicial decisions by the apex
court on the said issue. Moreover the paper deals with comparative analysis as to the method
of process of appointment of judges followed in India and U.S.A.

Title of study

Appointment of Judges in India And USA: A Comparative Analysis.

Review of Literature

The book “The History, Philosophy and Structure of the American Constitution”, by
Stephen B. Presser, Douglas W. Kmiec gives full insight into the historical and
philosophical antecedents as well as the case law of the separation of powers and federalism.
The book is designed to link the “roots” of the American government to its structural design.

M.P. Jain’s, Indian Constitutional Law book is an authoritative, evergreen classic on

Indian constitutional law. This book is a thematic presentation of the complex and multi-
dimensional subject of Constitutional law in a lucid, comprehensive and systematic manner.

Introduction to the Constitution of India by D. D. Basu is undoubtedly one of the most

pioneering works on the Indian Polity and Constitution. The book offers a systematic study of
the Indian Constitution, and not only elaborates various provision of the Constitution of India
but also covers the historical background of the constitution, its philosophy, outstanding
features, nature of the federal system etc.

Objectives

 To understand the process of appointment of Judges in India

 To study the process of appointment of Judges in USA.
 To Analyse the comparative process of Both the Countries.

Scope of study

The scope of the study is to know about the Process of appointment of judges under the
constitution of India and the USA.

Research Methodology

Researcher in this work has been done having relied mainly on ‘Doctrinal Method’ of
research.

Research Problem

The research problem addressed in this project work is that whether the provisions of the
Indian Constitution as to the process of appointment of judges are clear and unambiguous or
it needs to be supplemented by the judicial interpretation or it needs a constitutional
amendment.

Hypothesis

The existing process of appointment of judges as established by the judicial precedents is

satisfactory.
Introduction

“Judges have, of course, the power, though not the right, to ignore the mandate of a statute,
and render judgment in despite of it. They have the power, though not the right, to travel
beyond the walls of the intertices, the bounds set to judicial innovation by precedent and
custom. None the less, by the abuse of power, they violate the law”1

-BenjaminN.Cardozo

For a democracy to survive in a state, it is essential that the citizen of the state have faith in
the judicial system. After the creator, the judges are entrusted with the power to take life and
put a person behind the bar or punish him. So in order to make a society just where justice is
law of land judiciary plays a very vital role in “delivering justice”. The Judgment given in a
case not only affects the parties to the trail but the entire community. So the judges cannot
make any mistake while delivering justice.

In constituent assembly debate the framers of constitution has wisely build the system of
checks and balances in order to bring three organs of government,
executive/legislature/judiciary. The framers knew that the absence of checks and balances
would result in ineffective governance. The citizen of India goes before the Judiciary for
justice, interpretation of laws on matters of constitutionality and legality of various functions
exercised by various authorities. The judiciary in India is unlike United State which is dual
(federal courts and state courts) is integrated i.e. adjudicate both central and state laws. The
hierarchal structure of judiciary is – at apex level, Supreme Court, High court of each state
and District court. The appointment and removal of Supreme Court judges is governed by
Article 124 of Constitution of India. Article 125 to 129 talks about certain incidental matter.
Article 127 talks about appointment and removal of High Court judges. The present position
related to appointment of judges is result of judicial interpretation in S. P. Gupts v/s Union of
India, Supreme Court Advocate on record Association v/s Union of India and especial
reference no. 1 which departed existing system of appointment of judges followed till 1981
i.e. appointment were made by executive by in consultation with judiciary but executive
played a dominant role.

1
Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135
This project work also make a comparative analysis of appointment and removal of judges in
India and USA as both federal countries have similar attributes in their constitutions, such as
Independent judiciary. The comparative analysis aims to analysis the present system of
appointment of judges and to provide suggestion for more transparent and effective methods
of appointment of judges.
Appointment of judges in India

The Process of Appointment of Judges have gone through many changes. Now the president
is responsible for appointment of Supreme Court judges. The Chief of Supreme is appointed
by president of the country with consultation of judges of Supreme Court and High Court.
And for appoint of other judge is president consult the Chief justice of India. Article 124(2) is
related to appointment of judges of both Supreme Court as well as High Court by president.
But there is no fixed number of judges to consulted before making any appointment by the
president and moreover the advice of the judges are aren’t bound on the President. He may
ignore or accept the advice of the judges.

Prior practice followed for Appointment of Judges

During the constituent assembly debate on appointment of judges of Supreme Court three
proposals were made for consideration. First, the president shall make appointment with
consultation of CGI, second, the appointment shall be made by two-third majority of vote by
parliament and thirdly the appointment shall be in consultation with Rajya Sabha. Dr.
Ambedkar ruled out involvement of legislature in such appointment because it would lead to
political pressures.

