The Framers of the Indian Constitution, while drafting it, understood the necessity to have an independent judicial system. Dr Ambedkar in the Constituent Assembly Debates stated that “our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured”.[1] The recent debates on the judicial appointments however state the contrary. The coming of the National Judicial Appointment Committee, which was later struck down and stated unconstitutional has brought to light a difficult question of the “need for independence of judiciary”. The tectonic shift that took place from 1981, where a 7-Judge Bench of the Supreme Court declared that the executive would hold primacy in judicial appointments[2], to the judiciary getting primacy in appointment of Judges in 1998[3] has resulted in a need to structure a more viable, just and acceptable process of judicial appointments.
This 
paper seeks to analyse the current system of judicial appointments, and at the same time suggests a more enhanced form of judicial appointments that would give equal powers to the executive and the judiciary to select and appoint Judges in the courts. It argues that the collegium system may result in the abuse of power by the judiciary and the whole system of “Judges appointing Judges”[4] is itself a strong depiction of aristocracy and elitism which stands contrary to the heart of the Constitution for not only being against equality but also against democracy as a whole.[5] The paper takes a look at the Third Judges case[6] and critiques the collegium system of appointments. It also looks at three different judicial appointment models: The American model, South African model and the British model. Furthermore, it argues that the involvement of the executive in judicial appointments does not in any way hamper the power of the Judges to exercise their power. Also, this paper argues that executive should only play a role in judicial appointments and should not be involved in transfer of Judges or appointment of Chief Justice.
A Critique of the Collegium and the NJAC
Appointments to the higher judiciary, governed by Articles 124 and 217, for the Supreme Court and the High Courts respectively are in hands of the executive, or so it appears from a literal reading of the provisions. In the early decades since the adoption of the Constitution, the appointments were made primarily by the executive after consultation with the judiciary as per the provisions of the Constitution. The same position, that the executive has the primacy in judicial appointments, was also affirmed by the Supreme Court in the First Judges case.[7]
However, things were soon to change. After a few (highly criticised) political appointments by the authoritarian executive,[8] the procedure started changing. In the Second Judges case[9] (and later the Third Judges case[10], which was a clarification thereon), the Supreme Court ruled that the judiciary has the primacy in judicial appointments. It was said that the Chief Justice of India, along with senior-most Judges of the Supreme Court would play a primary role in appointments to the judiciary. Procedures and guidelines were laid down regarding judicial appointments. The executive’s role was reduced to a minimum and judiciary had the major controlling share.
Several critiques to this collegium emerged. Firstly, the Supreme Court seems to have read too much into the provisions – so much, in fact, that they have ended up making their own version. The procedure (especially the intricate guidelines given in the Third Judges case[11]) is not even close to what was a reading of the articles would suggest. In fact, it is extremely difficult to understand that this is what the framers of the Constitution would have had in mind considering the text of the provisions. If it was indeed the intent of the framers to have a collegium, the Constitution would have said so, and if it was not the intent, the Supreme Court is wrong to have interpreted it so.
Further, this system of appointments has attracted critique for carrying nepotistic tendencies. It has been pointed out by several scholars and authors[12] that a system like this where the judiciary itself decides who becomes the part of the judiciary is highly susceptible to favouritism. In fact, it may even be said that this results in a situation of judicial aristocracy – considering how a handful of Judges end up taking crucial decisions, including the decision of who these Judges are going to be.
This does not mean, however, that the executive-based model of judicial appointments is free of such tendencies. As mentioned earlier, in the pre- collegium era, appointments were indeed made to the higher judiciary which were seen as undesirable and nepotistic by many. In fact, this situation may be more troublesome than that of judicial aristocracy – considering how an important function of the judiciary in a society is to keep a check on the executive. If the executive decides on whom to appoint, the appointments would be political and the judgments would favour the executive.
