Evolution Challenges of Judicial Appointments in India Introduction 

• India’s judiciary, often regarded as the guardian of the Constitution, plays a vital role in upholding justice, ensuring the rule of law, and acting as a crucial check on the executive and legislature.
•  The Indian judicial system comprises approximately 12,000 courts, including the Supreme Court, 21 High Courts, 3,150 District Courts, and a host of Magistrate Courts at various levels. 
• Judicial appointments in India are governed by Articles 124 to 147 for the Supreme Court and Articles 214 to 231 for the High Courts, emphasizing the importance of an independent judiciary in the constitutional framework. 
• However, the process of judicial appointments in India has evolved through a series of constitutional provisions, judicial rulings, and executive challenges, which are central to maintaining the integrity and autonomy of the judiciary.

Constitutional Provisions on Judicial Appointments in India

The Indian Constitution establishes a framework for judicial appointments with the aim of ensuring an independent judiciary while maintaining checks and balances between the executive and the judiciary.

• Article 124(2): Appointment of Supreme Court Judges:

• • • Article 124(2) mandates that every Supreme Court judge is appointed by the President of India after consultation with such Supreme Court and High Court judges as the President deems necessary.
    • For the appointment of a judge other than the Chief Justice of India (CJI), the Chief Justice of India must be consulted.

• Article 217: Appointment of High Court Judges: 

• • Article 217 states that every High Court judge is appointed by the President after consulting the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court (except for the appointment of the Chief Justice of the High Court).
• These provisions outline the consultative process but also imply that the executive has the final say, although the judiciary’s involvement ensures some measure of judicial independence.

The Historical Evolution of Judicial Appointments in India

• • The process of judicial appointments in India has been shaped by both historical traditions and constitutional developments. 
  • Over the years, there has been an ongoing battle between the executive and judiciary over control of judicial appointments, leading to significant changes.
  • Colonial Rule: Executive Dominance: 
  • During colonial rule, the executive had full control over judicial appointments, with little room for judicial autonomy. This system ensured that judicial appointments were influenced by the executive branch.

• Constitutional Debates: Safeguarding Judicial Independence: 

• • • The framers of the Indian Constitution were concerned about the potential for executive overreach in the appointments process. 
    • They aimed to balance the powers of the executive and judiciary to ensure judicial independence. 
    • Articles 124(2) and 217 reflect this effort to maintain a delicate balance.

• Judicial Interventions: The Judges Cases:

• • • The balance between the executive and the judiciary in judicial appointments was significantly altered by a series of Supreme Court rulings, namely the First, Second, and Third Judges Cases. 
    • These rulings led to the development of the collegium system, which gradually reduced the executive’s role in judicial appointments.

• First, Second, and Third Judges Cases: The First, Second, and Third Judges Cases were landmark rulings by the Supreme Court that shaped the present-day system of judicial appointments in India.

• First Judges Case (1981): In the First Judges Case, the Supreme Court ruled that consultation under Article 124(2) did not mean concurrence. This decision gave the President the ultimate power in judicial appointments, meaning the President was not bound by the Chief Justice of India’s (CJI) advice.

• Second Judges Case (1993): In the Second Judges Case, the Supreme Court overruled its earlier decision, asserting that consultation meant concurrence. The Court further strengthened the CJI’s role in the process, declaring that the CJI, along with a collegium of senior judges, should make judicial appointments. This ruling shifted the balance of power in favor of the judiciary.

• Third Judges Case (1998): The Third Judges Case expanded the collegium system by increasing the number of members in the collegium from three to five. The collegium now included the CJI and the four senior-most judges of the Supreme Court after the CJI. This ruling further entrenched judicial control over judicial appointments.

• National Judicial Appointments Commission (NJAC) and Judicial Response:

• • In 2014, the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act were introduced, proposing a new system for judicial appointments. This system aimed to replace the collegium system with a more inclusive model that involved the executive and civil society.

• Membership of NJAC: 

• • • The NJAC was proposed to be a six-member body:
    • The Chief Justice of India as the ex-officio Chairperson.
    • Two senior-most Supreme Court judges as ex-officio members.
    • The Union Minister of Law and Justice as an ex-officio member.
    • Two eminent persons from civil society, nominated by a committee consisting of the CJI, Prime Minister, and Leader of Opposition in the Lok Sabha.

• Veto Power in NJAC:

• • • The NJAC Act provided veto power to any two members of the NJAC, allowing them to block the appointment of a judge if they disagreed with the recommendation.

• Fourth Judges Case (2015): The Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act as unconstitutional in 2015, reaffirming the collegium system. The Court ruled that the NJAC violated the independence of the judiciary and was inconsistent with the basic structure of the Constitution.

Why the NJAC Needs Reconsideration?

• • Despite the Supreme Court’s ruling, there are arguments in favor of revisiting the NJAC system to make judicial appointments more transparent and accountable.