On question of appointment of CJI was regarded as appointment by president, Dr. Ambedkar

explained that appointment would be after consultation with judges of Supreme Court and of
High Court in the state as president may think. Prior to 1973, the practice was the person who
was the senior most judge of the Supreme Court was appointed Chief Justice of India by the
President. This practice became a convention and was followed. In 1956, The Attorney
General Mr. M.C. Setalvad who headed the Law Commission criticized this practice and said
that seniority shall not only be considered as a sole criteria for appointment of Chief Justice
of India but his administrative competence, expertise and merit shall also be considered. This
report(14th report) of commission was published in 1958 and till 17 years no attempts were
made to implement it by the government. Instead the seniority criterion was followed. For
appointment of Chief Justice of India. In 1973, the old practice was brought down by the then
government within few hours of judgment of fundamental right case. Mr. A.N. Ray was
appointed as the CJI who supersede 3 of the senior judges. These 3 judge resigned
immediately and this raised a great controversy.
The government justified such action on the following-

1. The foremost reason was that under Article 124 of Constitution of India the President
have power to appoint any person(judge) as Chief Justice of India who he finds
suitable for the post.

2. The recommendation given by the 14th Report of Law Commission was followed. But
the report meant that the appointment shall be on the basis of merit and expertise of
judges and not on the merit in the eyes of executive.

3. The government also argued that the executive shall take into consideration the social
ideology of the judge. India is a democratic country which runs by a political party
and the judges should subscribe to the ideology of the party.

Constitutional provision

Article 124(2)2 and Article 217(1)3 provides for the Appointment of Judges of Supreme Court
and High Court, respectively.

According to the Constitution of India, the president is constitutional head. He exercised his
power upon aid and advice of the council of ministers. The executive power of union is
exercise by its union ministry in the name of president. Under Article 124(2) talks about
“consultation” with the Chief Justice of India, Judges of the Supreme Court or with the
Judges of the High Court the president shall make appoint of judges of Supreme Court. The
2
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal
after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years:
Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall
always be consulted:
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause ( 4 )
3
Appointment and conditions of the office of a Judge of a High Court
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after
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, and shall hold office, in the case of an
additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two
years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article
124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme
Court or by his being transferred by the President to any other High Court within the territory of India
constituent assembly debates shoes that some people were of the opinion to use
“concurrence” instead of “consultation” but the suggestion was not implemented. In 1993, SC
interpreted the word “after consultation” as “with the concurrence” of court. Moreover
suggestion were also provide for approval of parliament but not agreed by Dr. Ambedkar as
he was of the opinion to kept legislature away from Judiciary so as to make the judiciary
independent.

Landmarks Cases and Transformation of Procedure

S.P GUPTA v. UNION OF INDIA4

This case was about the transfer of judges from one high court to another, without
ascertaining the consent of the judge. This matter was crucial as to the independence of
judiciary. The court held that the expression consultation in article 124 and article 217 does
not mean concurrence but have the same meaning as stated in article 222. Of the constitution
of India and ultimate power of appointment is with the president.

S.C Advocates-on-Record Association v. Union of India5

The earlier judgment of first judge was overruled in this case. The court held that if there is
ant conflict between president and chief justice of India regarding any appointment of judge ,
the chief justice of india shall have the primacy. In this case the Supreme Court by 7:2
majority laid down and the guiding principle and procedural law for the purpose of
appointment of judges to Supreme Court. The court ruled that the there shall be a “collegium
system”. For appointment of judge of Supreme Court, the collegium shall consist of CJI and
2 senoir most judges. And for the appointment of judges’ high court the collegiums shall
consist of chief justice of that high court along with 2 senior judges of high court. In this case
the majority held that for appointment of judge in Supreme Court the proposal shall be
initiated by Chief justice of India. For appointment of judge in high court by chief justice of
that high court and for transfer of chief justice of high court the initiation of proposal shall be
done by chief justice of India.

4
AIR 1982 SC 149
5
AIR 1994 SC 26
Presidential reference Case6

While answering a presidential reference, constitutional bench of 9 judges unanimously

opined that:

1. The opinion of judiciary is reflected by the opinion of chief Justice of India.

2. The opinion of Chief Justice of India with consultation with collegiums of judges
shall be considered as primacy.
3. The collegium shall consist of the Chief Justice of India and the four senior most
Judges of the Supreme Court.
4. The appointment of candidate as judge shall be based on consensus of the collegium
and if the majority is against the appoint the candidate cant be appointed as a judge.
5. No candidate can be appointed as the judge of Supreme Court uless its appointment is
in conformity with chief justice of India.
6. Judicial review of such appointment and recommendation is available if the
recommendation is not decided by chief justice of india but by his colleagues which is
a constitution requisite.

