Introduction
The process of appointing judges in India has evolved significantly since the adoption of the Constitution, and it remains a topic of considerable scrutiny. Initially, the President of India, in consultation with the Chief Justice of India (CJI) and other senior judges, was responsible for appointing judges to the Supreme Court and High Courts. This process has faced controversies, including allegations of political influence.
Several landmark cases have shaped the appointment process. In SP Gupta v Union of India[1], the Supreme Court ruled that the CJI's advice was primary in appointing judges. This decision was overturned in the Second Judges Case[2], which established the collegium system, giving the CJI and a group of senior judges control over appointments. The Third Judges Case[3] further reinforced the collegium system's authority.
In this blog, the appointment of judges will be discussed in light of the case laws related to the appointment of judges, constituent assembly debates, and the shortcomings of the collegium system.
Constituent Assembly Debates
During India's transition to independence, the Government of India Act, 1935 governed the appointment of judges, with the Governor-General responsible for appointing judges based on governmental recommendations. However, this system faced criticism for its lack of transparency, accountability, and excessive centralization.
The Constituent Assembly, tasked with drafting a new constitution for India, extensively deliberated on the appointment of judges, reflecting diverse views among its members. Some advocated for a judicial-centric approach, granting the judiciary complete authority over nominations, while others favoured an executive-dominated system where the final decision rested with the executive branch. These discussions provided invaluable insights into the perspectives of the framers of the Constitution regarding this crucial aspect of governance.
Dr. B.R. Ambedkar stated that the judiciary should have total control over the appointment process, free from political influence. According to him, "the judiciary must be protected against the potential tyranny of the government and the legislature, and for that reason, it is vital to insulate the judiciary from political interference. [4]" Ambedkar emphasized the paramount importance of judicial independence.
Another assemblyman, K.M. Munshi, contended that the executive should be included in the appointment procedure. "What is the guarantee that the court will not be corrupted," he said, "since the executive is not to be trusted? [5]" Ambedkar acknowledged the impracticality of a complete separation of powers in practical governance and advocated for executive involvement in the selection process of judges. He argued that since the executive is accountable to the public and possesses better qualifications to assess candidates' suitability, it should play a significant role in the selection of judges.
Alladi Krishnaswami Ayyar addressed the subject of qualifications, arguing, "The judges should be recruited from among those who have a suitable legal education and appropriate experience in the legal profession [6]." He also acknowledged the value of diversity, stating, there should be a fair representation of diverse communities and classes of people in the nomination of judges.
Various recommendations were put forward by members of the assembly. One significant proposal involved the establishment of a distinct body to oversee the appointment process, as suggested by individuals like K.T. Shah and B.N. Rau. They argued that an autonomous board would ensure transparency and accountability.
H.V. Kamath suggested the establishment of a commission comprising both judicial and non-judicial members to provide recommendations regarding the nomination of judges. This composition, he argued, would prevent any disproportionate influence from either the executive or the judiciary in the nomination process. [7]
Sardar Hukam Singh proposed that Parliament should possess the power to confirm judges prior to their appointment. This, he argued, would ensure the selection of only qualified candidates and foster transparency and accountability in the hiring process. [8]
First Judge's case
The First Judges Case arose from a disagreement over judicial appointments to the Supreme Court and high courts in India. In 1977, the President sought the Supreme Court's advice on the executive's power to appoint and remove judges, per Article 143 of the Constitution. The key issue was whether the President had to abide by the Chief Justice of India's recommendations.
A seven-judge bench was constituted and deliberated on the balance of power between the executive and judiciary regarding judicial appointments. This case is significant for defending constitutional principles and judicial independence. The judges underscored the need for an autonomous judiciary, free from external pressures.
The case centered on Articles 124, 217, and 222 of the Constitution, which govern the appointment and removal of judges in the Supreme Court and high courts. A primary focus was interpreting the term "consultation" in Articles 124 and 217. The court had to determine if "consultation" meant "concurrence" or "concurrence after consultation," deciding whether the Chief Justice's advice was binding or merely advisory.
The judges ruled that "consultation" does not mean "concurrence," and the President or Governor is not bound by the Chief Justice's views. However, the Chief Justice's opinion should be given substantial weight and typically followed, except in exceptional cases where the opinion is unreasonable or based on extraneous reasons.
