Judicial Appointments in India: Process, Reforms & Current Challenges

Introduction

• Judicial appointments in India have long been a contentious issue, further underscored by a recent report from the Department of Justice. 
• The report highlights that while 60 lakh cases remain pending in various High Courts, 30% of the judge positions in these courts are vacant. 
• This situation reflects the ongoing and drawn-out confrontation between the Government and the Judiciary over the procedural powers involved in the appointment of judges.

Constitutional Provisions for Judicial Appointments

• Article 124(2): Judges of the Supreme Court are appointed by the President after consultation with Judges of the Supreme Court and High Courts, with mandatory consultation with the Chief Justice of India (CJI) for appointments other than the CJI.
• Article 217: High Court Judges are appointed by the President in consultation with the CJI, the Governor of the State, and the Chief Justice of the respective High Court.

Evolution of Judicial Appointments

• Colonial Era: Judicial appointments were dominated by the executive, with little room for judicial independence.
• Constitutional Assembly Debates: The framers aimed to create a balanced system to ensure judicial independence while preventing executive overreach, leading to the inclusion of Articles 124(2) and 217.

Judicial Interventions and Collegium System

• First Judges Case (1981): The Supreme Court ruled that “consultation” with the CJI does not mean “concurrence,” giving more authority to the executive.
• Second Judges Case (1993): This case overturned the previous ruling, establishing that “consultation” means “concurrence,” and the CJI must act with the advice of a collegium of two senior-most judges.
• Third Judges Case (1998): The collegium was expanded to include the CJI and four senior-most judges, giving judiciary greater control over appointments.

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National Judicial Appointments Commission (NJAC) and Judicial Response

• 99th Constitutional Amendment Act (2014): The NJAC was created to replace the collegium system, involving members from the judiciary, executive, and civil society.
• Fourth Judges Case (2015): The Supreme Court declared the NJAC unconstitutional, reaffirming the collegium system, stating that NJAC violated judicial independence, a part of the basic structure of the Constitution.

Criticisms of the NJAC

Membership Issue:

• NJAC included two eminent persons with no required legal expertise, risking executive influence. Concerns arose when questions were raised about the appointment of these eminent persons, as the process could lead to individuals with political leanings being nominated.

Veto Power:

• The NJAC allowed any two of its six members to veto a judicial appointment, giving the executive significant leverage over the process. This could enable the executive to block appointments for political reasons, even when the majority of the commission, including the judiciary, supports a candidate. 

Ambiguity in Definitions:

• The NJAC required that the senior-most judge be appointed as the Chief Justice of India “if considered fit.” However, the term “fitness” was not defined, leaving it open to interpretation and manipulation. 

No Casting Vote:

• The lack of a casting vote for the CJI in a six-member NJAC could result in a deadlock, effectively stalling appointments. For instance, the elevation of Justice M.H. Beg over Justice H.R. Khanna, despite Khanna being senior, was seen as executive interference. 

Executive Overreach:

• The NJAC Act allowed Parliament to frame and nullify regulations governing judicial appointments, giving the executive an upper hand over the judiciary. The fear of executive overreach was highlighted during the tenure of Indira Gandhi, when judges like Justice A.N. Ray were controversially appointed as CJI over three senior judges after the Kesavananda Bharati case (1973), which limited Parliament’s amending power. 

Politicization of Judicial Appointments:

• Critics argued that by including the Union Law Minister as an ex-officio member and two eminent persons, NJAC could politicize the process of judicial appointments.  In the case of Justice P.D. Dinakaran, who faced allegations of corruption and impropriety, the government delayed action for a long time.

No Clear Accountability:

• While the NJAC was intended to bring transparency, it was criticized for not having a well-defined accountability mechanism for the decisions made by its members, particularly the executive appointees.  The controversial appointment of Justice Ashok Kumar in the Madras High Court raised concerns about judicial accountability. Justice Kumar’s appointment was questioned due to his proximity to political leaders. 

Fear of Judicial Insubordination:

• Another criticism was that the NJAC, by giving the executive a role in judicial appointments, could create a situation where judges might feel beholden to the government for their elevation, thereby compromising their ability to rule impartially in cases involving the government. The ADM Jabalpur v. Shivkant Shukla (1976) case, also known as the Habeas Corpus case, is a striking example where the majority of the Supreme Court ruled in favor of the government’s arbitrary detention powers during the Emergency. 

Conflict with the Basic Structure Doctrine:  

• The NJAC was seen as violating the Basic Structure Doctrine by impinging on judicial independence, which had been enshrined as a core part of India’s constitutional framework in the Kesavananda Bharati case. The Supreme Court struck down the NJAC in the Fourth Judges Case (2015) on the grounds that it violated the basic structure by undermining judicial independence. The bench, led by Justice J.S. Khehar, ruled that giving the executive a significant role in judicial appointments would weaken the judiciary’s ability to function as an independent pillar of democracy.

Perception of Bias and Nepotism:

• Critics feared that the NJAC’s composition, especially the appointment of two eminent persons, could lead to nepotism and favoritism. There have been allegations of nepotism in judicial appointments even under the collegium system, such as in the Justice Karnan case, where his appointment to the Calcutta High Court came under scrutiny for procedural irregularities. 