National Judicial Appointment Commission

In 2014, parliament passed 99th constitutional (Amendment) Act, 2014 which instituted for
setting up of National Judicial Appointment Commission. The legislation aims to replace the
collegium system with NJAC.

The act provides for setting up a constitutional body i.e. NJAC. The body shall compose of-

 The Chief Justice of India, Chairman-ex officio

 2 senior most judge of SC
 Union Minister of Law and Justice, ex officio
 2 eminent person

6
Special Reference No. 1 of 1998
 Out of these 2 persons 1 shall be either a person belonging to Schedule Cast or Schedule
Tribe or Other Back word Class or be a woman.

Challenging constitutional validity of NJAC Act before the Supreme Court and later
scenario

The National Judicial Appointment Act and the Constitutional (Amendment) Act, 2014, were
challenged in many petitions before the Supreme Court. The Court by majority of 4:1
rejected the NJAC Act and held it ‘unconstitutional and void.’

“It is difficult to hold that the wisdom of appointment of judges can be shared with the
political- executive. In India, the organic development of civil society has yet not evolved.
The expectation from the Judiciary to safeguard the rights of the citizens of this country can
only be ensured by keeping it absolutely independent from the other organs of governance.”
- said the Constitutional Bench of five Judges.

Memorandum of Procedure

After 2 months of judgment of NJAC in December 2015, the SC directed the then
government to prepare a draft of ‘Memorandum of Procedure’ for appointment and transfer
of judges of the SC and HC. The court issued the certain guidelines as to what shall be
included in Memorandum of Procedure can or may include;

1. Complaints
2. Transparency in the appointment procedure
3. Secretariat
4. Eligibility Criteria
5. Miscellaneous

Thereafter the government submitted its draft Memorandum of Procedure but the same was
rejected. The differences between the Executive and the Judiciary are prevailing till date and
hence they have not agreed upon a Memorandum of Procedure yet. In April 2018, the
Government rejected the MOP prepared by the Collegiums. Therefore, the Collegiums
system governs the appointment and transfer of Judges of Supreme Court and the High Court.
The government submitted the draft but the government doesn’t maintain the separation of
executive from appointment of judiciary so the draft was rejected and till date the difference
between the executive and judiciary is prevailing. The government rejected the MOP by the
Collegiums in April 2018. So the appointment and transfer of judges of SC and HC in
governed by the Collegiums system.
Appointment of judges in USA

Prior position to Constitution in United State of America

Before the adoption of the American constitution, the America was governed by Article of
Confederation. Under this system all the function was vested with the Congress. There was
no separation of powers of executive and legislative. The first proposal presented was
Virginia plan presented to constitutional convention, which set up a Supreme Court and a
inferior federal court. The opposite parties who do not agree to Virginia plan presented New
Jersey plan which demanded for creation of single federal Supreme Court and state courts.
The state court can hear petition in first instance and appeal can lie to Supreme Court. This
will sufficient for protection of rights of the citizens.

In 1787, Philadelphia Convention was adopted which established constitution of United State
of America, where agreement was made to establish national judiciary. Later Judiciary Act,
1789 was introduced which set up a system of judiciary consisting of a supreme court, 3
circuit courts, district courts.

The constitution of America provides for presidential form of government. All the executive
powers are vested with the president so the power to appointment of federal judges vested
with the president of the country.

The justices of Supreme court is appointed by the president with consent and advice of the
senate and other judges of federal court. The judges hold the office during good behavior and
there is no fixed tenure for their retirement.

The US constitution is embedded with the doctrine of checks and balances. The president
nominates the judges of the Supreme Court and the appointment is confirmed by the senate.
Consent of the senate is necessary. This isn’t any special procedure only for judicial
appointment but for every senior appointment such procedure is followed. .The president and
the senate always zealously guard the power of nomination of a person to SC. Since the
Supreme Court started functioning Out of 132 nomination by the president, senate have
refused 27 confirmation. There are instances when president tried to apply pressure on
Supreme Court when they found court is unhelpful in pursuing certain policies of the
government. In 1937, President Roosevelt attempted to create post in Supreme Court to
sympathetic his new policies. President bush also insisted to make afro-American post in
Supreme Court. But such attempts were turn down by the senate because of the checks and
balances on the power of president.

Constitutional Provision

The judicial system of United State of America is known as dual system. The state and
federal government have their own courts i.e. federal courts and the state courts. The Federal
courts consist of Supreme Court, court of appeal and district court.

