Author: Trisha Kashyap, DY Patil College of Law
Abstract
The modern status of judicial independence is pivotal to the survival of democracy through impartial justice and the rule of law. The entire evolution of the method of judicial appointments in India has been a contentious issue involving tussles over the proper balance of powers between executive and judicial institutions. The struggle between the collegium system and the National Judicial Appointments Commission (NJAC) embodies the quest for autonomy on the part of the judiciary. This article covers the historical background, the legal standing, and arguments in favor of judicial independence, including case laws, recent statements by the Supreme Court, and legislative developments.
To The Point
Post-independence, the judiciary was established as a reflection of independent rules and principles as set out by the Constitution of 1950. Emphasizing a separation itself from the tangled affairs of the state reports passed on to the judiciary for acting as the guardian of the Constitution and protector of fundamental rights. Articles 124 and 217 made provisions for the appointment of judges into the Supreme Court and to High Courts respectively. In the beginning, the President used to appoint judges in consultation with the Chief Justice of India (CJI). The term “consultation” however was vague and thus gave opportunity for discord in its interpretation.
Over time, the procedure for judicial appointments underwent changes. The famous case of “Judges’ Cases” renovated itself into the collegium, wherein the Chief Justice of India and the other senior judges were inducted into it to ensure that supremacy of the judicial tradition would prevail. Nevertheless, it has faced substantial criticism as being secretive and unaccountable. In 2014, in an effort toward a potential scheme, there was the NJAC consisting of both the judiciary and the executive. In 2015, however, the Supreme Court struck it down because it sought to undermine independence of the judiciary, which has been enshrined in the Constitution as a part of its basic structure.
At present, India has the collegium system for judicial appointments. The recommendation for the appointment of a Supreme Court judge is made by the five-member collegium, while a three-member collegium oversees the appointment of High Court judges. The recommendations collectively are then sent to the executive for confirmation. Delay in the clearance of these recommendations by the government has generated increasing tension between the judiciary and the executive, and also calls into question the efficiency and compliance with constitutional norms.
When it comes to appointments, the judiciary has consistently been against any political interference or political interference, promoting impartiality in the delivery of justice. Independence of the judiciary guarantees that judges can deliver judgments on cases without fear of political retribution or interference. For instance, the unavoidable hostility shown to Independence was expressed in the supersession of judges during the Emergency (1975-77). The Supreme Court firmly holds that such interference violates the rule of law and destroys people’s confidence in the judiciary.
An independent judiciary maintains checks on the executive and the legislative branches, ensuring the separation of powers and safeguarding democracy. In the absence of political influence, judges are supposed to maintain constitutional values, protect individual rights and do substantial justice fairly and equally. This elementary principle of independence of the judiciary remains crucial for maintaining the democratic ethos and institutional integrity of India.
Legal Jargon
The collegium system and its legal framework
The collegium system in India is a mechanism evolved through judicial interpretation for the appointment and transfer of judges in the higher judiciary. It operates without a constitutional basis; only the judgments of the Supreme Court (referring to the Second Judges’ Case in 1993 and the Third Judges’ Case in 1998) give this system its place in the political system remaining in India. The appointments of High Court judges and Supreme Court justices are “by recommendations from the Chief Justice of India and a collegium of senior-most judges,” while the executive is buffered from the decision-making process. The executive’s role is limited to recommending these appointments back for reconsideration or simply approving them; beyond that, in case the collegium comes to some conclusion upon those recommendations, that will be binding.
Historical Background of Judicial Appointments in India
The judicial appointment process in India has seen tremendous transformation and developments, ensuring judicial independence and emphasizing the separation of powers. Until the commencement of constitutional governance in 1950, judicial appointments were guided by Articles 124 and 217. The two guidelines were particularly related to appointments to the Supreme Court and High Courts, respectively. The process required the President to appoint judges by “consultation with” the Chief Justice of India (CJI) in the case of the Supreme Court and the Governor of the respective state and CJI of the High Court in the case of High Courts.
