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Judicial Appointments: Resolving the Tyranny of the Unelected
“India is the only country where judges select themselves, determine their own transfers and also discipline themselves” 1 ~ K.P.S Gill, former DGP
The National Judicial Appointments Commission is a constitutional body established to ensure transparency in the procedure of appointments of the judges of the Supreme Court and the High Courts. This was struck down by the Supreme Court in 2015, saying that it challenged the independence of judiciary. The judgement brought back the collegium system which indeed has no constitutional provision. The objective of the paper is to analyse the importance of a separate body for appointments of judges in our country and why our judicial fraternity is still uncertain on the procedure of appointment of the judges. The research is based on secondary sources which included online data, books, articles and journals.
The Collegium System which is followed in our country for the appointments of the judges of Supreme Court and the High Court came into existence in 1993 after the judgement of the Supreme Court Advocates-on Record Association v. Union of India 2. In this system, the Chief Justice of India, along with four other judges of the Supreme Court, decide the judicial appointments, their transfers etc. The system has no provision in our Constitution or successive amendments and is often pointed for favouritism, nepotism and corruption. It has no process to deal with a complaint against a particular judge involved in corruption and bias. The National Judicial Appointments Commission was established to make this process of appointment of judges more transparent and accountable. The judges will be selected by the commission members drawn from the judiciary, legislature and civil society.
1 Judicial Accountability by Kalraj Mishra, foreword- Arun Jaitley, pg- 25 2 (1993) 4 SCC 441
With the establishment of the country’s earliest courts in 1861, the judges were appointed by British monarch and held office at her Majesty’s pleasure. They were given certain guidelines to follow and professional qualification was set to qualify as a judge. Passing of the Government of India Act, 1935 gave powers to the judiciary which stated that the judges were to retire at the age of 65 but the queen could dismiss any judge if found involved in unacceptable practices. However, after independence, articles 124 and 217 of the constitution of India dealt with the appointment of judges of the higher judiciary.
Debate around The National Judicial Appointments Commission has been quite vociferous. There was a huge discussion on both in the favour and against this topic and outside these black and white arguments, the complex reality is that it has been one of the most difficult tasks the supreme court has faced in recent years. The legal fraternity continues to be greatly divided over the matter of how to appoint nation’s senior judges. Therefore, to understand and analyse the importance of NJAC, this will be the topic for my research paper.
One of the most important pillars of democracy, the Judiciary has magnanimity of powers. To check these powers, constituents of the Judiciary need to be scrutinized, to ensure its functionality and credibility.
In furtherance and addition to the NJAC system 3 of appointment of judges, this paper suggests and deliberates upon a new system, which comprises of the following members in a committee, who shall contemplate and appoint judges to the Judiciary of India:
Chief Justice of India (CJI) + 1 senior most judge of the Supreme Court + 2 eminent persons from related fields + Prime Minister (PM) + Leader of Opposition (LO) + Law Minister of India.
3 WRIT PETITION (CIVIL) NO. 13 OF 2015, NJAC Judgment, Supreme Court Advocates-on-recordAssociation Vs UOI, 2015
This is a mode of delegation of legislative powers to the judiciary. When the judiciary, as an independent organ of the democratic state, is systematically exercising the powers of another organ, without any screening or qualification, then there needs to some mechanism of check and balance, because of the absence of external check on these powers of the judiciary. 10 When judges choose their successors unilaterally, they are subsuming this marginal legislative power among themselves. For a control on this cycle, the legislature must have a role to play in the balancing factor. 11
The Law Minister of the country, as a member of the parliament, who represents the legislature and the executive, can be link between the judiciary and the other organs, by representing their will, while selecting and appointing the judges for the judiciary. Since the judge-made laws have no screening, and their powers are unfettered, this method creates a check and balance mechanism when the selected person himself needs to be approved by a representative of the legislature. There shall be no problem with specialization or qualifications, as the Law Minister himself is entrusted with the responsibility of executing the legal domain of the country in his portfolio. 12
Need for democratic representation in the Judiciary
As the largest democracy in the world, India has always upheld high ideals of democratic values. Amidst the three pillars of democracy, the legislature and the executive comprise of either directly or indirectly elected members. However, the Judiciary, being such an important cog in the democratic system, neither have any democratic representation, in any of its policy making, nor in the appointment of judges. Judiciary, which is undemocratically
(^10) 11 Law Commission Report No. 230, Government of India, Supreme Court Advocates-on-record Association V. UOI , 1993 (4) SCC 441 Suggestions’ , August, 2009^ ‘Reforms in the Judiciary – some 12 Law Commission Report No. 80, Government of India, ‘August, 1979 Method of Appointment of Judges’ ,
selected, without any representation of the voice of the masses, needs a change, to represent the voice of people. 13 As the people of the country are an important stakeholder in the judicial system of the county, as they are at the receiving end for being the beneficiary, as they seek justice, they deserve some representation in the judicial appointments. 14
