How we decide the vexed issue of the method of selection of judges of the Supreme Court and the high courts would determine the future of our democracy and the rule of law in the country. We are faced with the twin problem of selecting the best judges and also ensuring that the judiciary would be insulated from executive interference.
The attempt to undermine the independence of the judiciary originated in 1973 after the landmark Kesavananda Bharati judgment of the Supreme Court. Indira Gandhi decided that only those judges who are committed to the ideology of the government should be appointed. At that time, judges were appointed by the government in “consultation” with the Chief Justice of India (CJI) as provided by the Constitution. The government then said that it was not bound by the advice of the CJI. Successive Congress governments thereafter appointed judges who had proximity to the government. The saying, that in order to become a judge, it was not important to know the law, but more important to know the law minister, became the prevailing wisdom. The subversion of the independence of the judiciary by the appointment of convenient judges became a major issue, especially with increasing corruption within the executive.
Finally, in 1993, the system prevailing at that time was reversed and the judiciary wrested the control in the matter of judicial appointments from the executive. The words “in consultation with the chief justice” were interpreted to mean, “with the concurrence of the chief justice”. The meaning of “chief justice” was interpreted as a collegium of the CJI plus two senior judges of the court. A new elaborate procedure was laid out by the court for the appointment of judges, in which the role of the government was reduced to returning a name recommended by the collegium for reconsideration. If the collegium reiterated its recommendation, the president would have no option but to go through with the appointment. High court appointments would also go through a similar procedure, except that the recommendations there would originate from the collegium of the high courts.
In 1998, the Supreme Court further tweaked its judgment of 1993 in a Presidential Reference on this issue. The collegium was widened from three to five judges. Consultation with other judges in the court, who came from the same high court as the proposed nominee, was also provided. But the control over the appointments continued to vest with the judiciary.
This system of appointment of judges by the judiciary did lead to the depoliticisation of the judiciary to a large extent and did substantially improve its independence. But the process of appointments was still shrouded in secrecy and keeping the control over appointments with sitting judges, who had little time from their judicial work, coupled with the lack of transparency in such appointments led to nepotism and arbitrary appointments. No criterion continued…