Appointment Of Judges

Indian Judiciary is one of the three pillars of the Indian democracy, along with the Executive and the Legislature. The Constitution empowers the Judiciary to be its watchdog and keep a check on the other organs, that of legislature and executive, in case they transgress the powers entrusted upon them by the Constitution. Its the guardian of the Fundamental Rights and ensures that the same are protected and most importantly the independence of Judiciary has been held to be the basic structure of the Constitution which also means that its power cannot be taken away by any law, provision or amendment by the legislature or executive. Its independence is also manifest in the fact that President decides on appointing judges from a list of names recommended by the Collegium- a closed group of the Chief Justice of India and the senior-most judges of the Supreme Court, for appointments to the Supreme Court, and they, together with the Chief Justice of a High Court and its senior-most judges, for appointments to that court. Apart from this the judges of the Supreme Court or a High Court cannot be removed from office once appointed, unless an overwhelming two-thirds of members of any of the Houses of the Parliament back the move, only on grounds of proven misconduct or incapacity.

Article 124 of the Constitution says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

Through three cases, the Supreme Court has evolved the issue of Independence of Judiciary by excluding the Executive and Legislature from exercising control over the appointment of judges in higher judiciary. Following are the three cases: a) S. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case)

  1. b) Supreme Court Advocates-on-Record Association vs Union of India- 1993
  2. c) In re Special Reference 1 of 1998

The Second Judges Case of 1993 resulted Supreme Court of India assuming an upper hand over appointment of judges and hence brought in the Collegium, where, for appointments to the Supreme Court and High Courts, the Chief Justice of India would decide after ascertaining the opinion of two of the most senior Judges of the Supreme Court. Similarly, for the appointment of High Court Judges, the Chief Justice of the High Court would make recommendations only after ascertaining the opinion of two of the most senior Judges of the High Court.

In 1998, when the executive questioned the recommendation of the Chief Justice of India M. M. Punchhi, to appoint five Judges, the President, in a Special Reference, sought the opinion of the Supreme Court on matters concerning the appointment and transfer of Judges. Supreme Court through a Nine-judge bench delivered a unanimous opinion and altered the Collegium System of appointment of Judges to include the Chief Justice and four of the most senior Judges, as against two, mentioned in the Second Judges Case. This came to be known as the Third Judges Case. The Supreme Court categorically held that the expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.

The Constitution (Ninety-Ninth Amendment) Act, 2014 sought to replace the Collegium system with the National Judicial Appointments Commission (NJAC) in the context of escalating criticism over lack of accountability and transparency in judicial appointments. Critics argue that the current system causes an imbalance in the democratic set up by enabling one organ to overpower the functions of the other pillars of democracy and also that appointments are made as trade-offs and to favor some candidates over others ignoring the aspect of merit.

The central government has criticized it saying it has created an ‘imperium in imperio’ (empire within an empire) within the Supreme Court and the Supreme Court Bar Association had blamed it for creating a “give and take” culture, creating a rift between the haves and have-nots.

Hence, The Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014 provided that the appointment to higher judiciary would be now by way of a commission comprising of:

  1. The Chief Justice of India as the Chairperson, ex officio.
  2. Two other senior Judges of the Supreme Court next to the Chief Justice of India as Members, ex officio.
  3. The Union Minister in charge of Law and Justice as Member, ex officio.
  4. Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the House of the People, as members. One of the eminent persons shall be nominated from amongst those belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.

The Act also provided that if any two members of the Commission did not agree with a nomination, that candidate would not be recommended by NJAC. Subsequently, when the constitutionality of the said amendment and Act was challenged, on 16.10.2015 a constitutional bench of five judges, with a majority of 4:1 struck down the 99th Amendment and the NJAC Act declaring it to be unconstitutional. This has come to be known as the Fourth Judges Case. The reasons stated by the Supreme Court in the aforementioned judgment is that involvement of the Union minister of Law and Justice and members of the executive would threaten the independence of the judiciary and the doctrine of separation of powers. A Zee News Report said “NJAC is against the basic features of our Constitution”, though the collegium system is not entirely flawless. The Supreme Court held that such a system would tamper with the basic structure of the Constitution and the autonomy of the judiciary. However, the Apex Court did acknowledge the fact that the current system of appointing judges does lack credibility and transparency and that it would work towards improving it.

The need of the hour is to revisit the procedure of appointing judges by making it more transparent and accountable. It is important to consider candidates on the basis of merit and to consider important aspects of diversity, integrity and professional competence. Thus a new system should be devised wherein the independence of the judiciary shall not be curtailed while ensuring transparency and answerability in the appointment of judges, who should be competent in catering to the weaker sections of society and maintaining their faith in the judicial system of the country.


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