At this stage, the interpretation of the term “consultation” was significant. The constitution did not clearly articulate whether this consultation was to be mandatory or only advisory, hence, invited an executive discretion. In practical operation, throughout most of the first few decades, appointments of judges were practically left to executive discretion to a degree that generally reflected the political dynamics of the time. While this system worked without much ado initially, it left the groundwork for the conflicts that were to ensue in the future regarding judicial independence and executive encroachment.
The first major judicial examination of this process occurred in the First Judges’ Case (S.P. Gupta v. Union of India, 1981). The Supreme Court interpreted the term “consultation” appearing in Articles 124 and 217 as meaning something other than “concurrence.” This basically put the executive upper hand and reduced the judiciary’s role in appointments to the advisory role. The decision served to highlight the supremacy of the executive in the appointment process and actually reduced the judicial appointment legitimacy to a subordinate approach. While this decision was aimed at balancing the separation of powers among the branches of government, it nevertheless invoked fears about the erosion of judicial independence, particularly in cases where the executive might lean toward political consider rather than merit.
Few were unmoved by the decisional precedents established in the past. Discontent over the first Judges Case called for a decided re-evaluation of the appointment process; hence, the Second Judges Case (supreme Court Advocates-On-Record Association v. Union of India, 1993) sought a landmark rereading by which the primacy in judicial appointments will be given to the judiciary to sustain its independence. The court held that by the very wording of the consultation, such process should have more weight than previously enunciated and that the opinion of the CJI should outweigh any other consideration.
To give flesh to this principle, the collegium system was introduced by the court to guarantee independence of the judiciary from executive encroachment in these appointments. This entailed that the CJI shall make recommendations in consultation with the other two senior judges of the Supreme Court for appointment to the High Court or the other four senior-most judges of the Supreme Court for an appointment to the Supreme Court. It was a positive step towards strengthening judicial independence by curtailing executive predominance in appointments. The Second Judges Case opens the appanage of restoring the judiciary’s primacy which identified the institutional independence as vital for preserving constitutional values.
The Third Judges’ Case (In re Presidential Reference, 1998) made it yet clearer how the collegium system would work. In seeking to clarify the significance of the Second Judges’ Case, the President made specific queries to the Supreme Court through a Presidential Reference under Article 143 of the Constitution. The Court reiterated the principles laid down in the Second Judges Case but enlarged the way the collegium would be formed. The Court held that the collegium for the appointment of Supreme Court judges must consist of the Chief Justice and the four senior-most judges, whereas for the appointment of High Court judges, it is the Chief Justice and the two senior-most judges of the Supreme Court who will constitute the collegium.
The collegium system was becoming significant in changing the powers over judicial appointments in India. The desirability of that system, however, became contested. It invited several criticisms for its opacity, lack of accountability, and fostered the possibility of internal bias. Notwithstanding these allegations and counterattacks, the system retains the central position of being the judicial appointment model in India, indicating the judiciary’s commitment to preserving its independence against incursions by the political and executive branches.
The historical evolution of the various kinds of judicial appointments, from the dominance of the executive to the assertion of judicial primacy, speaks to India’s commitment to a democracy marked by the separation of powers and the independence of the judiciary. Such diffusion or allotment of power underlines the equilibrium provided in the interrelationship of the three kinds of government and assures that no one arm of power can utilize its force on an appointment of such importance.
Proof
For the independence of the judiciary, a fundamental tenet of democracy, judicial appointments have to be free from political interference. Such independence guarantees impartiality so that a judge may decide and apply the law free from any fear of punishment or influence from other executive and legislative functions. Such independence is vital in the exercise of the rule of law that assures and safeguards the values of the constitution and ensures protection against arbitrary state action by securing the fundamental rights of all citizens against any arbitrary action by the state. Political interference in judicial appointments greatly threatens that independence, as it inculcates biases, favoritism, and erosion of faith in the judiciary.
Historical instances, such as the supersession of judges during the Emergency (1975-77), highlight the dangers of executive overreach. Political meddling at that time compromised the integrity of the Post for Judicial office and instilled fears of bias. Such environments weaken the judiciary in discharging its constitutional responsibility as a balance against the other two apparatus, which is vital to the operational handling of the scheme of separation of powers. The collegium system, in spite of its limitations, has arisen in context with a response to these challenges to ensure the merit-oriented selection of candidates purely on the consideration of seniority and judicial caliber, devoid of political expediency.
