Right Of Appointment


The government and the judiciary remain deadlocked over who has the ultimate power to appoint judges. The judiciary sees any government role as impinging on its independence; the government sees it as the ‘tyranny of the unelected’. BY VIRAG GUPTA

India, the biggest democracy in the world is witnessing a fight over an issue that is older than democracy itself: Power. The power to appoint judges has now become a battle that has been fought over decades, with limited peace between bouts. India as on date has around three crore pending cases, 2.18 crore of which are in District Courts, i.e. the first tier of the judiciary and the one affecting the maximum citizens. Out of these, 22.5 lakh cases have failed to be decided in the last 10 years. The High Courts (HC) have vacancies of about 470 judges, and the Supreme Court (SC) is working with three less than its maximum of 31 judges. Interestingly, no new person has been appointed as a judge to the HC or the SC in the last eight months.

In this atmosphere, the Chief Justice of India (CJI) has labelled the filling up of vacancies a national challenge and called unpolluted, speedy justice still a distant dream.

The impasse over appointment of judges is just not limited to the fight over assertiveness between the judiciary and the legislature. In the history of independent India, the fight between judiciary and legislature has happened so many times that both suspect each other of usurping the other’s powers. The mistrust between two constitutional organs has in turn affected the Executive leading to a dysfunctional democracy.

In order to understand the logjam facing the state of the judiciary, it will be useful to examine recent history. The SC on October 16 2015 declared the 99th Amendment to the Constitution and NJAC Act as unconstitutional. The 99th Amendment amongst other things had introduced Article 124 A, altered Article 217 of the Constitution and paved way for NJAC, a body that would have been entrusted with the task of selecting judges for appointment to the higher judiciary.

The Chief Justice of India (CJI) has labelled the filling up of vacancies a national challenge and called unpolluted, speedy justice still a distant dream

Noticeably, the presence of the Union Law Minister in the NJAC and reduction of power of the present judges in selecting future ones irked the apex court. However, NJAC by itself did not come out of the blue and its emergence was supported by the Law Commission’s 121st report that came out in 1987. Before this, the President appointed the judges to the higher judiciary, after consultations with the CJI.

It was in 1981 and during the era of strong single party government that the SC itself said the CJI’s recommendation to the President could be refused for “cogent reasons”. However, in 1993, simultaneous with the emergence of coalition governments resulting in a weak Centre, the SC overruled its earlier judgment, and interpreted the word “consultation” in such a manner to introduce the Collegium System, a feature that nowhere finds a mention in the Constitution.

In 1999, SC laid down guidelines in relation to the working of the Collegium, and since then until 2015, we as a country followed the Collegium System for appointment of judges, which the SC last year itself admitted to be opaque, non-transparent and the one requiring changes. Apart from allegations of non-equitable representation of different parts of the country on the Bench, no scheduled caste judge has made it to the SC in the last six years. There is only one lady judge in the Supreme Court and even as the Constitution does not provide any quota in the higher judiciary, a report claims around 52 per cent of the judges in the HC and SC to be wards of former judges. Despite these factors, more than 20 years after the Collegium came into being, the judiciary completely destroyed the idea of legislature having control over judicial appointments by saying that the same impinges upon the independence of judiciary, which the judiciary itself has held to be part of the basic structure of the Constitution, and hence non alterable.

Now, the arena has shifted to Memorandum of Procedure (MoP), a document that regulates the manner in which judges are appointed, and many believe the government through the MoP is again trying to wrestle control from the judiciary.

The Supreme Court, while delivering its judgment on the NJAC had sought suggestions for reforming the Collegium System. Words like perestroika and glasnost indicated that the SC indeed wanted a sincere reform and accordingly the Court received suggestions in around 11,000 pages from various sections of society. However, the government submitted to the Court that it has tried to reform the appointment process through NJAC, which was not acceptable to the Court and hence it should be the Court, which should study the suggestions and reform the Collegium. The SC ordered the government to make changes to the draft MoP as per criteria of transparency, accountability, secretariat and complaint handling mechanism against judges, and then submit it to the CJI for his approval.

