This article has been written by Nitika Malik, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution, and edited by Oishika Banerji (Team Lawsikho).
The phrase “Reform that you may preserve” refers to the need for reform in the process of judicial appointments in order to preserve the independence and integrity of the judiciary. The judicial hand of the government is an essential pillar of a democratic society and is responsible for ensuring that the rule of law is upheld and that the rights of citizens are protected. In order for the judiciary to fulfil this role effectively, it must be independent, impartial, and free from political influence. The issue of judicial appointments has been contentious in many countries, including India, where the process of appointing judges to the higher judiciary has come under scrutiny several times. Some have argued that the current system of judicial appointment (collegium system) is opaque and lacks transparency, leading to concerns about the independence of the judiciary and the impartiality in the process. This has led to calls for reform of the judicial appointment process, in order to ensure that the judiciary remains independent and impartial, and that the public has confidence in the justice system. This article is a guide to judicial appointments in India and events before and after it.
The collegium system of judicial appointment
The current system of judicial appointment, the collegium system, had come into existence in 1993, after the judgement of Supreme Court Advocates-on Record Association vs Union of India (1993). In this system, the Chief Justice of India, along with four other judges of the Supreme Court, decide the judicial appointments and other related matters within its ambit. The system has no provision in our Constitution or successive amendments and is often pointed for favouritism, nepotism and corruption. It has no process to deal with a complaint against a particular judge involved in corruption and bias. The nine-judge bench of the Supreme Court of India, by means of the 1993 case, changed the meaning attached with the phrase “after consultation with” of Article 124(2) thereby eliminating executive’s role in judicial appointment, vesting the same completely upon the Indian judiciary. This seemingly innocent and innocuous change in semiotics was, in reality, an act of rewriting the Constitution by the judiciary, an act that had thrice been rejected during the Constituent Assembly debates. The collegium system had evolved through a series of cases as have been discussed hereunder.
First Judges case
Appointment of judges first came under the judicial radar in the case of S.P. Gupta vs. Union of India (1981) which is familiar by the name of the First Judges case. In this case, the Union Law Minister by means of a circular had informed the chief ministers of all the states that in the case of judges of the High Court, the appointment of the same should as far as possible be from outside the state in which the high court is located. Further, the addresses of the letter were requested to obtain the consent of all other additional judges working in the high courts, who were to be appointed as permanent judges in other high courts across the nation. A favourable response came from the addresses end as many of them were in consonance with the executive to be appointed as permanent judges in high courts outside their domiciled state. Thus, in the First Judges case, the concept of ‘judicial independence’ in line with the interpretation of the term ‘consultation’ under Article 124(2), was discussed and the executive’s primacy over the judiciary in cases of judicial appointment was accepted by a 4:3 majority in this case.
While explaining the term ‘independence of the judiciary’, Justice PN Bhagwati stated that the concept of being a noble one serves as a source of inspiration for constitutional schemes. Coming to the subject matter of judicial appointment of the Supreme Court, he opined that consultation of the Chief Justice of India (CJI) stood as a mandate but the same did not restrict the opinions of other judges of the Supreme Court, and the high courts, as was deemed to be necessary by the Central Government. Sole consultation with the CJI was not viewed as satisfactory as wisdom and experience demanded that no single power should be a monopoly when it came to judicial appointments.
Second Judges case
In the case of Supreme Court Advocates on Records Association vs. Union of India (1993), commonly known as the Second Judges case, a nine-judge bench of the Apex Court overruled the First Judges Case. Before delving into this case, it is necessary to mention the case of Subhash Sharma vs. Union of India (1990) where the First Judges Case was first challenged before a three-judge bench on the ground that the decision was not reasoned enough. With the consequence of this case being referred to a larger bench, the 1993 case came into being. The petitioners in the 1993 case had claimed that the executive had terribly failed to abide by its responsibilities of appointing judges as appointments in high courts had not taken place in a timely manner thereby failing to select the most qualified set of judges for the same.
The two issues that were addressed by the Apex Court in this case were:
- Whether the CJI’s decision-making in case of judges appointment and transfer in the Supreme Court and the high courts was entitled to primacy?
- Is the fixation on the strength of judges in cases of high courts justifiable?