Both the situations are, in fact, two extremes in different directions; and a balance for the same was attempted to be struck by the NJAC. The legislature, claiming to bring greater transparency to judicial appointments and to bring a balance to the system, enacted the National Judicial Appointments Commission Act, 2014 and the Constitution (Ninety-Ninth Amendment) Act, 2014. The Supreme Court, however, struck down the Acts for violating the basic structure[13] of the Constitution.[14]
The NJAC too has been critiqued by many for not being neutral.[15] Non-clarity over who the “prominent citizens” in the Commission would be, too much reliance upon the executive, and lack of adequate representation of judiciary are some of the aspects which are attacked most often. There is another point, that Article 124 was amended to include “procedure as Parliament may, by law, prescribe”. It was argued that this constitutes a violation of basic structure since now the procedure could be changed by a simple majority in Parliament as opposed to special majority for constitutional amendment as required earlier. This is a technical point, however, and not of much use for the purposes of this paper considering it is not a procedure by itself but a doctrinal irregularity.
Nonetheless, this gives rise to the obvious question: how, then, can a balance be struck and what should a proper system of judicial appointments include? We need to come to certain principles and procedures which are as neutral as possible and do not reach the extremes of favouring either wing of the State too much.
Proposal for a New Model
The current system of judicial appointment is based on the idea of “Judges appointing Judges”. While the Supreme Court of India may state that the power of judicial appointment should be restricted to the judiciary and there should be minimal interference by the executive, there exists a notion which states the contrary. In fact, the court while striking down the NJAC system admitted that there were some “serious issues”[16] with the existing collegium system. The collegium system was closed door and not transparent. The Judges who were hopeful of going to the higher judiciary would thus resort to pleasing the collegium. At times, judicial appointments by collegium would be a blatant act of partisanship with no transparency as compared to executive appointing Judges, which at least would be transparent.[17]
The most important question that needs to be tackled while analysing a pro-executive judicial appointment model is: whether the independence of the Judges would be hampered. While having an executive say in appointments may not make the judiciary totally independent, but it does not in any way hamper the independence of the Judges to make their individual decisions. The core purpose of having an independent judiciary is to allow the Judges to exercise their functions in deciding disputes and having jurisdiction directly or by way of review without the executive or legislature interfering[18]. Before 1982, Judges while performing their functions were able to maintain their personal and substantive independence. Judges were not subjected to any authority other than law in making judicial decisions and exercising official duties. Moreover, Judges are also able to maintain personal independence by having an adequate security in judicial terms of office and tenure. Independence of Judges is also depicted from their ability to give dissent, thus maintaining independence from seniors as well as colleagues[19]. Thus, from the aforesaid points we can see how Judges would still remain independent, even if the executive plays a role in their appointment.
The Constitution of India before the coming of the collegium clearly stated in Article 124 that the appointment of any Judge in the Supreme Court would be by the President of India[20], in consultation with the Chief Justice of India. This meant that the constitutional framers themselves felt the need for an executive involvement in the appointment of judiciary. The system was framed to ensure proper checks and balances of the judiciary and hold it accountable. Apart from it being accountable, the judiciary has had the power of the sovereign when it superseded the power of Parliament by stating that no law passed by Parliament would be held constitutional if it is in contradiction to the fundamental rights guaranteed in Part III. Later the Supreme Court declared itself as the protector of the basic structure of the Constitution while usurping more and more power[21]. Thus, by having a strong executive representation for judicial appointments, there would be a better form of checks and balances.
Furthermore, the Constitution has provided for independent administration of judiciary and removing Judges by the executive is also a cumbersome task. The administrative expenses are charged through the Consolidated Fund of India or of the relevant State and are not subject to the discussion in Parliament.[22] Furthermore, Parliament is barred from discussing the conduct of Judges (except in cases of impeachment) and their condition of service cannot be altered.[23] This clearly proves that judicial independence exists in its administrative control of judiciary which has been backed by the Constitution.
