Freedom in selection unique to India

With the Supreme Court holding the 99th Constitutional Amendment Act and the NJAC as unconstitutional, the focus is once again back on the procedure for appointment of judges in the higher judiciary.

All is not lost for those questioning validity of collegium system comprising the Chief Justice of India and four seniormost judges in the Supreme Court for judges' appointment in High Courts and the Supreme Court. This is because the Supreme Court agreed to consider arguments for improving the self-germinated collegium system.

Notably, as many as nine countries appoint judges either through a Judicial Appointment Commission (Kenya, Pakistan, South Africa and the United Kingdom), a Committee (Israel) or Councils (France, Italy, Nigeria and Sri Lanka). In four countries, judges were appointed directly by the Governor General (Australia, Canada and New Zealand) or the president (Bangladesh).

In Germany, the minister of justice plays a significant role in the multistage process for appointment of judges by nominating a person, which is confirmed by parliamentary committees, and the final order of appointment of the concerned individual as judge is issued by the president.

In the USA, judges are appointed through a process of nomination by the president and confirmation by the Senate. Neither the Chief Justice of the United States nor the Supreme Court is assigned any role. The head of the executive is conferred with the exclusive power to make the choice of the judges of the highest court subject to the advice and consent of the Senate. It is seen as a check on the possibility of arbitrary exercise of the power by the president. Interestingly, the appointments made by the judicial appointments commissions, committees or councils, as seen in South Africa and Sri Lanka, the executive has an overwhelming majority.

In countries like France, Israel, Kenya and the United Kingdom (UK), there is a balanced representation of stakeholders, including the executive. In Italy, Nigeria and Pakistan, the number of judges is in a majority in such a commission. In as many as five countries namely Canada, Australia, New Zealand, Bangladesh and the USA, the decision is taken by the executive without any formal process of consultation with the judiciary. Neither Canada nor Australia provide the chief justice or judges of the highest court any role in the choice of judges of the Constitutional Courts. In Australia, unlike the USA model, there is no provision in the constitution requiring consent of the federal legislature for such appointments.

As far as England is concerned, the process is unique. It has no written constitution unlike that in India, USA, Canada and Australia. Till 2006, appointments of judges were made exclusively by the lord chancellor of the exchequer who is a member of the Cabinet. At present, the procedure for appointing a Justice of the UK's Supreme Court is governed by Sections 25 to 31 and Schedule 8 of the Constitutional Reform Act, 2005, as amended by the Crime and Courts Act, 2013.

Selection commission

Now, it is the responsibility of the lord chancellor to convene a selection commission; he usually does this by way of a letter to the president of the court who chairs the selection commission. Under changes introduced through the 2013 Act, the president has to nominate in the selection commission a senior judge from anywhere in the UK, but that judge cannot be a judge of the Supreme Court.

In addition, there is a member of each of the judicial appointments commission for England and Wales, the judicial appointments board in Scotland, and the judicial appointments commission in Northern Ireland. At least one of those representatives has to be a lay person. Nominations are made by the chairman of the relevant commission/board.

In the instant debate, the government cited examples of these countries to justify inclusion of “eminent persons”, sans any legal background, in the process of selection and appointment of judges. It specifically mentioned that the judicial appointment commission in the UK also consisted of such lay persons.

In our present collegium system, the Law Ministry's involvement is confined to the role of merely routing the file to the President for issuing notification. The moot question is, if the manner of selection and appointment of judges could be linked to the concept of independence of the judiciary. Our Supreme Court said, yes.

In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor would more often than not be treated as an act of grave moral deprivation, Justice J S Khehar, who presided over the five-judge bench, said. He also cited words of B R Ambedkar to emphasise reciprocity and feelings of payback to the political executive would be disastrous.