• Judicial Primacy Retained: The NJAC preserved judicial primacy by having three of the six members from the judiciary, but it introduced checks and diverse inputs from the executive and civil society, which could have been more balanced to retain constitutionality.

• Democratic Mandate: The NJAC Act was approved by Parliament and 16 state assemblies, reflecting a democratic mandate for reform and broad public support.

• Global Comparisons: Countries like the UK and South Africa use mixed models involving input from the judiciary, executive, and civil society, which could provide a more balanced and inclusive approach.

Significance and Challenges of the NJAC

• • The NJAC system presented a more inclusive model for judicial appointments, but it also faced significant challenges, including concerns over judicial independence and politicization.

• Significance:

• • • Transparency & Accountability: The NJAC introduced a multi-stakeholder model, improving transparency and reducing opacity.
    • Public Trust: The wider representation of the executive and civil society was seen as increasing public confidence in the appointments process.
    • Checks on Nepotism: The NJAC system aimed to end the judges-only coterie, addressing concerns about favoritism within the collegium system.

• Challenges:

• • Judicial Independence: Critics argued that the inclusion of the executive violated the doctrine of separation of powers and undermined judicial independence.
  • Politicization Risk: There were concerns that the eminent persons in the NJAC could be politically influenced, compromising the system’s impartiality.
  • Lack of Operational Clarity: The NJAC lacked operational clarity, such as clear dispute-resolution mechanisms, making it difficult to implement effectively.

Significance and Challenges of the Collegium System

• Significance:

• • • Judicial Independence: The system ensures that judicial appointments remain independent of executive interference, safeguarding the judiciary’s autonomy.
    • Institutional Continuity: Judges understand the working of the courts better, ensuring competence in selecting new judges.
    • Stability: The system shields appointments from political fluctuations, maintaining consistency.

• Challenges:

• • Opaque Process: The lack of transparency in the collegium system, with no clear criteria for selection and no public records of decisions, undermines public trust.
  • Nepotism and Favoritism: The system is often criticized for fostering an elite, insular judiciary, with concerns about the nepotism and favoritism of judicial selections.
  • Vacancies and Delays: The collegium system has led to significant judicial vacancies, with 30% of High Court posts vacant as of 2024, creating backlogs.

Core Challenges Facing the Indian Judiciary

• Judicial Corruption and Ethical Deficit: While rare, there have been instances of judicial corruption, and the lack of a clear code of conduct for judges makes it difficult to ensure ethical behavior within the judiciary.

• Underrepresentation and Lack of Diversity: Women and marginalized communities remain underrepresented in India’s judiciary, with 12% women representation in the judiciary as of 2024.

• Insufficient Judicial Infrastructure: Many courts lack essential facilities such as Wi-Fi, digitization, and proper seating for judges, hindering their ability to function effectively.

• Lack of Transparency and Accountability: The collegium system lacks a formalized process for selection and appointment of judges, which often raises concerns of elitism and lack of accountability.

• Justice Delayed is Justice Denied: The judiciary faces a severe backlog of cases, with over 70,000 pending cases in the Supreme Court and over 4 crore cases in subordinate courts, exacerbated by inadequate judicial strength.

Way Forward

• Public and Parliamentary Oversight: Creating a Judicial Appointments Oversight Committee would help ensure the due process is followed in judicial appointments. Strengthening Parliamentary debate on judicial appointments will provide greater public accountability and encourage a broader discussion on the selection process.

• Transparency via Digitization: While live-streaming judicial appointments may not be feasible, the digitization of the process can increase transparency. Published recorded minutes of meetings, as well as reasoned decisions for judicial appointments, would ensure public confidence in the system.

• Establishing All India Judicial Services (AIJS): Experts have advocated for the creation of an All India Judicial Services (AIJS) to elevate the quality of judges in the lower judiciary. This proposal should be further explored and implemented after extensive consultation and consensus among all relevant stakeholders, ensuring a uniform standard of judicial competence across the country.

• Judicial Appointments Secretariat: As recommended by the Justice Venkatachaliah Commission, the establishment of a Judicial Appointments Secretariat would provide logistical and data support to the collegium system, streamlining the judicial appointments process and ensuring consistency and efficiency.

• Revisiting the NJAC Judgment: The NJAC judgment may be reconsidered by a larger Constitutional Bench, similar to the approach taken in the Second Judges case. Justice Kurian’s regret and various observations suggest that there is room for change, possibly incorporating the best aspects of the NJAC system while safeguarding judicial independence.

• Judicial Appointments Bill 2.0: A revised version of the Judicial Appointments Bill should aim to preserve judicial independence while improving transparency. This bill should incorporate clear criteria, establish fixed timelines, and ensure the maintenance of institutional records throughout the appointment process.

• Time-bound Clearance Mechanism: A time-bound clearance mechanism should be implemented, requiring decisions on judicial appointments to be made within three months by both the collegium and the executive. This would help reduce vacancies in the judiciary and prevent institutional standoffs, ensuring a timely and smooth appointment process.