RETHINKING THE JUDICIAL APPOINTMENTS IN THE INDIAN CONSTITUTION
This article has been authored by Arushi Dokania, a student at Jindal Global Law School, Haryana
A Judiciary that is independent, transparent, committed to the rule of law and to the equality of its citizens is the cornerstone of any democratic institution. A Judiciary that works without fear and favour is the sine qua non of a democracy. Dr. Ambedkar had once stated that “our Judiciary must both be independent of the Executive and must also be competent in itself”.  However, the recent debates in regards to judicial appointments suggest the contrary. The importance of an independent Judiciary was realised when the National Judicial Appointment Committee (hereinafter referred to as NJAC) was declared unconstitutional. The heated debate regarding which organ has primacy in judicial appointments, whether the Executive or the Judiciary has led to the creation of a fair and transparent process of judicial appointments.
This article critically analyses the prevailing system of judicial appointments in India and also proposes a system that shall give equal say to the Executive and the Judiciary in the appointments process. This article takes a view that extreme powers with either organ of the government (Executive or Judiciary) will lead to abuse of power. The Constitution of India clearly states that judges to the Supreme Court would be appointed by the president in deliberation with the Chief Justice of India (CJI) and other judges. However, the Supreme Court, through its interpretation in various cases, replaced this approach by creating a Collegium where the CJI along with the senior most judges have primacy in judicial appointments. The Collegium system which basically means “judges appointing judges” is extremely opaque and depicts arbitrary use of power by judges, aristocracy and unfair appointments; and is contrary to what the Constitution stands for.
Need for an Independent Judiciary
Judicial Independence requires that a judge should decide objectively and in a transparent manner without succumbing to pressures and influences which detract from the course of justice. The doctrine of ‘Independence of Judiciary’ is designed to free the judges from the influence of the Executive and legislature. This doctrine is dependent on the doctrine of ‘separation of powers’. This means that the Judiciary as an institution has autonomy in regards to the Executive and the legislature. However, apart from the institutional autonomy, the individual independence of every judge is also important. Shimon Shetreet believes that independence of both the judges and the Judiciary as an institution together means judicial independence.  The doctrine of independence as constituted by Shetreet states two principles. Firstly, that the Judiciary should act independent of the Executive and the legislature and secondly, that each and every judge should have individual independence to decide on the matter. The two principles laid down by Shetreet cannot exist without each other and are mutually dependent. The Judiciary should be free of any political pressure, political ideologies, public pressure, media pressure, etc. The judges should also have individual independence and should not be influenced by superior judges in administration of justice.
Judicial Appointments under the Indian Constitution
Article 217 of the Indian Constitution provides the procedure to appoint judges in the High Court whereas Article 124 deals with appointment of the CJI and other judges of the Supreme Court. These Articles state that the President appoints judges after consultation with the CJI. The President is deemed to consult the CJI in all judicial appointments other than the Chief Justice. So, the appointments are in the domain of the Executive as appears from the literal reading of the provisions. In the SP Gupta case, the Supreme Court held that the Central Government- President or the Executive has primacy in judicial appointments and the CJI and other judges are just constitutional functionaries who can be consulted. However, this approach was denied in various subsequent rulings of the Supreme Court. The Constitution mandates that the President shall compulsorily consult with the CJI and other judges of the Supreme Court and the High Court for judicial appointments. However, the issue was if the President’s opinion had to be in concurrence with the CJI and this view was rejected in the Constituent Assembly.
The Supreme Court, in Samsher Singh v. State of Punjab, held that it is mandatory to consult with the Chief Justice of India as given in Articles 124 and 217. It emphasised that such consultation should be given due importance and the CJI should have primacy in considering judicial appointments. The Court further stated that if the CJI’s advice is rejected then the Court is empowered to examine if the Executive is being influenced by any other motive. Contrarily, in the case of Union of India v. Sankalchand Himatlal Sheth, the Court observed that it is the prerogative of the President to effectively communicate with the CJI and it is also the duty of the CJI to proceed in the interest of the justice system. The Court also noted that the CJI’s view is not binding on the President as the Constitution clearly requires consultation and not concurrence.
