In the wake of recent controversies, the issue of judges’ appointments has resurfaced. Until 1993, the executive had a role in the appointment of judges in India. In fact, since the inception of the system of judicial appointments, it has always remained a prerogative of the sovereign ruler.
In ancient India, kings used to appoint judges (adhikitas) after consulting their social mentors (rishis). The British, after introducing the present judicial system in India, chose judges on the basis of advice from the chief justice of the respective high courts, who were invariably British by birth. During this period, not a single Indian was ever made a chief justice. Thus, British rulers ensured the judiciary remained loyal to the crown.
The present collegium system was introduced following the 1993 second judges’ case and the advisory opinion rendered by a nine-judge bench (decided seven to two) of the Supreme Court in 1998. The Supreme Court effectively “amended” the Constitution through judicial process, as it read “concurrence” into the term “consultation” as laid out in Article 124. The presidential reference to the Supreme Court was meant to review the second judges’ case, but the court refused to do so expressly and went on instead to strengthen judicial “concurrence” by increasing the number from three judges to five.
It failed to bring about much-needed reform by substituting the collegium with a more responsible, transparent and accountable system. The advisory opinion simply shuffled persons/ authorities to fructify individual ambitions and choices. There is now a great opportunity for the legislature to take a comprehensive view and introduce a system that is not only transparent but also ensures quality.
The National Judicial Appointments Commission (JAC) Bill has been passed by the Lok Sabha. Many experts, including Law Commission Chairman A.P. Shah and Press Council of India head Markandey Katju, have advanced their suggestions and innovative arguments on the failure of the current collegium system: ironically, they are the product of that very failed system. Interestingly, they are for the supremacy of judiciary and want a majority say for judges. At the same time, the unusual strength of the present executive has given rise to apprehensions regarding its intervention in judges’ appointments.
Other than Japan, perhaps only in India do judges appoint judges. The present system of appointment suffers from many infirmities. There is neither any scope for scrutiny nor transparency. This method of appointments also does not address the diversity in Indian society. Moreover, it leads to the appointment of judges who hold similar views and have the same broad orientation. It is also prone to encourage nepotism in the judicial system. The need of the hour is to strike a balance between the continued…