With such a vast and diverse population, it is not possible or functional to give away the judicial reigns to the public at large. The people will not objectively know the right choice of judges, neither are they politically or functionally connected with the system to have an unbiased and rational choice of judges. For people’s representation, there must be indirect democratic representation where members elected by the public can be involved. 15 The Prime Minister (PM), who is the leader of the democratically elected party running the government and the Leader of Opposition (LO), who is the head of the party which obtains the second highest votes, forming the opposition in the parliament, the two people relied and trusted by all the legislative and executive members. Therefore, the LO from the opposition side, and the PM from the government’s side, are symbolic of the two democratic heads of the people’s will. With these two as a part of the decision making process, not only are all kinds of people represented, but all kinds of opinions are also given a chance to be debated. These two heads understand the needs and demands of the country’s population in the best and holistic way, providing representation to a larger base of people, the ones who voted for the governing party and the ones who did not. This system will ensure the removal of political power-play as the ruling party is motivated to engage in partisan entrenchment not to just secure just a bench to assist the leader with his
13 Law Commission Report No. 214, Government of India, ‘ cases I, II and III - S. P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates-on-Proposal for Reconsideration of Judges record Association Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in1998 (7) SCC 739 ’, November, 2008. 14 The Hindu, http://www.thehindu.com/opinion/lead/njac-verdict-an-anticonstitutional-judgment/ article7819287.ece, last visited – 1/11/201715 Law Commission Report No. 80, Government of India, ‘ Method of Appointment of Judges’ , August, 1979
people which relevance to the law field, like non-practicing lawyers, army personnel, activists and socialists, scholars, independent journalists etc. are all capable of serving their purpose in the committee.^19
Credibility of the Judiciary at the cost of complete Independence
The judiciary has always been entitled to large scope of powers. The courts interpret statutes and articles, they defines the vires of the legislature and also the ambit of constitutionality. They are only the ones to adjudicate upon it also. All these are self-subsuming powers of the judiciary, which vest with them, by virtue of which they have a strong hold over the legislature. 20
With the power of the judicial review, the judiciary has the power to scrutinize and examine all actions of the other organs of the state, giving it some semblance of supreme power. With such strong hold over the elected legislature, a tyranny of the unelected, is perpetuated by the judiciary. There is an alleged lack of transparency in the existing system of appointment of judges, which is another symptom of absolute independence. 21
Such independence may be dangerous. Therefore, the judiciary has often lost credibility, in the political domain of the country, for being arbitrary, or overhauling in nature. Such loss of credibility and loss of legitimacy cannot happen at the cost of independence. So, there must not be complete independence of the judiciary, it must be fettered by other checks and balances, like mentioned above.
19 Law Commission Report No. 230, Government of India, Suggestions’ , August, 2009 ‘Reforms in the Judiciary – some 20 The NJAC Debate with Arnab Goswami, https://www.youtube.com/watch?v=tD2GNu556aA&t=3289s, Last visited – 1/11/ 21 Law Commission Report No. 214, Government of India, ‘ Proposal for Reconsideration of Judges cases I, II and III - S. P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates-on-record Association Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739 ’, November, 2008.
To uphold maximum participation of the judiciary in the appointment of Judges, the Chief Justice of India shall be a part of the decision making process. 22 The senior most judge of the Supreme Court at the time, who is to be the upcoming CJI, and shall have to work with the judges hereby appointed, shall also have a vote in the committee. Both these members are most experienced jurists in the country, and therefore, there is no question of specialization in the committee. 23
Conclusion
The Collegium System which is followed in India, though showcases full independence of the judiciary, is an opaque system of appointment of the judges. Only those conferred with the power know the grounds of promotion and appointment, and merit and ability is often sidestepped for seniority and sometimes for kith and kin. The National Judicial Appointments Commission, though being condemned by a number of leading advocates, for example, Ad. Ram Jethmalani and many others, still remains the expression of people who demand transparency in the procedure of appointment of the judges who are the justice providers of the country. As our Honourable Finance minister Mr Arun Jaitley would argue, legislature and judiciary cannot be totally independent of each other, as they need to work hand in hand, to complement each other’s work and to maintain check and balance.
For the purpose of this check and balance, the Law Minister brings the legislature’s concern to the front, in screening the judges. Similarly, the presence of LO and the PM nullifies the political influence in the judiciary. They also bring democratic representation to the voice of the masses. The eminent persons give a fresh opinion and enhance the quality of debate by broadening the horizons with inputs from related fields. Most importantly, the CJI and the
22 Law Commission Report No. 230, Government of India, ‘Reforms in the Judiciary – some Suggestions’ 23 WRIT PETITION (CIVIL) NO. 13 OF 2015, NJAC Judgment, Supreme Court Advocates-on-, August, 2009 record Association Vs UOI, 2015.