First Judges Case- Why the judicial collegium emerged
Since the adoption of the Constitution, the Executive has always had the first say in judicial appointments and this was reaffirmed in the S.P. Gupta case-popularly known as First Judges Case. However, this was misused by the ruling government many-a-times. During Indira Gandhi’s reign, she had appointed judges who were politically motivated and this move was heavily criticised by the Judiciary as well as the public. Even the Bhartiya Janta Party (BJP) had personal motives when it did not let Gopal Subramanium to be appointed to the Supreme Court because Subramanium had charged Amit Shah in the Sohrabuddin fake encounter case. This revealed the extent to which the Executive-BJP could go to scuttle the appointment of Subramanium. “The saying, that, in order to become a judge it was not important to know the law but important to know the law minister, became the prevailing wisdom.” Only judges that were useful to the Executive were appointed and those like Subramanium who were persona non grata with the Executive were pulled down. This undermined the independence of the Judiciary. Thus, in the S.P. Gupta case, it was reiterated that the power of judicial appointment lies with the Executive. However, the Supreme Court, in Subhash Sharma v. Union of India , held that the ruling in the S.P Gupta case has undermined the position of the CJI and had taken a narrow view of the word ‘consultation’. The court further stated that judicial appointments are not solely the Executive’s domain but the Judiciary also has an equal say in it. If the power to appoint judges solely rests with the Executive then it would be disruptive of the doctrine of judicial independence. In this judgment, the court attempted to reduce the powers that rest with the Executive.
The Second Judges Case- Emergence of the Judges Collegium
In Supreme Court Advocates-on-Record Assn. v. Union of India, popularly known as the Second Judges Case, the Supreme Court reduced the Executive’s role to minimum and held that the Judiciary had primacy in judicial appointments. The Court stated that no other organ of the State was as capable as the Judiciary to adjudge the prospective candidate’s performance, merit and traits. The Court further stated that the CJI should have the last word in the judicial appointment process and the Executive is bound by it. The Court went on to state that the words “in consultation with the CJI” meant that the consent of the CJI was necessary. If the Collegium was firm about its recommendation, then the President would be bound by it.
However, this Judges’ Collegium was highly criticised too. The critics believed that the Supreme Court had made their own version of the provisions of the Constitution. The Collegium system was opaque and lacked transparency. This system had nepotistic tendencies and resulted in arbitrary appointments. No parameters for the selection of candidates were laid down. This Collegium system also failed to make proper judicial appointments and the failure was reflected in the impeachment of Justice Soumitra Sen and Justice P D Dinakaran. Several critics and scholars pointed out that the Judges’ Collegium is highly vulnerable to favouritism. The Collegium system results in judicial aristocracy where judges appoint judges. However, this does not mean that the appointments by the government were free of such tendencies.
The Third Judges Case
The third judges case was similar to the judgement given in the second judges case; the only difference that this case made is that it added “two other senior supreme court judges” and expanded the Collegium. The CJI was now required to consult ‘a Collegium of four senior judges of the Supreme Court under Article 217(1). Thereby, it broadened the procedure of consultation as it included the opinions of several judges. It was clearly stated by the Court that an individual opinion of the CJI shaped in any other way would not be allowed for the appointment of judges in higher Judiciary because of which government would not be forced to operate on it. Furthermore, the Court declared that,a person may not be appointed in case majority members of the Judges’ Collegium are opposed to the selection of that particular individual. If any member holds a strong opinion for not appointing that specific person and he appears to have a reasonable explanation for doing the same, then that person must not be appointed by the CJI. It was believed that the decision made by the Court reduced the chances of arbitrariness in the system due to the expansion of the Collegium by adding two more senior SC judges, and it was essential to give equal importance to the opinion of each and every member of the Collegium.
However, it was highly criticized that the Court did not mention any guidelines with respect to the conditions required for selection. It states that the judicial system is fit to evaluate any person that is best for the Collegium and remains silent on the evaluation guidelines that must be followed while evaluating the performance for the appointment of a judge. The absence of adequate criteria for selection of an individual as a judge of higher Judiciary provides space for personal biases, distortion and manipulations, that may include political factors. There was a space for prejudice and favors due to the ‘lack of transparency’ in selecting individuals that may be appointed as judges.