The procedure for appointment of justice of the US court is provided under Article II section
2 Clause 2 of the US constitution i.e. “Appointments Clause”7 which states that president can
nominate a person by and with the advice of the senate, appoint judges of Supreme Court.
This appointment process has gone through several changes but the basic structure i.e.
division of power between president and senate has remained same. the appointment of the
justice is made for the lifetime, a candidate is first nominated by the preside and them his
appointment is confirm by senate. There is important committee i.e. senate judiciary
committee which plays a mid way role after president nomination and before the
confirmation of senate. The president can also make appointment without the approval of the
senate when in senate is in recess. But such appointments are temporary and their term
expired at the time of end of senates nest session.

Process of Appointment

The process of appointment of judge in United States of America is discussed below-

7
Article II, Section 2, clause 2- He shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next Session.
  Vacancy - The occurrence of vacancy is first stage of appointment of judges. The
vacancy may arise from resignation, retirement, death of a judge. Also the legislation
may create new judicial positions or impeachment by the congress.

 Selection and nomination by the president- after the vacancy rise in federal court the
department of justice along with white house sends recommendation to the president.

 Confirmation by the Senate- when the president selects the nominees, the name of the
candidate is forwarded to the Senate. The Senate refers the matter to its committee i.e.
Senate Judiciary Committee. After this the committee approves the nominated
candidate with majority then the president gives its final assent and sign the
nomination.

Judicial interpretation

In case of Marbury V. Madison8- The appointment of Justice William Marbury was

challenged. William Marbury, a Federalist was appointed as justice of peace. His appoint
ment was made in the last days of John Adams presidency, and last minute appointment were
not finalized. So writ of mandamus was filed under section 13 of Judiciary Act, 1789. The
question raised was is Marbury entitled to this appointment? The Chief Justice John Marshal
said that Malbury is entitled to the appointment as the appointment was made after the
signing of nomination by the president.

The other case is US Supreme Court Jon E. Edmond v. United States9. In this case the court
has defined the term “inferior officer” as the person who is directed and supervised by the
person nominated by Presidential nomination with the consent and advice of Senate.
However the judgment of Morrison v. Olson was not been overruled, but it is treated as
precedent.

8
5 U.S. 137 (1803)
9
520 U.S. 651, 659-60 (1997)
In another case of Mistretta v. United States10, congress chose to give the appointment power
to judiciary. If the judicial body would interfere the executive branch than the appointment
made by them would be void. Though our constitution states that the three departments of
governments shall be independent but it did not stated that the three departments shall be
entirely separate from each others.

United States of America v. Fermin Hilario is another interesting case. The case was brought
by Fermin Hilario to dismiss an indictment. He states that the tenure lasting for long time
than expected appointment as interim United States Attorney contravened the applicable
federal statutes, also it violates the clause of appointment, it is also against the principle of
separation of powers so the indictment is nullified.

Generally, Attorney of United States is nominated by the President, and if senate also
confirmed such appointment than he will be appointed for four years of tenure. But in this
case the different method was chosen by Congress. After the resignation of United States
Attorney of District of Puerto Rico in May 1993, the new Assistant United States Attorney
(AUSA), named Charles Fitzwilliams was appointed by Attorney General Janet Reno. The
reason for this appointment was that the President was unable to give a name for replacement
within the prescribed date of 120 days. The tenure of Fitzwilliam was lapsed and again the
place was been vacant. Later on the new appointment of a career Justice Department lawyer,
Guillermo Gil as interim United States Attorney was been made by the judges of United
States District Court of Pureto Rico on September 9, 1993. Again the further issue was been
raised:

A) Whether the Principle of separation of powers was been effected by the Appointment?

The court held in this case that the arguments made were not reasonable. The argument could
have been that for appointment of Attorney the nomination should have been made by the
President with the consent of Senate. The appointment of Gil as interim United States
Attorney for District of Puerto Rico was according the clause of Appointment and also with
the principle of Separation of Powers. And also, the indictment against Hilario is authorized
and should not be dismissed.

10
488 U.S. 361, 381-82 (1989)
Comparative analysis of Appointment of Judges in India And USA

In both the country the appointment of judges is am executive power, which is given to the
president by the constitution of both The countries. But the difference between both is that, in
India the appointment is made with “consultation with judiciary” and whereas in Unites
States the appointment is done after the “Parliament Approval”. But in both the countries the
appointive system is that the appointment is made by executive government. Earlier, in the
Unites States the judges were appointed by “elective method” but later on this practice was
abolished in later part of nineteenth century..

