Tug of war over judges' appointment

Tug of war over judges' appointment

The process of judicial appointments must be more participatory, consultative and an integrated one.

The government has again rejected the recommendation of a Supreme Court collegium, sent for the second time, for appointment of a High Court Chief Justice. The development assumes importance in the context of an on-going standoff between the government and the judiciary.

In 2015, the judiciary struck down the National Judicial Appointment Commission Act which attempted to give an ‘independent’ authoritative power to the NJAC to recommend judges for appointment to both the Supreme Court and the 24 High Courts.

The Constitution itself originally never had provisions for a collegium to appoint judges. As a concept, it was mooted in 1993 over the appointment of judges in Supreme Court Advocates-on-Record Association and another v Union of India which laid the foundation for a collegium system in the country.

As a result, Chief Justice of India’s (CJI) opinion on judicial appointments would be final, in conjunction with views of two senior most SC judges. The judiciary in 1998 gave shape to their idea which is now known as a collegium. It constitutes the four senior most SC judges which the CJI heads.

In its 1993 judgment, the SC emphasised: “the process of appointment of Judges to the Supreme Court and the High Courts are an integrated 'participatory consultative process’ to select the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed-decision, sub-serving the constituti-onal purpose, so that the occasion of primacy does not arise.”

The SC perceived the power of the executive to act as a mere check on the CJI’s exercise of power, to achieve constitutional objectives. Thus, the executive element in the appointment process is reduced to the minimum and provision to eliminate political influence, if any.

After India became a republic in 1950, judicial appointments were based on the rule of seniority. This practice was followed till 1993 with two interregnums in 1973 and 1976 when the President of India bypassed the seniority rule and appointed a not so senior judge as the CJI which ruffled feathers among the jurists, legal practitioners and academia. As guardian of the Constitution, the SC to maintain its independence, asserted its power and took charge over judicial appointments, to make the executive subordinate in 1993.

Therefore, the SC adopted a new approach to choose fellow judges for appointment to minimise interference from the executive – making the process judge-centric. Thereafter, in 1998, the SC in an advisory opinion to the President, suggested the need to constitute a collegium of judges whose decisions on judicial appointments shall be final and the government could not question.

In 1987, the Law Commission suggested the formation of a National Judicial Commission (NJC) solely to undertake HC and SC judicial appointments. In order to formalise the NJC, a Bill was introduced in Parliament in 1990 which later lapsed due to the dissolution of the Lok Sabha. Also, the National Commission to Review Working of the Constitution in its 2002 report, recommended formation of the NJC. 

Rule of Law

Since then, deliberations over NJC continued till 2014 which led to creation of the NJAC through an Act of Parliament. It required a Constitutional amendment. The NJAC comprises representatives from the judiciary, government and civil society, which was tasked to select and recommend judges for appointment to the HCs and the SC. However, in October 2015, the SC struck down this Act on the grounds that it violated the independence of the judiciary, especially the Rule of Law under the Constitution.

Over the years, the political leadership and the judiciary have coursed through a conflictual relationship over judicial appointments. Whether they both should be solely vested with the power to make these appointments or not is the crux of the matter. It affects the much cherished principle of separation of powers. In a democratic polity, the power and functions of the state are divided amongst the legislature, the executive and the judiciary.

Each of these functionaries is autonomous and supreme within its allotted sphere and none is superior to the other-- but all are subordinate to the Constitution. So, the three pillars of Indian democracy are independent of each other to ensure the spirit of liberty and rule of law under the Constitution.

However, the wisdom of the legislature and executive have been overlooked and denied a role in the judicial appointment process – although the SC recognised it as a ‘participatory consultative process'.

Today, there is an urgent need to make the process of appointment of judges more participatory, consultative and an integrated one. The SC, as a guardian of the Constitution, should ensure that these prescribed practices are adhered to. The primary objective of the collegium is to ensure that the best available talent is brought to the bench. It is necessary to involve the legislature and executive in the matter.

Undoubtedly, the SC should have a superior voice in judicial appointments. A healthy relationship between the judiciary, executive and legislature is integral to a successful democracy.

(The writer is an Associate Professor, School of Law, Christ University, Bengaluru)

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