National Judicial Appointment Commission
The National Judicial Appointment Commission was formed through the Constitution (Ninety-ninth Amendment) Act, 2014 after making an amendment to Article 124. It was established to lay down the rules and regulations to be followed by the President while appointing judges of higher Judiciary and to grant the Commission ‘statutory status’. The Act requires the Commission to take into consideration certain elements while selecting a judge such as seniority, ability, merit and other criteria required for being a judge in the higher Judiciary. The Amendment Act provides that the Commission constitutes the following members: Chief Justice of India, two other senior judges of Supreme Court, the Union Law Minister, two eminent persons, to be selected solely by a Committee composed of the Prime Minister, the Chief Justice of India and leader of Opposition. It further enables the Parliament to govern the process for selection of higher Judiciary and allows the Commission to ascertain the method for discharge of its duties, procedure for appointment of judges, transfer of judges, etc.
Parliament intended, through the participation of political figures and civil society members, to add transparency and efficiency to the procedure of appointing judges. However, it was declared unconstitutional. There were certain significant components that were looked upon while declaring it unconstitutional. The Commission required two eminent persons who were to be nominated but the Act did not determine the criteria or ‘qualifications’ that were to be satisfied by the eminent persons. Since it did not include any requirements for determination of ‘eminence’, it employed an arbitrary method of nominating ‘two eminent persons’ by the Committee. It is important to have a transparent and definite procedure for appointing members of NJAC as they provide for appointment of higher Judiciary. Further, two members of NJAC had veto power because of which, if one of the two members did not approve of an individual, the Commission could not select or recommend that person. An attempt to establish a ‘transparent procedure’ for appointing judges is compromised due to the power provided to the two persons. The Act provides primacy to the Executive and not Judiciary which infringes the major aspect of our Constitution i.e. ‘independence of Judiciary’. The constitutional validity of the Act was challenged in the fourth judges caseand the Court held it to be unconstitutional.
Since the power to make the final decision lies on the CJI while appointing the judges in the higher Judiciary, the intervention of the Union Law Minister and two eminent persons by making use of their veto power is inappropriate and jeopardizes the ‘primacy of Judiciary’. The higher Judiciary periodically reviews the legitimacy of the actions taken by the Executive and the Legislature. If the Executive branch is given power to appoint judges, there are high chances of misuse of such power and it will further infringe upon the ‘primacy of Judiciary’ which is essential within our constitutional framework. Thus, the Court in the given case stated that “without primacy to the opinion of Chief Justice of India, the whole consultation process contemplated under Articles 124 and 217 would only become ornamental enabling the Executive to make appointments in its absolute discretion, most likely based on considerations of political expediency. Such a process would be antithetical to the constitutional goal of establishing an independent Judiciary.” However, the reasoning of the Court based on primacy of Judiciary has been criticized. It has been argued that the views of the judges does not provide clear moral legal rationale while considering primacy of judges as part of basic structure of the Constitution for appointing higher Judiciary.
When the Court declared the NJAC unconstitutional, it observed that the prevalent Collegium system had some serious issues that would undermine the importance of Judiciary as an institution. The Collegium system was notoriously opaque, mysterious and closed door. It was basically a way of pleasing the Collegium instead of the Executive. The issues with the Collegium system are evident in the its decision that was published on October 30, 2018 in which it endorsed new judges to the Supreme Court. The Collegium recommended judges like Justice Hemant Gupta, Ajay Rastogi, etc. on the basis of seniority and state wise representation in the Supreme Court. It did not take into consideration the merit of the candidates. The criterion for selection of candidates is entirely unknown and ambiguous. This clearly shows that the Collegium works undemocratically and in secrecy.
What we need today is a transparent body that can replace the Collegium. The question we need to deliberate on is whether the independence of the judges and the Judiciary would be at stake if we follow a pro-Executive procedure for judicial appointments. The Executive shall only have powers in the judicial appointment procedure and shall not interfere in the transfer of judges and appointment of the Chief Justice. The Judiciary might not be entirely independent with the Executive playing a role in the appointment procedure but at the same time the Executive would not interfere in the decisions of individual judges.