Now, coming to the point of a need for executive interference in the judicial appointments. It has been clearly stated that there exists a need to maintain certain checks and balances on all the organs of a “democratic Government”. While the whole concept of separation of powers was established to keep each branch away from the influence of another, there was a deliberate attempt by the framers of the Constitution to keep the executive involved in the appointment of judiciary in order to make sure that there is no abuse of power by one single branch of the Government. The perfect example of this model can be seen in the United States of America, where the President nominates the Judges of the Federal Court, and have to be approved by the majority of those voting in the senate.[24]
The American model also involved a fifteen member “committee on federal judiciary”. The Committee is made under the aegis of American Bar Association (ABA) who are probably the biggest stakeholders in the legal profession. The Committee has a function of grading the nominated lawyers into the category of “well qualified”, “qualified” and “not qualified”. This eases down the process of appointment for the senate approval. Even though judicial intervention is allowed in suggesting names, it is in no way binding and can be rejected.[25] The model that is proposed in this paper is based on similar grounds. The nomination should be made by the President with the Supreme Court Chief Justice along with other Justices. Along with that the Bar Association should be consulted through a committee on judiciary and their views should also hold some weight for the selection of Judges.
The American Constitution also did not intend for a complete separation of powers. It has been stated that it is almost impractical to leave one branch free from others. The whole theory of separation of powers by Montesquieu is about a single entity holding all the power and not keeping the powers of different branches totally separate[26]. It is thus argued, that executive interference should be allowed in judicial appointments.
One of the models on which this paper would rely for a more refined judicial appointment model would be that of Britain. Post 2006, the structure of appointment changed. An independent Judicial Appointment Committee was formed which would have the power to suggest names[27]. The previous model of appointment only allowed appointment of Lord Chancellor who is the Governor Minister. The previous model was struck down under the pretext that the Government should not have the sole responsibility for appointing Judges. The new model allowed the selection to be made on a competitive basis and is completely transparent. The Commission has a statutory duty to encourage diversity in range of persons available for selection, which widens the pool of candidate who is later appointed on merit.
The Lord Chancellor, however holds limited veto power[28]. This signifies executive participation along with the judiciary. However one thing which should not be adopted from the British model is that the Commission should not be chaired by a layman, but someone from the judiciary. This is because, the appointment of the Judges should be from someone who has knowledge of governance on that subject. The proposed model in this paper suggests that a commission should be formed that would give a transparent system of selection from a wider pool of individuals, with the executive having “limited veto power” which is to be used by it only when selection of Judges seems to be extremely arbitrary.
The third model which this paper tends to look at, is the South African model. This model involves a Judicial Selection Committee, which comprises of twenty-three members. The Chief Justice chairs the Commission. Fifteen members are from the executive. When matters relate to specific High Court Judges, the Premier of the Province together with the Judge President of the Province also sit on the Commission[29]. The appointment of Judges has to be based on two grounds: they have to be “appropriately qualified” and have to be “fit and proper”[30]. Further there would be an interview process where the prospective candidates would be analysed upon a candidate’s support for any political party decisions a candidate might make as a Judge a candidate’s commitment to constitutional values[31]. Thus, rigorous interviews of candidate becomes an important criteria for determining judicial appointment as compared to a closed-door system of collegium.
Furthermore, an important aspect that this model suggests is, that the collegium system that will exist should be maintained with respect to transfer and appointment of Judges. The reason for this being that this would allow the judiciary to maintain its independence and would restrict executive interference. It would further allow Judges to independently use their minds without any threat to their personal and substantive independence. This notion has come to prevent a similar situation that evolved in 1970s during Indira Gandhi, where she appointed Justice A.N. Ray overlooking three seniormost Judges of Supreme Court[32]. Thus, a collegium governance should exist with respect to transfer or promotion of Judges in order to ensure judicial independence while at the same time not superimposing judiciary on the other wings.
