Arushi Anthwal
Maharashtra National Law University, Mumbai
Judicial appointments in India ignite a controversy of their own. Sometimes burning, sometimes subtle, the various nuances building from how the judges of the fastest growing democracy are appointed are crucial especially when the Indian Supreme Court has now emerged as one of the most powerful in the world.
How are judges appointed in India?
Judicial appointments in India are carried out through a Collegium System, which is composed of the Chief Justice of the court and four other senior most judges of the court both in case of Supreme Court as well as High Courts. Thus, it is a system, which mandates appointment of judges by the judges themselves making India the only constitutional democracy where the judiciary appoints its own judges.
The evolution of the collegium system, which happens to be an extra constitutional body, came to being through a series of Supreme Court judgments, now prevalently known as the three judges cases:
- S.P. Gupta v. President of India, AIR 1982 SC 149
Upon analysis of Articles 124 and 217 of the Constitution, which lay down the provision for appointment of Supreme Court and High Court Judges respectively, the Court held that in making such appointments the president is only to consult the Chief Justice of India. Herein the word ‘consultation’ used in the said articles does not signify that the President’s decision must be in ‘concurrence’ with that of the CJI.
- Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441
SC’s altered position was revealed when a 9-judge bench held that ‘consultation’ under articles 124 and 217 would in fact mean ‘concurrence’ or ‘consent’. As a result, the opinion of the CJI was made binding on the president for the purpose of making judicial appointments.
- Special Reference No. 1 of 1998, Re: (1998) 7 SCC 729
Subsequently, in 1998, the President of India invoked the advisory jurisdiction of the Supreme Court for the purpose of seeking clarification on appointment of judges and the requirement of concurrence of the CJI’s opinion in the same. In this case, the court clarified the position of the collegium in terms of judicial appointments, handing over substantive power to the judiciary. The court prescribed the composition of the collegium—CJI and four senior most judges for Supreme Court appointments and two senior most judges in case of High Court appointments.
An attempt was made to include traces of executive power in the appointment system with the enforcement of the 99th Constitutional amendment in 2014, which proposed the creation of a National Judicial Appointment Commission (NJAC) for the purpose of making judicial appointments in higher judiciary. The NJAC composition, in addition to the CJI and two SC judges included the Union Law Minister and two other members to be nominated collectively by the CJI, the Prime Minister and the leader of the opposition. However, the Apex Court struck down the 99th Constitutional amendment holding the same to be unconstitutional[i] and in turn proclaiming once again, the ‘primacy of the judges’[ii].
Needless to say, the efficiency of the collegium system has been a point of debate and concern primarily due to its undemocratic nature. The system does not emerge from the constitution or any act of the parliament. On the contrary, it is the brainchild of the judges themselves devoid of any direct or indirect involvement of the ‘will of the people’ as mandated in a democracy in the selection of persons who become responsible to undertake constitutional review.
The inefficiencies in the appointment system can be categorized as follows:
a.) Lack of Transparency: there is no transparency in the selection criteria used to determine on what basis the collegium made its choice. This brings the merit of the judges as well as their legitimacy under question.
b.) Lack of democratic legitimacy: as mentioned above, the collegium is an extra constitutional body and the judges appointing themselves without any confirmation or participation of the government raises questions of legitimacy. Prominent legal scholar and law professor Jeremy Waldron has spoken sharply of this lack of legitimacy. He asserts that this in fact makes the judges self-conscious as a result of which when they undertake constitutional review, they try to justify their own legitimacy by relying on what other courts have done and the exact language of a statute rather than going into the heart of important matters.[iii] Constitutional law expert and Harvard Professor, Mark Tushnet also acknowledges the problem of legitimacy especially in the context of judicial review as he remarks, “Courts may design some doctrines to reflect their sense of their own limited abilities, not to reflect directly substantive constitutional values.”[iv]Thus, in defiance of the essence of a democracy, the system lacks accountability and scope for public scrutiny. In fact, the then Finance Minister, Arun Jaitley went on to call it “tyranny of unelected over the elected.”[v]
c.) Absence of Principles of Natural Justice: the present system raises serious concerns in terms of fear of nepotism as well as personal animosity sometimes influencing the collegium choices. In fact, in 2009 even the Law Commission of India acknowledged that nepotism and personal patronage plagues the collegium system. In July 2019 Justice Rang Nath Pandey of the Allahabad high court wrote to the Prime minister raising similar concerns of nepotism, casteism, lobbying and favoritism that weaken the legitimacy of the collegium system.
Comparative Reform: A case for Judicial Appointments in U.S.A.:
Owing to the problems mentioned above which make the collegium system inefficient in a constitutional democracy like India, need for reform is imminent. In the light of the same, an attempt has been made to make a comparative analysis of the judicial appointments in the United States of America:
Broadly, the most significant concern in the present collegium system is its undemocratic nature and all other problems seem to flow from this particular aspect itself. Thus, when looking for reform, one will have to rely on a practice that involves a more active role of the democratically elected executive while at the same time maintaining judicial independence and the ideal of checks and balances.
Both these factors occupy a place in the judicial appointment procedure in the United States of America. Herein, the President nominates the Supreme Court judges and such nomination is subject to approval by the senate. Thus, the executive and the legislature are both involved in the process offering democratic legitimacy to the appointment.
Such democratic legitimacy is also preserved from any attack on judicial independence because once appointed, judges of the SC vacate the office only upon death or resignation keeping them free from any active political influence or the need to decide in favor of the government.
Moreover, the appointment procedure in the United States does not unfold without the opinion of the legal stakeholders. As a tradition the president seeks and considers the opinion of the Senate Judiciary Committee, the department of justice as well as the existing judges in the federal court.
The senate approves or rejects the president’s nominee based on the recommendations of the Senate Judiciary Committee which conducts public hearings of the nominee, takes the FBI’s support in conducting a background check and verifying credentials of the nominee and considers the advise of the American Bar Association’s Committee on Federal Judiciary regarding the suitability of the candidate for being a judge of the Supreme Court.
The factors above make the appointment procedure extremely transparent as well as democratic leaving no room for questions of legitimacy. Moreover, when the appointing authorities are aware of the public scrutiny they are under, it raises accountability and reduces chances of any compromise playing out.
REFERENCES:
[i] Supreme Court Advocates-on-Record Association v. Union of India (The NJAC Judgment), (2015) 11 SCALE 1
[ii] The Primacy of Judges in Appointment, Gautam Bhatia, DOI:10.1093/oso/9780199485079.003.0011
[iii] Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L.J. 1346 (2006).
[iv] Mark Tushnet, Taking The Constitution Away From The Courts (1999).
[v]Democracy can’t be a tyranny of the unelected, says Jaitley, Oct 19 2015, available at: https://www.business-standard.com/article/current-affairs/democracy-can-t-be-a-tyranny-of-the-unelected-says-jaitley-115101900027_1.html