Benefits Of The Collegium System

Ensuring Judicial Independence:

• The collegium system prevents undue interference from the executive, ensuring that judicial appointments remain independent and free from political pressure.
  • • Example: In the case of S.P. Gupta v. Union of India (1981), also known as the First Judges Case, the court upheld the executive’s power in judicial appointments. 
    • This resulted in concerns about executive interference in appointments. The collegium system, later introduced by the Second and Third Judges cases, rectified this by giving primacy to the judiciary in appointments, thus preventing a repeat of such executive dominance.

Safeguarding Impartiality in Judgments:

• Since the government is a frequent litigant, a judiciary influenced by the executive could lead to biased rulings in its favor. The collegium system shields the judiciary from this influence, maintaining impartiality.
  • The 2G Spectrum Case (2012), which involved several high-ranking government officials, was adjudicated impartially by judges who were appointed through the collegium system. The decision resulted in the cancellation of 122 telecom licenses, showing that even in cases involving the government, the judiciary was capable of delivering an independent and unbiased verdict.

Expertise in Appointments:

• The collegium system leverages the judiciary’s insight into what qualifications are needed for judges, ensuring merit-based appointments.
  • •  The appointment of Justice U.U. Lalit to the Supreme Court, a former senior advocate with extensive expertise in criminal law, was facilitated by the collegium system. His legal acumen was evident in landmark cases such as Ayodhya Verdict (2019), where he played a key role in resolving one of India’s most contentious legal disputes.

Safeguarding Democracy:

• The collegium system helps safeguard democratic principles by ensuring that judges can act independently and uphold constitutional values without fear of retribution from the executive.
  • In Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalized Section 377 of the Indian Penal Code, which criminalized same-sex relations. The decision, made by judges appointed through the collegium system, was critical for upholding democratic values and protecting individual rights. 

Long-term Stability in Judicial Appointments:

• The collegium system provides continuity in judicial appointments by minimizing disruptions caused by frequent changes in government or political agendas. 
  • • The appointment of Justice D.Y. Chandrachud to the Supreme Court by the collegium ensured continuity in his judicial career. As a judge, he contributed to several landmark rulings, including the Sabarimala Temple case (2018). 

Reduces the Risk of Politicization:

• By removing executive control from the appointment process, the collegium system reduces the risk of appointments being politically motivated, ensuring that only judicial merit is considered.
  • • During the tenure of Justice Altamas Kabir, who was appointed via the collegium, the judiciary maintained its independence in several cases involving the executive. In the Coalgate scam case (2012) ,the Supreme Court canceled coal block allocations by the government. 

Promotes Judicial Diversity:

• The collegium system, by focusing on merit and qualifications, has been instrumental in promoting diversity within the judiciary, ensuring that judges from different regions, genders, and social backgrounds are appointed.
  • The collegium’s appointment of Justice Indu Malhotra directly from the bar in 2018, made her the first woman lawyer to be elevated to the Supreme Court. 

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Concerns With The Collegium System

No Constitutional Backing:

• The collegium system was established through judicial interpretations in the Second and Third Judges cases but is not explicitly enshrined in the Constitution. Article 124 of the Indian Constitution only mentions “consultation” with the Chief Justice of India for appointments, not “concurrence,” as later interpreted by the judiciary.

Opaque Procedures:

• The collegium system lacks formal procedures for the selection process, and decisions on appointments and rejections are not made public. There is no clear explanation of the criteria used for selecting or rejecting candidates, leaving the process shrouded in secrecy.
  • • In 2014, the collegium’s recommendation to elevate Justice Gopal Subramanium to the Supreme Court was withdrawn after the government raised objections, but no detailed reasons were provided to the public. 

Perception of Undemocratic Practices:

• The collegium system, where judges appoint judges, is often seen as undemocratic because it lacks external oversight from either the executive or the legislature. 
  • • In the 2018 controversy surrounding the appointment of Justice K.M. Joseph, the collegium had to reconsider its initial recommendation after the government sent it back, raising concerns about accountability. While the collegium later reiterated its recommendation, the process brought attention to the need for greater accountability and transparency in how such decisions are made.

Favoritism in Appointments:

• One of the major criticisms of the collegium system is the allegation that it has led to nepotism, where relatives and close associates of sitting judges are appointed to high judicial positions, giving rise to claims of “uncle judges” and favoritism.
  • • For instance, in the Delhi High Court, there have been allegations of nepotism, where relatives of judges were appointed to the judiciary, raising concerns about fairness and transparency in appointments.

Absence of Global Parallels:

• Unlike in most other democracies, where judicial appointments involve a mix of input from the executive, legislature, and judiciary, India’s collegium system gives the judiciary complete control over the process. Critics argue that this is an anomaly, and the lack of external input can lead to insularity and groupthink.

Global Practices in Judicial Appointments

• UK: Judicial appointments are made through commissions involving both judiciary and executive branches under the Constitutional Reform Act, 2005.
• South Africa: The Judicial Service Commission advises the President on judicial appointments, with representation from various government branches.
• France: Judges are appointed through a process involving the High Council of the Judiciary.

Way Forward

• Reforming NJAC: The NJAC could be revived with modifications to address its criticisms, such as removing the veto power and ensuring balanced representation.
• Finalize Memorandum of Procedure (MoP): The MoP should be finalized, ensuring clear guidelines on transparency, eligibility, and complaint mechanisms in judicial appointments.
• Increase Transparency: The collegium must disclose reasons for selections and rejections, bringing transparency to the process.
• All India Judicial Services (AIJS): Establishing AIJS could improve the quality of lower judiciary appointments through a merit-based selection system.
• Independent Secretariat: An independent secretariat for judicial appointments could maintain a comprehensive database of candidates and ensure timely appointments.