Sensing the opportunity, the government sent its draft MoP to the CJI in March 2016 but the same was unacceptable to the CJI. Ever since then, the nation has been witnessing a tug of war over addition and removal of certain clauses in the draft MoP. The “national interest” clause first raised eyebrows of the CJI, and the clause incorporating the role of the Attorney General and States in appointments was seen as a backdoor entry of features of NJAC. The government refuted that it had any ego issues over appointment of judges, as it had simultaneously asked the Intelligence Bureau to carefully scrutinize applications, leading to a pile up in vacancies.

The judiciary then objected to a clause enabling a panel of retired judges to judge the applications of prospective ones, on questions relating to seniority and the requirement of recording their reasons in writing. While the battle over MoP continued, it emerged in July 2016 that the government and Supreme Court have even failed to settle upon the minutes of a meeting held in April 2016. The government has again sent a letter to the CJI on August 3, while the statements of the CJI on Independence Day show that the showdown between the government and judiciary is not yet over.

Amidst this, the suggestions sent by Indians interested in reforming the judicial system are being ignored. These invaluable suggestions truly reflect the “We the People” spirit of the Constitution, and hence ignoring them would be at our own peril. The suggestion of Mandatory Affidavit to appoint judges could be one method to ensure the independence of the judiciary while reforming the judicial system as per the parameters given by the SC itself. “Mandatory Disclosure Affidavit” is similar to affidavit submitted by politicians to the Election Commission and should be submitted by a person at the time of giving his preliminary acceptance for being appointed as a judge. The proposed affidavit, which may be in line with Art. 124, 217 and Oath under Schedule 3 of the Constitution, will ensure that after the appointment of a person as a HC judge has been made, but something in the affidavit is found to be incorrect, such a person can immediately be removed, without going into the process of impeachment. The Affidavit would also enable public participation as the Affidavit filed would be available to the public for two years, during which it can raise objections against the Judge, and the same could be investigated and checked. The Affidavit also takes away the possibility of any governmental interference, as it would amount to self-certification, and hence increasing the credibility, integrity as well as independence of the judiciary.

Moreover, a lesson can be learnt from other countries and their methods of appointing judges. In UK, it is the Judicial Appointments Commission consisting of 15 members including the Chairman that selects the judges for higher judiciary, except the Supreme Court. The JAC itself consists of 12 members selected through open competition and in addition to members from judiciary and legal profession, it has eminent persons from the public. The well-mechanized process ensures long but systematic steps such as status of vacancies, their advertisements, receipt of applications, requisite short-listing of candidates, decision of the panel, consultation with the authorities and background check, and finally submission of report to the Lord Chancellor.

The process also includes procedure for quality assurance containing reviews of candidates and their test results. With respect to the UK Supreme Court, a Commission consisting of representatives of JAC from the constituents of UK, i.e. England & Wales, Scotland and Northern Ireland, out of which at least one has to be a layman ensuring regional balance as well as public having a say in appointment of judges. The extensive mechanism also provides for consultation with various other authorities, including senior judges of the Supreme Court, Lord Chancellor and even the prime minister. However, importantly, the word “consultation” in UK does not mean “concurrence” as it does in India, ensuring that the appointments in our colonial masters remain smooth and uneventful.

It is often said, justice delayed is justice denied, and as is clear, the citizens of India are awaiting justice from those who take an oath to protect and uphold the Constitution. Better deliver on it soon

As per the constitution of the United States, appointment of Federal judges is an executive power vested in the President. Following the system of checks and balances envisaged by Montesquieu, the consent of the Senate is necessary for the confirmation of the appointments. As per research, out of 127 names recommended for judgeship in the Supreme Court of United States, the Senate has rejected 27. Interestingly, the judges in the US are appointed for lifetime, whereas they retire at the age of 65 in India. However, the experience of removing a judge after the appointment in both countries remains the same: In the US, one Supreme Court judge faced an impeachment motion that failed, while another resigned under the threat of impeachment. While in India, impeachment motion against one SC judge failed, two HC judges resigned under the threat of impeachment, thereby highlighting that checks and balances are better before the appointment.

