Freedom and independence of the judiciary have been taken to mean, (a) that both the institution of the judiciary and independent judges are separate and free from interference by the other branches of the government (executive and legislature), political parties, other powerful interests or individuals; and (b) that the individual judge or magistrate is independent and at liberty to make a decision without pressure, inducement or promise from any source whatsoever. An independent judiciary must not only be independent but also appear to be independent.
Article 124 vests the president with the power to appoint the chief justice of India (CJI) and judges to the Supreme Court. It is stipulated that the president shall appoint a judge of the Supreme Court after consultation with such of the judges of the Supreme Court and of the high courts as the president may deem necessary. The appointment of judges of the high courts is also made by the president. The president has to consult the CJI, the governor of the state and the chief justice of the high court.
The issue of the appointment and removal of judges was examined by the National Commission to Review the Working of the Constitution chaired by M.N. Venkatachaliah. The commission recommended the constitution of a national judicial commission, which would have the effective participation of both the executive and the judicial wings of the state “as an integrated scheme for the machinery for appointment of judges”
The government introduced the Constitution (98th Amendment) Bill in the Lok Sabha in 2003. This bill sought to create a national judicial commission (NJC) headed by the CJI with two judges of the Supreme Court next to the CJI in seniority, the Union minister for law and justice and one eminent citizen to be nominated by the president in consultation with the prime minister, as members.
The Second Administrative Reforms Commission is of the view that the appointment of judges to higher courts should be with the participation of the executive, legislature and the chief justice, and should be a bipartisan process above day-to-day politics. Therefore, the proposed NJC should comprise representatives of all three organs of the state — the legislature, the judiciary and the executive. Such a body can devise its own procedures in identifying and screening candidates for the higher judiciary.
If we consider the international practice for the appointment of judges to supreme courts in various countries like the UK, US, France or Germany, they are found to be appointed by political executives, senates or presidents of republics, or by elected bodies. It is only in our country that, with the system of the collegium, the class of judges appoint themselves.
Ruma Pal, a former Supreme Court judge, has said that the process by which …continued »