Judicial Appointments in India

GS II-POLITY

Introduction

Judicial appointments in India have long been a subject of debate. Recently, two key developments in the Supreme Court’s Collegium system have surfaced: first, the introduction of interviews for judicial candidates, and second, the exclusion of candidates with close relatives in the judiciary. A persistent power struggle has existed between the government and the judiciary over judicial appointment procedures.

This article explores the historical conflicts between the judiciary and the executive regarding judicial appointments, the current appointment system, its associated concerns, and the proposed National Judicial Appointments Commission (NJAC), which was meant to replace the Collegium system. Additionally, we will examine judicial appointment methods in other countries and suggest the way forward.

Recent Developments in the Supreme Court’s Collegium System

1. Interviews for Candidates: The Collegium now conducts interviews for candidates recommended for elevation to High Courts. This initiative aims to enhance the selection process by enabling decision-makers to directly assess the nominees.
2. Exclusion of Relatives: The Collegium has decided to exclude candidates whose close relatives are serving or have served as judges in the Supreme Court or High Courts. While this measure seeks to promote diversity and curb nepotism, it may also prevent some deserving candidates from being appointed.

Significance of These Developments: These measures are crucial in addressing long-standing concerns related to transparency, accountability, and diversity in the judiciary. They are expected to strengthen public confidence in the Collegium system and create a fairer process for judicial appointments.

Constitutional Provisions on Judicial Appointments

• Article 124(2): Supreme Court judges are appointed by the President after consulting judges of the Supreme Court and High Courts, as deemed necessary. The Chief Justice of India must always be consulted for appointments other than that of the Chief Justice.
• Article 217: High Court judges are appointed by the President after consulting the Chief Justice of India, the Governor of the State, and the Chief Justice of the respective High Court.

Historical Conflicts Between the Judiciary and the Executive

• Colonial Era: The executive had complete control over judicial appointments.
• Constitutional Debates: The framers of the Indian Constitution were concerned about executive overreach in judicial appointments and sought to maintain a balance between the two.
• Judicial Interventions: Landmark Supreme Court cases—First, Second, and Third Judges Cases—led to the evolution of the Collegium system, reducing executive influence in judicial appointments.

Key Judicial Cases on Appointments

• First Judges Case (1981): The Supreme Court ruled that the President’s consultation with the Chief Justice of India (CJI) did not mean concurrence, allowing the executive to override judicial recommendations.
• Second Judges Case (1993): The Supreme Court overturned its earlier decision, interpreting consultation as concurrence and requiring judicial appointments to be made by a Collegium led by the CJI.
• Third Judges Case (1998): The Collegium was expanded to five judges, further cementing judicial control over appointments.
• Fourth Judges Case (2015): The Supreme Court struck down the NJAC Act, reaffirming the Collegium system and declaring NJAC unconstitutional due to its infringement on judicial independence.

Concerns with the NJAC

1. Lack of Expertise: The inclusion of two eminent persons without legal expertise created concerns over potential government influence.
2. Ambiguous Provisions: The Act lacked clarity on certain terms, such as the criteria for determining the fitness of a judge.
3. Veto Power: Any two NJAC members could veto a recommendation, potentially overriding judicial input.
4. Absence of Casting Vote: The CJI lacked a casting vote, increasing the likelihood of deadlocks in decision-making.
5. Possibility of Executive Overreach: NJAC’s power to frame regulations could be nullified by Parliament, making the judiciary vulnerable to political influence.

Current Judicial Appointment System in India

Judicial appointments are conducted through the Collegium system, which comprises the CJI and the four senior-most judges of the Supreme Court. The process includes:

• Collegium Recommendations: Names of candidates for judicial positions are recommended by the Collegium.
• Government Review: The government conducts background checks via intelligence agencies and may raise objections.
• Final Decision: If the Collegium reiterates a recommendation, the government is bound to accept it.

Advantages of the Collegium System

1. Judicial Independence: It prevents executive interference and maintains the judiciary’s autonomy.
2. Government as a Litigant: Since the government is a primary litigant in courts, judicial independence is crucial for impartial rulings.
3. Expertise in Appointments: Judges are best suited to assess the competence of prospective appointees.
4. Safeguarding Constitutional Principles: The system helps uphold fundamental rights and constitutional values.

Concerns Regarding the Collegium System

1. Lack of Constitutional Status: The Collegium system is based on judicial interpretation rather than explicit constitutional provisions.
2. Opacity in Decision-Making: The selection process lacks transparency, as no formal guidelines or criteria are publicly available.
3. Accountability Issues: Since judges appoint judges, there is minimal external oversight.
4. Nepotism and Favoritism: Critics argue that judicial appointments often favor relatives and close associates of sitting judges.
5. No Global Precedent: India is unique in allowing judges to appoint other judges without executive or legislative participation.

Global Best Practices in Judicial Appointments

• United Kingdom: The Constitutional Reform Act of 2005 established judicial appointment commissions with both executive and judicial representation.
• South Africa: The Judicial Service Commission advises the President on judicial appointments, ensuring a broad representation of government branches.
• France: The High Council of the Judiciary plays a crucial role in selecting judges, while the Minister of Justice is involved in lower court appointments.

The Way Forward

1. Reforming the NJAC: A revised NJAC addressing past criticisms could balance judicial independence and accountability.
2. Finalizing the Memorandum of Procedure (MoP): The government and judiciary should cooperate to establish transparent appointment guidelines.
3. Enhancing Transparency: Collegium decisions should be made more transparent by publicly disclosing selection criteria and reasons for appointments.
4. Establishing an All India Judicial Service (AIJS): A centralized system for appointing lower court judges can enhance judicial quality.
5. Setting Up a Secretariat: A dedicated secretariat with a comprehensive database of potential candidates can facilitate timely judicial appointments.

Conclusion

To ensure a fair and transparent judicial appointment system, the government and judiciary must resolve their differences and adopt a model that incorporates the best aspects of both the Collegium and NJAC systems. Judicial vacancies contribute significantly to case backlogs, and all branches of the state must work collaboratively to fill these positions efficiently. Until a new mechanism is adopted, the government should adhere to the Collegium’s recommendations and avoid unnecessary delays in appointments.