Hence, this paper proposes a judicial appointment model which firstly ensures strong executive participation (American model). It also proves how executive interference in judicial appointments would not hamper the independence of judiciary and the Judges (judicial independence being one of the factors for striking down NJAC). Further, the nature of executive involvement should be equal in terms of number. The executive should be given a limited veto that can only be used in special circumstances (South African and British Model respectively). Lastly, the executive interference should only be limited to appointment and should play no role in transfer of Judges and appointment of Chief Justice. The Indian judiciary has come a long way, but there is a long road of judicial reforms ahead.
* 3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University.
** 3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University.
[1] Dr B.R. Ambedkar, Reply to the debate on the draft provisions of the Constitution on the Supreme Court, (24-5-1949), in Constituent Assembly Debates, Vol. VIII, 258.
[2] S.P. Gupta v. Union of India, 1981 Supp SCC 87.
[3] Special Reference No. 1 of 1998, In re, (1998 ) 7 SCC 739.
[4] Krishnadas Rajagopal, SC Bench strikes down NJAC Act as “unconstitutional and void”, The Hindu, 17-10-2015.
[5] See Indira Jaising, National Judicial Appointments Commission – A Critique, 49 EPW 6 (2014).
[6] Special Reference No. 1 of 1998, In re, (1998 ) 7 SCC 739.
[7] S.P. Gupta v. Union of India, 1981 Supp SCC 87.
[8] Prime Minister Indira Gandhi had appointed several Judges, arousing criticism and dissent from judiciary as well as from general public.
[9] Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.
[10] Special Reference No. 1 of 1998, In re, (1998 ) 7 SCC 739.
[11] Special Reference No. 1 of 1998, In re, (1998 ) 7 SCC 739.
[12] See Prashant Bhushan, The Dinakaran Imbroglio: Appointments and Complaints against Judges, 44 EPW 10 (2009); See also Indira Jaising, National Judicial Appointments Commission – A Critique, 49 EPW 6 (2014).
[13] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
[14] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
[15] See C. Raj Kumar & Khagesh Gautam, Questions of Constitutionality – The National Judicial Appointments Commission, 50 EPW 42 (2015). See also, Indira Jaising, National Judicial Appointments Commission – A Critique, 49 EPW 6 (2014).
[16] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
[17]Insights, Insights into Editorial : Judiciary v. Executive — Judicial Appointments, #INSIGHTSIAS, (22-8-2016), <http://www.insightsonindia.com/2016/08/22/insights-editorial-judiciary-vs-executive-judicial-appointments/>.
[18] Thomas W. Shelton, The Struggle for Judicial Independence, 10 Virginia Law Review, 214 (1924).
[19] Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, Judicial Independence: The Contemporary Debate.
[20] This decision was to be on the aid and advice of Prime Minister and the Council of Ministers as per Art. 74 of the Constitution.
[21] Pratap Bhanu Mehta, India’s Unlikely Democracy: Rise of Judicial Sovereignty, 2 Journal of Democracy, 70 (2007).
[22] Zia Mody, Ten Judgements That Changed India 161 (2013).
[23] Zia Mody, Ten Judgements That Changed India 161 (2013).
[24] Lawrence Baum, The Selection of Justices, The Supreme Court (7th Edn.).
[25] Lawrence Baum, The Selection of Justices, The Supreme Court (7th Edn.), 14.
[26] James Madison, Federalist No. 47, 1778.
[27] Judicial appointments: Principles, The Governance of Britain, (October 2007), presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty The Queen.
[28] Judicial Appointments, Courts and Tribunals Judiciary, <https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/jud-appts/>.
[29] Judicial Appointments in South Africa, Middle Temple and SA Conference: Judicial Independence.
[30] The Implication of Judicial Selection, Judicial Selection in South Africa, 13.
[31] The Implication of Judicial Selection, Judicial Selection in South Africa, 20.
[32] Alok, How India missed getting its first woman Chief Justice India, Critical Twenties, (26-11-2010), <http://www.criticaltwenties.in/lawthejudiciary/how-india-missed-getting-its-first-woman-chief-justice-india>; See also Zia Mody, Ten Judgements That Changed India (2013).