The ruling balanced judicial independence with accountability and transparency in the appointment process. Requiring the President or Governor to follow the Chief Justice's judgment was seen as overly restrictive. The case emphasized the need for transparency and accountability in judicial appointments, subjecting executive powers to scrutiny to prevent misuse.
The judges highlighted the collaborative nature of executive and judicial roles in judicial nominations and removals. They asserted the necessity of prior consultation with the Chief Justice of India and other senior judges to ensure impartiality and merit in appointments. The ruling also stressed the importance of fair, transparent procedures, clearly defined selection criteria, and equitable access for all qualified candidates.
The First Judges Case significantly impacted India's judicial system by reinforcing transparency and accountability in judicial appointments, bolstering public confidence in the judiciary. It affirmed democratic principles, such as judicial independence and the separation of powers, which are crucial to a free society. The case's advocacy for fair and transparent procedures in judicial appointments strengthened India's democracy and the rule of law.
Second Judge's case
The Supreme Court Advocates-on-Record Association v Union of India case, commonly referred to as the Second Judges Case, is a landmark ruling that reinforced the principle of judicial independence established in the First Judges Case. While the First Judges Case primarily addressed governmental influence in the appointment and transfer of judges, the Second Judges Case focused on clarifying the judiciary's role in these proceedings.
In this case, the Supreme Court ruled that the selection of judges must be transparent, impartial, and based on their qualifications. The court concluded that the executive's authority should be limited to appointing judges based on recommendations made by a collegium of judges. The collegium system, consisting of the Chief Justice of India and two senior most judges, is responsible for choosing and proposing candidates for appointment to the Supreme Court and high courts.
The Second Judges Case addressed the interpretation of "consultation" in Article 124 of the Constitution, debating whether the President of India was required to consult with the Chief Justice of India and other senior judges before appointing judges. The court clarified that "consultation" did not mean "concurrence," indicating that the President was not bound to obtain the approval of the Chief Justice and other senior judges before making appointments. However, the President must consider their views seriously.
The court described "consultation" as a deliberative process involving dialogue among the President, the Chief Justice of India, and other senior judges to solicit informed opinions for appointments. The opinions of the Chief Justice and other senior judges should be given significant weight, with the President expected to accept their opinion unless there are compelling reasons to do otherwise.
The court emphasized transparency and impartiality in the consultation process, mandating clear selection criteria for judges and ensuring the participation of all qualified applicants. The Second Judges Case significantly influenced India's judicial system by establishing a structured consultation mechanism among the President, the Chief Justice, and other senior judges, clarifying the concept of "consultation" under Article 124, and stressing the importance of objectivity and transparency in the selection process. The President is also required to justify any departure from the Chief Justice's viewpoint.
The Second Judges Case, which established the collegium system for appointing judges, has received both praise and criticism. Supporters argue that it has protected judicial independence and ensured that nominations are based on qualifications rather than politics. However, several criticisms have been raised against the system.
One major critique is the lack of transparency in the collegium system. Unlike the previous system, where the executive played a significant role, the collegium lacks a formal and open process for appointments. This has led to allegations of favoritism and nepotism due to the absence of specific eligibility requirements and reliable oversight mechanisms.
Another issue is the delay in the appointment process, resulting in a backlog of cases and vacancies in the judiciary. The lack of a formal appointment procedure and the collegium's obligation to recommend candidates have left many judicial positions unfilled.
The Second Judges Case also did not address the issue of judicial diversity. Despite constitutional provisions requiring representation from underrepresented communities, the judiciary has long struggled with a lack of diversity. The collegium system, which prioritizes seniority and experience, may exclude candidates from underrepresented communities.
Third Judge's case
In the Third Judges Case, the issue concerned the interpretation of the term "consultation" under Article 124 of the Indian Constitution. The Supreme Court ruled that "consultation" required the creation of a "collegium" consisting of the Chief Justice of India and 4 senior judges for the appointment of judges to the Supreme Court and High Courts. The executive's role in this process was limited to offering opinions on the suitability of candidates, with the collegium making the final decision.
The Court emphasized that the executive's role was merely advisory and supportive to the collegium, and that "consulting" in Article 124 did not imply "concurrence." It highlighted the importance of maintaining judicial primacy in judge nominations to safeguard judicial independence.