Insulating the administration from politically vested interests simultaneously would enhance the judiciary’s powers for taking unpopular but indispensable decisions in the public interest. For instance, landmark judgments like Kesavananda Bharati v. State of Kerala (1973), which established the basic structure doctrine, and Maneka Gandhi v. Union of India (1978), which widened the horizon of the interpretation of fundamental rights, were possible only because of an independent judiciary. These judgments depict how the autonomy of the judiciary empowers it to insulate constitutional values and individual liberties. Otherwise, without independence in judicial appointments, such progressive verdicts might see their foundations eroded, putting at stake their very fabric of Indian democracy.
Case Laws
1. S.P. Gupta v. Union of India (1981) (First Judges’ Case)
Facts: This case arose when certain judicial appointments and transfers made by the executive were challenged on the grounds of transparency and adherence to constitutional principles. The primary contention was whether the executive’s decision to supersede senior judges in appointments was constitutionally valid.
Issue: Whether the term “consultation” in Articles 124 and 217 of the Constitution meant “concurrence” with the Chief Justice of India, or if the executive could have the final say in judicial appointments.
Verdict: The Supreme Court ruled that “consultation” did not mean “concurrence,” thereby granting primacy to the executive in judicial appointments. This judgment reduced the judiciary’s role to an advisory capacity in the appointment process.
2. Supreme Court Advocates-on-Record Association v. Union of India (1993) (Second Judges’ Case)
Facts: Dissatisfaction with the First Judges’ Case led to this landmark litigation, where the independence of the judiciary was once again at the forefront. The petitioners argued that judicial primacy in appointments was crucial to maintaining the judiciary’s autonomy.
Issue: Whether the executive should have primacy in judicial appointments or if the judiciary should have a greater role to ensure independence.
Verdict: The Supreme Court overruled the First Judges’ Case and held that judicial primacy in appointments was essential for safeguarding judicial independence. It established the collegium system, where the Chief Justice of India, along with senior judges, would recommend judicial appointments, limiting the executive’s role to mere approval or reconsideration.
3. Supreme Court Advocates-on-Record Association v. Union of India (2015) (NJAC Case)
Facts: The Constitution (99th Amendment) Act, 2014, introduced the National Judicial Appointments Commission (NJAC) to replace the collegium system. The NJAC included members of the executive, judiciary, and civil society, aiming to make the process more transparent and accountable. This amendment was challenged for violating the basic structure of the Constitution.
Issue: Whether the NJAC, which diluted judicial primacy by including the executive and other non-judicial members in the appointment process, was constitutionally valid.
Verdict: The Supreme Court struck down the NJAC and the 99th Amendment as unconstitutional, holding that judicial primacy in appointments is a part of the Constitution’s basic structure.
Conclusion
In conclusion, the question of appointments to the higher judiciary in India revolves around the careful balance between independence and accountability. The shift away from executive dominance to the collegium has meant an important change in favor of securing the independence of the judiciary, aimed at keeping its decisions ostensibly free from political influence. The collegium has received its share of criticism for being opaque and unaccountable, with debate raging ever since.
The way forward is to deal with these elements on a cooperative basis between the judiciary and the executive. Institutional mechanisms can be defined that maintain transparency without compromise to the independence of the judiciary, establishing, for example, timelines for when appointments should be completed, bench strength, checking of political influence, and enhancing transparency in collegium meetings, whereby there will be public faith in the process.
FAQS
Q1. What is the collegium system in India?
A: The collegium system, established through judicial interpretation, is a mechanism where senior judges recommend appointments and transfers in the higher judiciary, ensuring minimal executive interference.
Q2. What was the NJAC, and why was it struck down?
A: The NJAC was a commission proposed to include judiciary, executive, and civil society members in the appointment process. It was declared unconstitutional in 2015 for undermining judicial independence, violating the basic structure doctrine.