The Constitution clearly states that the President shall have a role to play in the appointment process and this is because the framers of the Constitution themselves felt the need for it. The motive behind the provisions laid down in the Constitution was to ensure a proper system of checks and balances. While the entire theory of separation of powers was established to ensure that all organs of the state are independent of each other, the Constitution framers wanted the Executive’s involvement in judicial appointments so that no abuse of power could take place.
The United States of America illustrates this perfectly. In the USA, the President selects the suitable candidates to appoint to the Federal Court, and the same has to be consented to by a majority vote in the Senate.  In this model, a Committee of fifteen members, which falls under the purview of the American Bar Association, deliberate upon the nominated candidates and categorize them as qualified and unqualified. This simplifies the judicial appointment procedure. The Judiciary is allowed to intervene and state its view, however, the view is not binding.
The Indian Judiciary should follow a similar approach and go by what is mentioned in the Constitution. The Bar Association should be given weight through a committee on Judiciary and their views should be given due importance in the appointment of judges. The American model does not completely follow the concept of separation of powers as it is impossible for all organs of the State to function independently.
“The entire theory of separation of powers by Montesquieu revolves around the belief that a single unit holds all the power and powers of all organs cannot be totally separate. This article also duly relies on the judicial appointment model of Britain where the Executive and the Judiciary equally take part in the judicial appointments. The model that Britain follows does not solely rely on the Executive but the selection is done in a transparent manner. The Judicial Appointment Committee has a statutory duty to suggest diverse names in the selection procedure as this widens the pool of individuals who are appointed on merit. The Executive in Britain has limited veto power which is only exercised when appointments are arbitrary.
We can observe a conflict between the Executive and Judiciary to maintain the authority of appointing the judges to higher Judiciary. So as to retain their power, the court has adopted various terms such as ‘concurrence’ and ‘primacy’, and incorporated them within the Constitution but with introduction of NJAC, the Executive tried to eliminate the ‘consultation’ system with the decision of CJI and other members of the Commission.
The basic doctrine of ‘independence of Judiciary’ has been ignored in this disparity between the two. Appointment of judges by either of the two systems did not prove to be adequate with regard to independent Judiciary and rule of law. A rigorous and compendious system must be developed in order to provide a reasonable and fair procedure for appointing judges without affecting the ‘Judiciary’s independence’. It is necessary to be cautious that the authority of appointment is not vested in a few hands who are likely to misuse such power. In order to guarantee the ‘check and balance’ and ‘rule of law’ without undermining the ‘independence of the Judiciary’, a middle path should be followed.
Hence, this article suggests a model that ensures the enthusiastic participation of the Executive in the judicial appointment procedure which is evident in the American Model. Lastly, the Executive should only intervene in the judicial appointment procedure and not the transfer of judges and the appointment of the Chief Justice.
 Dr B.R. Ambedkar, Reply to the debate on the draft provisions of the Constitution on the Supreme Court, (24-5-1949), in Constituent Assembly Debates, Vol. VIII, 258.
 Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in S. Shetreet & J.Deschenes (eds.), JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE (l985) pp. 590-681; M.P. Singh, Securing the Independence of the Judiciary-The Indian Experience, 10(2) INT’L & COMP L REV 245, 247, 248 (2000).
 Shimon Shetreet (1985), Ibid.
 Rubabbudin Sheikh vs State of Gujarat, AIR 2010 SC 3175; BHUSHAN, PRASHANT. “Scuttling Inconvenient Judicial Appointments.” Economic and Political Weekly, vol. 49, no. 28, 2014, pp. 12–15.
 Ibid, BHUSHAN, PRASHANT. “Scuttling Inconvenient Judicial Appointments.”.
 See C Raj Kumar, Khagesh Gautam, The National judicial appointment commission: Question of constitutionality, ECON. & POL. WKLY. 50, 26-27, 27 (2015)
 Lawrence Baum, The Selection of Justices, The Supreme Court (7th Edn.)
 James Madison, Federalist No. 47, 1778