However, the Third Judges Case did not address several concerns about the appointment procedure, including transparency, selection criteria, and the absence of an independent oversight mechanism. Critics argue that these shortcomings foster favoritism and nepotism in the recruitment process. Additionally, the interpretation of "consultation" has been criticized for increasing judicial power at the expense of the executive's role in nominations and for not reflecting the original intent of the Constitution's framers.
A primary criticism of the Third Judges Case is that it grants the judiciary complete discretion in nominating judges without adequate checks and balances from the executive or legislative branches. This raises concerns about the potential concentration of judicial power and the risk of judicial overreach. The ruling significantly expanded the scope of judicial review, allowing the judiciary to assess and reject candidates without accountability to other government branches, raising concerns about the judiciary's lack of accountability as an institution.
Furthermore, the Third Judges Case has been faulted for contributing to delays in judge appointments, resulting in a backlog of court cases. By consolidating the collegium structure established in the Second Judges Case and granting full control over the appointment process to the judiciary, the ruling exacerbated these issues. Consequently, vacancies in the judiciary and a backlog of cases persist, leading to further delays and opacity in the recruitment process.
The Third Judges Case also failed to address the issue of judicial diversity. Despite constitutional provisions mandating representation from marginalized communities, the lack of diversity in the judiciary remains a persistent concern. The collegium system, which prioritizes seniority and experience, may inadvertently disqualify applicants from underrepresented communities, thereby diminishing judicial diversity.
Challenges and Concerns in the Collegium System of Judicial Appointments in India
The appointment of judges in India, particularly under the Collegium system, has been subject to scrutiny and debate. Although intended to uphold judicial independence, the system faces significant challenges and raises numerous concerns:
Transparency and Accountability: The Collegium system is criticized for its lack of transparency and accountability. The absence of external oversight diverges from democratic norms, where judicial appointments undergo parliamentary confirmation or independent commission review. This lack of scrutiny undermines judicial accountability, as decisions are made without public or governmental oversight. Moreover, limited avenues exist for holding judges accountable, and the decision-making occurs behind closed doors, with unclear selection criteria and minimal public participation.
Opinionated Decision-Making: The Collegium system's decision-making process is often influenced by the personal opinions and preferences of its members. This subjectivity raises concerns about the consistency, objectivity, and fairness of judicial appointments.
Imbalance of Power and Lack of Checks and Balances: The Collegium system centralizes appointment authority within the judiciary, particularly the Chief Justice of India and a few senior judges. This concentration of power limits external oversight and scrutiny, potentially leading to arbitrariness and favouritism. The lack of effective checks and balances undermines democratic governance and the separation of powers, creating tensions between the judiciary and other branches of government.
Executive-Judiciary Conflict: Conflicts between the executive and judiciary arise from the judiciary's exclusive authority in the appointment process, marginalizing the executive's role. These conflicts stem from questions of institutional authority and accountability, with the executive seeking a significant role to ensure democratic oversight, while the judiciary asserts its independence to avoid political interference.
Conclusion
The cases involving the first, second, and third judges have significantly shaped the operational framework of the Indian judiciary, particularly concerning the appointment and transfer of judges. However, it is widely argued that the rulings in these cases diverge from the original intentions of the Constitution's framers.
While the Supreme Court's broad interpretation of the term "consultation" in the second and third judges cases raised concerns about the appropriate allocation of authority between the executive and judiciary. Nevertheless, the third judges case resulted in the implementation of the collegium system, which has faced criticism for its perceived deficiencies in transparency, accountability, and inclusivity.
Furthermore, the dominance of the collegium system in the appointment and transfer processes appears to contradict the constitutional mandate for a more balanced involvement of both the government and judiciary. The underrepresentation of marginalized communities in the judiciary is a consequence of the judiciary's role in the selection of judges, contrary to the framers' aspirations for the judiciary to reflect the diversity of Indian society.
[1] SP Gupta v Union of India AIR 1982 SC 149.
[2] Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441.
[3] Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739.
[4] Constituent Assembly Debates, Vol. 7, p. 85.
[5] Constituent Assembly Debates, Vol. 7, p. 88.
[6] Constituent Assembly Debates, Vol. 7, p. 85.
[7] Constituent Assembly Debates, Vol. 7, p. 90.
[8] Constituent Assembly Debates, Vol. 7, p. 93.