Closer home, Pakistan can give a lesson to India on the matter of judicial appointments. The Judicial Commission of Pakistan formed in 2010 through the 18th Amendment in the Constitution of Pakistan, managed to withstand the scrutiny of its Supreme Court. Unlike the Indian NJAC, the Commission in Pakistan is headed by the Chief Justice of Pakistan and has four senior-most judges of the Supreme Court. It also has an ex-chief justice or ex-judge of the Supreme Court along with law minister, attorney general, and a senior advocate nominated by the Pakistan Bar Council. The extensive provisions for working of the Commission have ensured that the judicial appointments in Pakistan have been seamless and our neighbour has avoided a situation like ours. While it is true that no two appointing methods are replica of each other or even a ready-made solution for India, we can very well use the principles that other nations follow. Interestingly, the Attorney General in his submissions before SC in NJAC matter had made a reference to 15 countries and the system of judicial appointments therein. It was pointed out that apart from Pakistan and UK, Kenya and South Africa also have an appointment commission. Israel has an appointment committee while appointments council exist in France, Italy, Nigeria and Sri Lanka. The Governor General appoints judges in Australia and New Zealand while in Bangladesh the President has the power. The Germans have a multi-stage parliamentary process that in the end is confirmed by the President. However, SC negated these submissions by stating that the same were put in front of the Court in 1993, and hence do not merit a change in view.

In hindsight, it may well be recorded that the apex court missed an opportunity to evolve with the times and come on parity with other judicial systems in the world. Even otherwise, the Court had enough grounds to dismantle the law, which was passed with 2/3rd majority and later ratified by 20 states. The Bench of five judges ruled with four in favour that NJAC was not as per the Constitution as the “tyranny of the unelected” remark from senior functionaries in the Government highlighted its disappointment.

The Union Finance Minister stated in Parliament, “step by step, brick by brick, the edifice of India’s legislature is being destroyed,” while the judiciary retorted by saying that it only intervenes when executive fails in its constitutional duties. The issue of judicial appointments aside, mounting arrears, rising cost of litigation, recording of court proceedings, coverage of functioning of Courts under RTI, judicial activism, post-retirement benefit to judges, lack of infrastructure in courts and access to justice are just few other areas where the nation as a whole faces a challenge.

In this moment of acceptance of the stark reality, the judiciary has yet not given up on its dream of being able to appoint its own. The Constitution of India was made by “We the People” seeking to achieve justice at the foremost. Interestingly, Chief Justice of the United States, Charles Evans Hughes once said, “we are under a Constitution, but the Constitution is what the judges say it is.” As this statement is replayed in India, we should remember that it is bereft of the dignity and honour of constitutional organs to engage in an undeclared fight, as the nation suffers as a whole. No one has stopped anyone from making appointments in the lower judiciary.

The Chief Justice of India (CJI), with tears in his eyes, said the country needs 70,000 judges to clear the current backlog

The Chief Justice of India, with tears in his eyes, said that the country needs 70,000 judges to clear the backlog we currently face. One research estimates that India will have 15 crore pending cases by 2040 while another states that it will take 320 years to clear the pending cases. Yet another report states that India could get rid of all pending cases in ten years with the exception of Bihar, Gujarat, Jharkhand, Maharashtra, West Bengal and Jammu & Kashmir, as they will never be able to clear their docket at their current pace.

The government’s dream of Digital India, Make in India will be shattered in the absence of an accessible, quick and effective dispute resolution process. On the other hand, the judiciary may well be rendered useless if the litigants get no justice from courts. As is often said, justice delayed is justice denied, and as is clear, the citizens of India are awaiting justice from the persons who take an oath to protect and uphold the Constitution. Better deliver it soon.


  • The government and the judiciary continue to be at loggerheads on the issue of reform, transparency and accountability
  • The judiciary sees any government move in this direction as impinging on its independence
  • The government for its part, sees judicial obduracy as an example of the ‘tyranny of the unelected’
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