The Comparative analysis of appointment of judges in India and Unites State of America can
be better be under stand by comparing both methods of appointment i.e. parliamentary
approval and consultation with judiciary in USA and India, respectively. Both the methods
are used are used in the countries to bring down the power of executive in the appointment of
judges, so as to maintain independence of judiciary and free from executive pressure.

Parliament Approval Method (USA)

Under this method of appointment of judges the executive initiated the process by selecting a
candidate, the final appoint in made by the approval of parliament. Parliamentary method is
method which keep a check on the power of the executive i.e. President as the president
nominates and by and with the consent and advice of senate the federal judges are
appointment. And there is a scope of scrutiny of appointment by public. But there is defect in
this system that if the ruling party have majority in the parliament than the appointment of
nominee selected by the executive can be easily passed by the parliament.

Consultation with Judiciary and Legal Experts (India)

On Contrary India follows a system in which the appointment of judges is done through the
consultation with judiciary. The members of constituent assembly were against the
involvement of legislature in appointment of Judges. But the Constitution of India is Silent on
the Primacy of CJI on appointment of Judges and it provide us with a balanced approach i.e.
not give primacy to executive nor judiciary. In Constituent assembly approach was co-
operative as well as consensual. Consultative process for the appointment of judges but this is
not followed in present time and the reason is unknown.
Under this method, executive government makes the appointment of judges in consult with
senior judge of Supreme Court. The Consultation may be formal or informal. The judicial
officers are in better position to assess the candidate which may be appointed as a judge.

Therefore, executive consulting the higher judiciary is a vital process in appointment of

judges in India because the higher judiciary recommended best qualified person to be
appointed as a judge. By this way the independency of judiciary is maintained. The
consultation judiciary is a committee known as Collegium which consists of Chief Justice of
India with 4 senior judges who are specialized in their field and is in a better position to make
best recommendation for appointments. Therefore, the consultation system provides for the
quality of judiciary and public confidence. However, there is a limitation that the executive
may ignore the consultation of the judiciary and appoint the candidate of their choice.

By the above discussion we draw some key point of Comparison which are as follows –

1. In India as Well as in USA, the president appoints the Judges of the Court.
But, in India president is consulted by the collegiums of Judges, consist of 4
senior most judges headed by Chief justice of India. Whereas, United States of
America candidate is nominated by the president with advice and consent of
the senate.

2. Same as USA, every judicial appointment is done ny president under his seal
and warrant. But in India the collegium system is there to make appointment
of higher judiciary i.e. Supreme Court and High Court and the lower court
judges are appointed by examination conducted by concerned high court of the
state. Whereas in United States of America procedure is same for appointment
in higher courts or lower courts.

3. In the United States of America, if there is a vacancy, the list of the nominees
are prepared after a detailed analysis and inquiry by the department such as
Committee on judiciary, Department of Justice, white house. Whereas, in
India, selection is done by the collegium.

4. In USA there is a strong system of Checks and Balances, as nominated

candidate is only appointed as judge based on the voting in senate. In India,
there is no interference of legislature in process of appointment of judges i.e.
independency of judiciary is maintained.
Conclusion

After the research it is clear that the judicial interpretation in the cases have rewritten the
Article 124(2) and Article 217 which pertains to appointment of Supreme Court and High
Court judges. The process of appointment is change through time which through judicial
interpretation. In the case S.P. Gupta v UOI first time the word “collegium” was used which
isn’t present in the constitution of India. Once again in presidential reference case Collegium
is freely used.

In this case the Supreme Court reinforced the primacy of Chief Justice of India and increase
the number of judge to be consulted by the Chief Justice of India for appointment of a judge.
I conclude that the process which has evolved after judicial interpretation is satisfactory in
India.
 Bibliography
BOOKS

 STEPHEN B.PRESSER, THE HISTORY PHILOSOPHY AND STRUCRTURE OF

AMERICAN CONSTITUTION (1928)
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (2018)
 BENZAMIN.N.CARDOZO, THE NATURE OF JUDICIAL PROCESS(1921)

ARTICLES

 Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999.
 Judicial Oversight or Overreach: The Role of the Judiciary in Modern India.
 Federal Judicial Appointments- Gavel to Gavel.
 The Appointing Power of the Executive by Alexander Hamilton Federalist No. 76.
 The Appointing Power Continued and Other Powers of the Executive Considered
Federalist No. 77.

LAW COMMISSION AND COMMITTEE REPORTS

 14 th Report of the Law Commission of India,1958

 79 th Report of the Law Commission of India,1979
 121 st Report of the Law Commission of India,1987
 214 th Report of the Law Commission of India,2008