How are judges appointed in India? Is that process fair? While many of our exposure to legal procedures is limited to the long monologues of warring advocates in court room drama scenes of movies, yet as citizens of the largest democracy in the world, a familiarity of the appointment process of the judges to the top court of the country will help us exercise our rights meaningfully. Hence the above questions deserve little explanation. How are the judges appointed? Are there any established rules? An untainted and independent judiciary is of foremost importance in a democracy. The composition and appointment of the judges to the Supreme Court and High Courts are guided by the Indian constitution. According to clause (2) of Article 124, Supreme court judges should be appointed by The President in consultation with the Chief Justice and “such” other judges of the Supreme Court and High Court as the President may deem necessary. Similarly, Article 217 prescribes that High court judges be appointed by the President after consulting the Governor and the Chief Justice of India (CJI). Is it similar in other countries? In the UK, prior to the establishment of a Judicial Appointments Commission in 2005, the Crown used to appoint judges. In the US, the President appoints with the consent of the Senate (US Congress’ Upper House). In the former, executives have “a blank cheque” (Source: Indian Constitutional Law, MP Jain), while in the US, it involves the possibility of political interference in judicial interference. Seeing the dangers in both the systems, our constitution makers opted for a middle path which neither gives an absolute majority for the Executive nor permits the Parliament to meddle in the appointment process. In the Indian system, the Executive is required to consult people who are well qualified to give advice in this matter. (Source: Indian Constitutional Law, MP Jai In reality, how was it implemented? Prior to 1993, the President’s power to appoint judges was purely formal. He acted on the advice of the concerned minister (Law Minister). Hence, contrary to what was planned, the Executive had the major say to appoint judges. This was because constitution doesn’t lay down any specific procedures for judicial appointments except for the phrase “appointed by the President in consultation with Chief Justice and such other judges” Since the 1950s, the tradition was to appoint the senior most judge as the Chief Justice except a few aberrations like that of Justice AN Ray and Justice MU Beg. The Executive and Chief Justice concurred in their opinions. This avoided the semblance of political interference in judicial appointments. Genesis of Collegium System The ambiguity over the phrase “consultation” and the occasional attempts of the Executive to sabotage the senior most judges in the appointment process led to a plethora of petitions in courts which in turn laid foundations for the present appointment system. Following are the major cases: SP Gupta VS Union of India or First Judges Case (1981): A 7-judge constitutional bench held that the President is the final authority to appoint judges and the opinion of CJI isn’t binding on him. It implied “consultation” doesn’t mean “concurrence”. Supreme Court Advocates-on-Record Association Vs Union of India or Second Judge Case (1993): a 9-judge bench overruled the SP Gupta verdict. It gave primacy to the opinion of CJI. However, CJI was to take account of the views in writing of two of his senior most colleagues in this process. This led to the foundations of the collegium system. Third Judges Case (1998): On a reference made by the President under Article 143 of the Constitution, Supreme Court reinforced its stance on 1993 case with minor modifications. It held that the consultation process requires a plurality of judges and CJI must consult 4 of his seniormost colleagues instead of the earlier 2. CJI should not press for appointments even if 2 judges differ. Also, both1993 and 1998 verdicts held that seniormost judge should become the CJI. Collegium consults respective Chief Justices of the High Court before elevating as Chief Justice of High Court or transfers. Thus, judicial appointments as well as transfers of High Court judges in India are made by the President, but only on the recommendations of CJI and 4 seniormost puisne judges. This framework came to be known as the Collegium System. Here the judiciary has primacy to the executive. The appointment process for judges should be initiated by the CJI and is forwarded to the Law Minister who forwards it to the Prime Minister and advises the President to appoint. Government is expected to accept the proposals except in exceptional cases. Reasons for rejection should be stated and convincing to CJI. What are its advantages? Main purpose was to minimise political interference in judicial appointments. The system was formalised to reduce personal discretion and bias of individual judges involved. In this, judges are expected to function freely without any fear of interference by the government of the day. It also helps to ensure separation of powers between executive, legislative and judiciary as held in article 50. Issues The system was devised to ensure transparency in the judicial appointment process. Collegium operates without any secretariat and the public doesn’t have any knowledge of how it meets or works. The reasons for the appointments and non-appointments are not revealed completely in public and in practice, the system has become less transparent. There are also allegations of nepotism and favouritism. The issue of judicial independence is questioned especially in the case of high court judges as they can be subjected to internal judicial pressures. Thus, the complete exclusion of the executive and the overriding powers given to judiciary can lead to misuse and abuse of power. Other systemic issues in the Indian judiciary like the lack of representation of women, minorities and backward communities could also not be solved by the collegium process of appointment. The lack of transparency, accountability and the collusiveness within the judiciary has given rise to wide displeasure. In its...
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