Judicial Appointments Conundrum Post-NJAC Verdict

[op-ed snap] Criteria for the courts: on the appointment of judges


Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Debate regarding opacity of collegium system and need for a more transparent and constitutional value centred process


Appointments in judiciary

  1. On November 2, four new judges were elevated to the Supreme Court
  2. But neither the Collegium’s discussions on the appointees, as published on the court’s website, nor the popular discourse on the persons chosen concern themselves with a discussion on the records of these judges
  3. We are left with little idea, for instance, on what broad constitutional philosophy these judges espouse, what their approach to constitutional interpretation might be, and on how they might view the general role of the higher judiciary
  4. Contrary to what some might believe, engaging with a judge’s outlook to the Constitution isn’t necessarily inimical to judicial autonomy

Why a knowledge of judges background is essential?

  1. Judicial review gains its legitimacy from the Constitution
  2. Given that judges are unelected officials, its continuing legitimacy might be at stake if we deem it undemocratic to so much as wonder what the constitutional philosophy of a nominee might be
  3. As things stand, the procedure adopted in appointing judges is seen as entirely divorced from the ordinary constraints of a democracy
  4. This wasn’t quite how the Constituent Assembly saw things
  5. The framers believed that the judiciary was integral to the social revolution that the Constitution was meant to usher in

Constitutional provisions

  1. The Constitution comprises a number of special clauses
  2. It provides for, among other things, a fixed tenure for judges of the Supreme Court and the High Courts
  3. It also ensures that salaries and allowances of judges are charged directly to the Consolidated Fund of India
  4. The constitution confers powers on the courts to punish for contempt of themselves
  5. It ensures that judges can only be removed through a process of parliamentary impeachment

Executive still given an important role

  1. The framers of the constitution always believed that the power to appoint judges must vest with the executive
  2. Accordingly, the Constitution provides, in broad terms, that judges to the Supreme Court would be appointed by the President in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit

Judiciary resisting executive interference

  1. Through a series of rulings, the Supreme Court replaced the consultative method prescribed by the Constitution with one that gave the CJI and his four senior-most colleagues (the “Collegium”) primacy in selecting candidates
  2. This system has proved to be notoriously opaque
  3. Efforts to replace it with a National Judicial Appointments Commission (NJAC) came up a cropper after the court struck down the 99th constitutional amendment, in Supreme Court Advocates-on-Record Association v. Union of India (2015)
  4. The primacy enjoyed by the collegium in making appointments to the higher judiciary, the court declared, was a part of the Constitution’s basic structure

Reasoning for appointments are weak

  1. Only the concerns over the relative seniority of these judges and the extent of State-wise representation kindled the collegium’s attention while making recommendations
  2. The candidates’ merit was also considered
  3. But given that the criteria for selection are entirely unknown, what merit means remains ambiguous, at best
  4. In any event, the general constitutional values of a nominee have never been seen as a benchmark to review merit
  5. The publication of the collegium’s decisions has shown us that the collegium’s workings are mysterious and undemocratic

The government is also not pushing for reforms

  1. For the most part, the government is happy with this arrangement
  2. It clears some recommendations with alacrity while holding back, often for months on end, others comprising nominees that it deems uncomfortable

The need for an independent commission

  1. What we need today is a more sustained discussion on the nature and workings of a body that can potentially replace the collegium
  2. Such a body must be independent of the executive, but, at the same time, must be subject to greater transparency and accountability
  3. This commission must also partake within it a facility for its members to have forthright discussions over the constitutional philosophies that a judge must possess

Way forward

  1. If we fail to bring these issues to the forefront, the rigours of democracy will never permeate into the judiciary
  2. And we will only be further undermining public trust in the credibility of the judicial review


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