Row Over Judicial Appointments Explained; How Indian System Compares To US, UK

SUPREME Court’s Collegium system of judicial appointment has attracted criticism from several quarters in the past few decades. The latest in the series is Union Law Minister Kiren Rijiju’s letter to Chief Justice of India DY Chandrachud, where he has sought a place for Centre’s representatives in the process of judicial appointment. The rationale for such a request, according to the law minister, is bringing “transparency” and “public accountability” in the process of appointments. The Supreme Court judges, however, believe this to be an affront to the independence of the judiciary.

In the letter addressed to the Chief Justice, Rijiju has also requested that representatives of the state governments be included in the collegiums of their respective high courts to “dispel a notion that opaqueness shrouds the process for selection of constitutional court judges”, the Times of India reports. Many have argued that the judiciary being the guardian of the Constitution should be an independent body that acts as a check on the powers of the other two constitutional bodies of the Republic – the legislature and the executive. The involvement of elected governments in the appointment of judges might undermine that independence of the judiciary, they fear.

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In such a backdrop, let us look at the claims and counterclaims of the government and the judges, who are becoming increasingly defensive over the matter. There also might be some merit in considering the study of the processes of judicial appointments in two major democracies – the United States and the United Kingdom – from whom India has incorporated aspects in her own set-up.

Centre’s Contention Against SC Collegium System

The Center has repeatedly argued that the collegium is an opaque system of appointments of judges to senior positions of the judiciary that leads to several problems including a high number of vacancies, nepotism and closed circle of judges that engage in mutually beneficial trade-offs for them. The Center is not the only one to have leveled these allegations against the third pillar of democracy, accusations have even come from within.

“As I have said elsewhere, the process by which a judge is appointed to a superior court is one of the best kept secrets in this country,” former Supreme Court Justice Ruma Pal had said on November 10, 2011.

Justice Pal had also alleged in a speech that consensus in the matter of judicial appointments in collegium often are a result of trade-offs that lead to “dubious appointments and disastrous consequences for the litigants and the credibility of the judicial system”. She had even described the process as “possibly the best kept secret of this country”.

Recently, on January 12 while addressing the 83rd conference of presiding officers, Vice President Jagdeep Dhankar had called the Kesavananda Bharat Case judgment of 1973 a “bad precedent”. In that case, the Supreme Court had held that Parliament could only amend the Indian Constitution so much that it did no constitute altering the “basic structure” of it. He had alleged that the judgment in that case established “judicial supremacy”.

Lok Sabha Speaker Om Birla had also said, at the same event, that judiciary should respect the “sanctity of the legislative bodies”.

“This is a serious issue and organs of constitutional democracy must adhere to their specified roles. The constitutional bodies should refrain from activism and stick to their responsibilities,” he had said.

Objections Raised By Judiciary Against Centre’s Suggestions

Judges of the Supreme Court and several bodies of lawyers have argued that the involvement of the Center in appointment of judges in senior positions will be detrimental to the cause of an independent judiciary. In a democracy, they argue, the judicial system should act as the custodian of the constitution and prevent overreach of the executive and legislative branches of the state apparatus.

Origin of College System

The Second Judges Case in 1993 saw the emergence of the collegium system. The top court in that judgment held that the “consultation” with the government essentially meant “concurrence”. Basically, prior to this judgment, the President of India (in essence the Prime Minister; as the President acts on the counsel of the Cabinet) used to appoint the judges to the Supreme Court after consulting the Chief Justice and senior judges. With this 1993 judgment, the Supreme Court had wrested this power from the executive.

The current two-tier collegium system gradually took shape not by any acts of Parliament or Constitutional provisions but instead by judgments of the Supreme Court. Successive Chief Justices and lawyers’ bodies have defended this system, against severe criticism, citing judiciary’s independence from executive interference .

When, in 2014, the newly elected Modi government had tried to get a handle on the matter by passing the National Judicial Appointments Commission Act, Supreme Court Advocates on Record Association moved a petition against the move that sought the establishment of a commission to appoint and transfer judges. This commission was supposed to have two eminent persons – one from the historically depressed classes (SC/ ST/ OBC/ Minority) and a woman. The top court called this Act “unconstitutional”.

How Judges Are Appointed In The US

In the world’s oldest democracy, the appointment of judges is a highly political affair. Consequently, it is also a very public affair. Like India, the US is also a federal state meaning the powers of governance are highly decentralized and but unlike India the President has immense powers when it comes to appointment of judges not only to the Supreme Court but also lower state level courts (in the US each of the 50 states have a Supreme Court). However, this power is not absolute and there are checks on it.

Every judicial appointment by the President is scrutinized by the Senate (which is the upper chamber of the US Congress). This scrutiny is publicly broadcasted, India where even the Parliamentary committee unlike deliberations are not made public, making them highly transparent. Such transparency invites strong reactions from the ordinary citizens thus making the whole process quite inclusive.

How Judges Are Appointed In The UK

If there is any democratic model bearing the closest resemblance to India’s, it is the Westminister model in the UK. In fact, its judicial appointments process is also quite similar to India’s. However, there exist effective checks and balances even if subtle in nature. In the UK, appointment of judges to the Supreme Court (which has jurisdiction over England, Wales, and Northern Ireland) is made by the Monarch, on the basis of counsel provided by the Prime Minister. Number 10, however, does not get a free hand in the matter, even if it gets to scrutinize the appointment. It is bound to follow the advise of the Judicial Selection Commission.

It is the make-up of the Selection Commission which makes the process robust. The commission is made up of the President of the Court, another senior UK judge (not a Supreme Court Justice), and a member each from the Judicial Appointments Commission, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. In contrast, the collegium of the Indian Supreme Court comprises judges of the Top Court itself, essentially meaning there is nothing stopping the judges from having a ‘I scratch your back, you scratch mine’ arrangement.