While answering both the issues in affirmative, the Apex Court stated that the appointment and transfer of judges in the case of the Supreme Court rested entirely on the CJI. In the case of high courts as well, CJI’s opinion holds relevance. It was further stated that the opinion of the CJI did hold primacy over all others. This was confirmed by stating that no appointment of any judge to the Supreme Court or any high court can be made unless the same was in line with the opinion of the CJI. By a 7:2 majority, the nine judges bench of the Supreme Court of India overruled the decision made in the First Judges case.
Third Judges case
After the Second Judges case, there were a considerable number of questions in the minds of the law makers and the law protectors concerning judicial appointment which were collectively answered in the Third Judges case. The President of India, in the exercise of his power under Article 143 of the Indian Constitution, referred nine questions to the Supreme Court In Re: Special Reference No. 1 of 1998, for its opinion on the same. In the Third Judges case, the nine judges bench unanimously, had opined the following:
- The phrase ‘consultation with Chief Justice of India’ in Articles 124(2) and 217(1) of the Indian Constitution does not signify sole opinion of the CJI, instead it symbolises plurality opinion of judges.
- CJI must be making recommendations concerning appointment of judges of Supreme Court and transfer of chief justice of high courts in consultation with four senior most puisne judges of the Apex Court.
All about the National Judicial Appointments Commission (NJAC)
The National Judicial Appointments Commission (NJAC) was formed by the Constitution (Ninety-ninth Amendment) Act, 2014, with a vested responsibility of appointing, recruiting and transferring judicial officers under the Union and state governments. Former Law Minister of India, Ravi Shankar Prasad had introduced the National Judicial Appointments Commission Bill on 11th August 2014, which was passed in Lok Sabha and Rajya Sabha on 13th and 14th August, 2014, respectively. After receiving President’s assent on 31st December, 2014, the Bill was ratified by 16 legislatures with the same coming into effect on 13th April, 2015. As a consequence, Articles 124 A, B and C were added in the Indian Constitution. While Clause A and B defined the NJAC, Article 124 C was responsible for empowering the Parliament to formulate new laws which will be responsible for regulating the procedure of judicial appointments.
It was suggested that the NJAC would have six members, three of whom would be drawn from the judiciary and three from outside. The Collegium system would be replaced with a “more transparent and efficient” one under the NJAC, while the veto power given to the representatives of the judiciary would retain the independence of the judiciary. Political leaders and members of the civil society would also ensure more accountability in the process of choosing and appointing judges.
The Fourth Judges case
It was on October 16 2015, a constitutional bench of the Apex Court headed by Justice JS Khehar with other members of the bench including Justices MB Lokur, Kurain Joseph, Adarsh Kumar Goel and Chelameswar, had struck down the National Judicial Appointments Commission Act declaring the same to be in violation with the basic structure of the Indian Constitution (Supreme Court Advocates-on-Record-Association and Ors.vs Union of India (2015)). The constitution amendment and NJAC Act were therefore replaced by the1993 collegium system that was born after the Second Judges case for the appointment of judges to the Supreme Court and the high courts.
This had sparked passionate discussions on the need to strike a delicate balance between independence and accountability, the democratic mandates of the elected government, and judicial independence which is an intrinsic component of the fundamental system. The executive’s resistance and tardiness with regard to some judicial selections, as well as the removal of independent judges, have caused a number of disputes since the judgement, which has raised cause for alarm.
In the Fourth Judges case, the Apex Court was of the view that as judicial independence falls under the basic structure of the Indian Constitution, the decision made in the NJAC case had interpreted the concept of ‘judicial independence’ in a wrong way.
Arguments for the NJAC
- Transparency and accountability: One of the main concerns with the current process of judicial appointments is the lack of transparency. The process is often shrouded in secrecy, with limited information available to the public about the criteria used to make appointments, the names of the candidates being considered, and the reasons behind the final decision. This lack of transparency raises questions about the impartiality of the process and has led to allegations of political influence and nepotism.
In order to address these concerns, there have been calls for greater transparency and accountability in the process of judicial appointments. This could involve the appointments of judges under the public rader, as well as publishing the names of the candidates being considered and the reasons behind the final decision. In addition, there have been proposals to make the process more inclusive and consultative, with greater involvement of civil society organisations and increased consultation with legal experts and members of the public.
