Judicial Appointments in India

The Hindu dated 18.08.2012 contains an article called "Judicial appointments & disappointments" by V.R. Krishna Iyer. He is an eminent jurist and a former judge of the Supreme Court of India. In this article, he discusses the methodology adopted in the appointment of Supreme Court judges.

After the In re Presidential Reference Case and SCAORA and another v. UOI, the appointment of SC Judges is done by Collegium system. The CJI must consult a collegium of four senior-most judges of the Supreme Court. After consultation, the CJI can send a recommendation to the Government. The collegium's decision is to be based on consensus and unless the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be made. Thus, sole opinion of the CJI does not constitute the "consultation" process as laid down in these cases.

Also, under Article 124(2) of the Constitution of India, the President shall appoint every judge of the Supreme Court of India after "consultation" with such of the judges of the Supreme Court as the President may deem necessary for the purpose and in the case of appointment of a judge other than the CJI , the Chief Justice of India shall always be "consulted".

In the above mentioned cases, the Supreme Court has interpreted the words "consultation" and "consulted" in Article 124(2) to mean as binding on the Central Government.

Basically, this Collegium System has been introduced by the Supreme Court through its own judgements. This Collegium system does not have any kind of Constitutional or Legislative backing. Even the judgement in In Re Presidential Reference Case which brought this system was a narrow 5-4 decision (9 judges bench). Thus, the appointment process of the Apex body of the third pillar of our democracy i.e. Judiciary, rests on a narrow 5-4 judgement and suffers from the absence of any statutory or constitutional support.

Now, the government proposes to change the collegium system and substitute it with a commission. It is said that in order to replace this system, a constitutional amendment is needed and the members of this commission must be man of highest integrity and character.

V.R. Krishna Iyer says that:

"The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection or ill-will. It should act independently — such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justice of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process." 

All these opinions and suggestions look very perfect on the paper. But, the real thing is whether there is a commission or a collegium system, the fact will remain that the appointment will be based on the subjective discretion of the selected few members of the commission or the collegium. Although, the members of this commission will be holders of very high official posts and very learned people but this does not exonerate the fact that the appointment will still be based on subjective discretion and will lack the kind of objectivity it needs.

Arguments in favour of the Commission System:

1. The appointment of Judiciary will be free from the clutches of the Executive.

2. The selection process will not suffer from any kind of arbitrariness since very knowledgeable and experienced persons of high repute who are holders of high posts such CJI or PM will be making the selection.

3. The scrutiny process will be done very diligently and meticulously. Every minute detail relating to the candidate will be considered so that only men of highest integrity, character and knowledge are selected.

3. Minimum qualifications are already given in Article 123(3) of the Constitution of India. Hence, the filtering of candidates is also done.

According to them, these reasons are the basis of the appointment. But, does that make the process of appointment any better considering the fact that the appointment is still based on the subjective satisfaction of select individuals? The fact remains that few individuals will be deciding the fate of the Apex body of the Judiciary. Where is the element of accountability in this? Can such process be called as democratic? How can we say that the person appointed by this commission headed by Prime Minister or CJI will bring the best talent and men of highest character? Having a long, glamorous and illustrious career as a lawyer does not always imply honesty and merit.

I feel that when appointment is purely on the basis of some kind of a "consultation" process, it is bound to suffer from such infirmities. My suggestion is to have some kind of examination or an objective process where every aspect of the candidate can be quantified and assessed in the best possible manner.

We have exams conducted by UPSC every year. The candidates have to go through Preliminary Examination, Mains and Interview Examination. Such process, even though not 100% foolproof, provides some kind of quantifiable and objective data which could be made as the basis of the selection of the candidate. The room for subjective satisfaction and discretion is minimal in such kind of process.

Coming to our political system, our politicians have to face the elections in order to become the Elected Representatives. Whoever is elected by the majority becomes the MP or MLA. Again, in our Election process as well, there is some kind of quantifiable and objective data available which could be made as the basis of election of the candidate. The quantifiable and objective data in case of election is number of votes. However, to choose or not to choose a competent elected representative is the choice of the voters and I am not going into that debate.

Even the Lower Judiciary is selected by means of examinations and interviews. So, why the apex courts of this country, namely High Courts and the Supreme Court do not have any objective criterion of selecting its judges?

I feel that this question needs to be considered by our policy makers as well as the Higher Judiciary.