Judges’ appointments - the powers that be!
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Judges’ appointments - the powers that be!

Post by on Wednesday, April 27, 2022

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Judicial Independence is the bulwark of our system. It gives life to the words of the Constitution. For any democratic country, it is imperative that the process of appointment of the judges remains independent and uninfluenced. Wee Chong Jin, the first Chief Justice of Singapore has rightly said, “The qualities that one should look for in a judge are a burning desire to be fair and impartial; the courage to uphold the law and strike down injustice; compassion, coupled with an understanding of human frailties; and lastly, love for the law. 


Of late, there has been a renewed debate over the  allegations that judges were appointing judges through the collegium system and such a process results in the side-lining of the executive. While the judges of district court and other lower courts are appointed by an extremely transparent process that includes three stages of examination. A competitive exam namely PCS (J) is conducted and the interested candidates apply for the same. It is followed by a written test and the qualifying candidates then appear for interviews being the final stage for selection of a Magistrate/ Civil Judge junior Division. The same process is followed by all the states respectively for appointment of judges at junior level. Talking about the appointment for higher judicial officers, a similar patterned exam is conducted for Higher Judiciary as well. Certain advocates with more than seven years of practice are also appointed from the Bar due their excellence in practice. Problems however arise in the matter of the appointment of senior judges, i.e. the judges of The Supreme  Court and the High Courts.

The system wherein a group of the senior most Supreme Court judges headed by the Chief Justice makes recommendations to the President on the names of the persons who should be appointed as judges shrank the executive power in proposing a candidate for judgeship along with taking away the executive’s veto power. Answering these allegations, CJI N V Ramana negated them by calling them a –‘widely propagated myth’! While delivering the 5th Late Shri Lavu Venkateswarlu Endowment Lecture at Siddhartha Law College in Vijayawada, Ramana said, “It is nowadays fashionable to reiterate phrases like ‘judges are themselves appointing judges’. I consider this to be one of the widely propagated myths. The fact is that the judiciary is merely one of the many players involved in the process. Many authorities are involved, including the Union Law Ministry, state governments, Governors, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate. I am sad to note that the well-informed also propagate the aforesaid notion as these narratives suit certain sections.”

As per the Articles 124(2) and Article 217 of the Constitution of India, the Judges of The Supreme Court and The High Courts of India shall be appointed by The President after consultation with such of the judges of The Supreme Court and The High Courts in the States as the President may deem necessary for the purpose. This article was subject to an amendment in the year 2015 through which the law was changed and thereafter it was said that the judges would be appointed by the President in consultation with NJAC (National Judicial Appointment Commission).

This Commission consisted of three senior-most judges of the Supreme Court, the Union Law Minister, and two eminent persons appointed by the Chief Justice of India, the Prime Minister, and the leader of Opposition in the Lok Sabha.This Amendment was challenged vide the Advocate on Record Association V. Union of India decided on 16th October 2016 thereby questioning the independence of judiciary. The main point of contentions raised herein were that this would be a way to interfere in appointment of judges from an executive head and thus by this judgement the amendment was made and the NJAC Act was declared to be the ultra vires by the Apex Court. Since it was declared as ultra vires, we fell back upon the collegium system or the law that existed previously. 

So in simple words now the judges of the Supreme Court and High Court would be appointed by the President after consultation with the judges of Supreme Court and High Court. The Chief Justice of Supreme Court would be appointed on the basis of the seniority rule and the Governor would be consulted while appointing Chief Justice of their respective High Courts. The word “consultation” is to be read as “concurrence” and if the recommendation given by the Supreme Court judges is not found to be appropriate, the candidature is reconsidered by the Supreme Court judges and the existing Chief Justice at the suggestion of the executive and then either a new candidate is recommended or the previous one is re-approved.

Over a period of years, much debate and conjecture has gone into interpreting the word ‘consultation’ w.r.t the executive’s power to appoint judges. While initially, right after independence was attained, a convention of seniority was evolved for appointing The Chief Justice of India, matters took a turn in the 80’s after a series of supreme Court cases in which it is said that the judiciary essentially took over the power of appointment of judges to itself. These cases, also popularly known as The Judges Cases -in 1981, 1993 and 1998,  brought about many changes wherein the power of appointment kept on being shifted from the executive to the judiciary and the matter was finally laid to rest vide the third case in 1998. An attempt was again made in 2014, by the NDA government which attempted to claw back control on judicial appointments by establishing the National Judicial Appointments Commission through constitutional amendments. Although the law, which gave the executive a greater foot in the door in appointments, had support across political parties, the Supreme Court struck it down as unconstitutional.

The biggest challenge that confronts the judiciary today is the increasing number of vacancies in the courts. Even though the government is making full efforts to reduce the number of vacancies, yet it has been cited time and again that the Centre is not strictly adhering to the timeline that has been laid down in the Malik Mazhar case and it takes a long time for the Union Law Ministry to send the recommendations made by the High Courts to The Supreme Court. There has also been a rising trend wherein the courts orders are being flouted or disregarded which also exerts pressure on the judiciary to ensure that justice is not only done but is also seen to be done. 

Judicial review is the most important aspects in any democratic country to ensure that the executive performs its functions within the parameters set out by The constitution. Justice is not only the responsibility of the judiciary but is also a primary duty of the executive as well as the legislature of the country. Unless a concentrated effort is made by all the three organs- the system of judicial review, the filling up of the courts vacancies, making laws with a clear foresight and updation of the infrastructure cannot be done successfully and moreover any short fall in the same cannot be solely attributed to the Judiciary.

Efforts are already being made in the area of the institution of public prosecutors wherein the Delhi High Court has taken steps to initiate a process of interaction with the advocates who have been selected by the Delhi Government to represent the State as PPs. As per a statement of the CJI, “Historically, prosecutors in India have been under the control of the government. They do nothing to prevent frivolous and non-deserving cases from reaching the courts. Public prosecutors automatically oppose bail applications, without independently applying their mind. They attempt to suppress evidence during trial which could benefit the accused.” Such problems can only be redressed by having an independent selection committee for these appointments and having the right approach between all the three organs of the State.

The need of the hour today is to appoint efficient and intelligent candidates as judges, candidates who are known for their intelligence and passion for law, their courage and also their compassion. Such candidates are available in plenty but are mostly left out in the process of selection. If stringent criteria are set and followed by the collegium and transparency is ensures, the system will work wonders and we will get the judges that the country deserves and needs.


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