- Inclusivity and diversity: Another issue with the current process of judicial appointments is the lack of diversity in the higher judiciary. This has led to concerns that the judiciary may not reflect the diversity of the wider society, and that the views and perspectives of minority groups may not be adequately represented. In order to address this issue, there have been calls for the appointment process to be more representative, with a focus on increasing the diversity of the judiciary.
One of the ways in which this could be achieved is through the use of affirmative action measures, such as quotas for women and members of minority groups. However, this approach has been criticised by some, who argue that it risks compromising the quality of the judiciary and could lead to the appointment of unqualified candidates. In order to address this issue, there have been calls for a more nuanced approach, which takes into account the need for diversity, while also ensuring that appointments are based on merit and experience.
Arguments against the NJAC
Some of the arguments against NJAC have been provided hereunder:
- NJAC can be held responsible for jeopardising judicial independence as the same being a part of the basic structure of the Indian Constitution vests the right of judicial appointment solely on the judiciary itself.
- NJAC is reflective of arbitrariness in the process of judicial appointment as the same leaves room for biasness to take over thereby being in violation of Article 14 of the Indian Constitution that provides for equality and non-arbitrariness in decision making.
- Misusing of veto power by the members of NJAC is another concern that ipso facto threatens judicial independence.
- The role of CJI will stand limited if the executive is given a way to deal with judicial appointment and transfer. This is because the role of CJI is not limited to dispute resolution but also extends to constitutional review.
Reforms and revolution in judicial appointments
It is crucial to think carefully about judicial appointments in India thereby getting inspiration from some reforms carried out in other countries. The Constitutional Reform Act of 2005 established an independent Judicial Appointments Commission (JAC) and established the framework for judicial appointments in the United Kingdom. In this, appointments are supposed to be made in accordance with the Act “solely on merit” and only after the selecting body is satisfied that the applicant is “of good character.” The JAC chooses applicants based on five predetermined merit criteria: academic prowess, character traits, the capacity for empathy and fairness, interpersonal abilities, and efficiency.
In addition to the issues of transparency and diversity, there have also been concerns about the role of the executive in the appointment of judges. In many countries, the executive has a significant role in the appointment process, and there have been allegations of political influence and pressure being exerted on the judiciary. In order to address these concerns, there have been calls for the judicial appointment process to be more independent, with a greater role for the judiciary in the appointment of judges.
This could involve the establishment of a judicial appointments commission, which would be responsible for making recommendations to the executive on appointments to the higher judiciary. The commission would be independent and impartial, and would be made up of representatives from the judiciary, civil society organisations, and legal experts. This approach would ensure that the appointment process is independent, impartial, and free from political influence.
The Collegium’s supporters have long argued that doing so would preserve the independence and impartiality of the judiciary by preventing political influences from permeating it. Although it has come under fire for encouraging judicial overreach, nepotism, and the nomination of corrupt judges, the problem may not be properly attributed to the collegium’s makeup alone. It is not essential that the collegium be reorganised to include outside members, as in the NJAC, or even a completely autonomous organisation. Who appoints the judges won’t matter if the mechanism of appointment is regulated. The answer resided in two crucial actions, namely, enhancing transparency and setting clear appointment standards.
In conclusion, one must state that there is no denying the Indian judiciary needs structural and administrative reforms. The higher judiciary finds itself at a crossroads where, on one hand, it receives praise for its ability to make the moral universe’s arc trend towards justice, but on the other, it receives harsh criticism for its ad hoc, inconsistent, and opaque style of functioning. Without a doubt, the institution’s decision-making will be influenced by how it views itself. Once the judiciary evaluates the Collegium system of appointments, the recent dispute surrounding judicial appointments, including the NJAC case, the delay in judicially recommended appointments, and the debate over seniority breach, can also be handled.
To say that “judicial responsibility” and “judicial independence” are mutually exclusive ideas would be disingenuous. A delicate balance between the judiciary’s independence from political interference and greatest devotion to its constitutional obligation to uphold individuals’ fundamental rights and protect the structures and principles of constitutional democracy should be sought. In order to guarantee that only meticulous, tenacious, and effective judges are appointed to senior positions in the judiciary, a significant effort should be made to create objective standards. Affirmative action for underrepresented communities should be provided by this selection process, and it should be ensured that appointments reflect the constitutional objective of diversity and inclusion. In order to create a truly democratic and merit-based method for appointing judges, the discussion must go beyond the issues of judicial supremacy.
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