Judges Appointing Judges

But man, proud man, Dressed in a little brief authority…Plays such fantastic tricks before high heaven, As make the angel weep. 

                                                          - William Shakespeare’s Measure for Measure, Act II Scene 2

No democracy can flourish without an independent judicial system, a system free from fear or favour, or ill will, a system isolated from the other branches of government. It enhances the prosperity and stability of the social order.

Art. 124 of the Constitution of India says that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand & seal after consultation with such of the judges of the Supreme Court & of the High Courts in the States as President may deem fit necessary for the purpose.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Art. 217 says that every Judge of a High Court shall be appointed by the President by warrant under his hand & seal after consultation with the CJI, the governor of the State, and, in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

These are the original provisions inculcated by the founding fathers in the Constitution. But, as we have seen changes which have taken place to the system one after the other are quite evident & are as follows;

In S.P. Gupta v. U.O.I. (1st Judges Case) the S.C. went ahead to make the government the final arbiter on appointments to the higher judiciary. The courts’ ultimate verdict, however, ran contrary to constitutional convention [Fali Nariman, Before Memory Fades, p.390]. It relegated the CJI to the position of an advisor and gave the substantial control over the judicial appointments process to the executive. Sadly, but knowingly, the Supreme Court compromised on its own independence. Although it ‘developed the law in the right direction.’[H.M. Seervai, Constitutional Law of India, 3rd ed. (Bombay N.M. Tripathi, 1984), p.2179].

In, S.C.O.R.A. v. U.O.I. (2nd Judges Case) the court emphasised that, under the Constitution, judicial appointments should be ‘integrated, participatory and consultative’. What the judgement effectively did was transfer the power of ‘primacy’ from the executive to the judiciary. So, when the government and the CJI or CJ of High Court conflicted over a particular judicial appointment, the Supreme Court held that the latter’s opinion would prevail. This also led to the birth of “Collegium System.”

In, Re: Under Article 143(1) of the Constitution of India (Third Judges Case) the court emphasised that judicial appointments would have to take place in accordance with the principles enunciated in its decision in the Second Judges Case, the only revision it made was that for the appointment of judges to the Supreme Court, the collegium would consist of the CJI and four (as against two) senior-most colleagues.

Then came the 99th Amendment Act, 2014, S.3 (w.e.f. 13-4-2015) & the NJAC Act& by the virtue of that Arts. 124-A, 124-B & 124-C were added to the Constitution for the appointment of the judges to the higher judiciary, where the Parliament of this country in one way or the other tried to arrogate the power of appointing judges to them. As a matter of fact it was challenged before the Supreme Court in S.C.O.R.A. v. U.O.I. (Fourth Judges Case) where the Supreme Court struck down the 99th Constitutional Amendment Act & the NJAC Act, stating it “unconstitutional & void.”

These are the major developments that has taken place in the process of appointment of the judges to the higher judiciary.

Judges appointing Judges:

Firstly, If we examine carefully, its not exclusively the Judges who appoint judges. It is done in consultation with the Executive even at present & its the President till today who appoint the Judges by warrant under his hand & seal. So it would be completely wrong to say that there is no role of executive in appointing the judges rather its on the contrary as they play a major role.

Secondly, if we analyse the situation of appointment to the various authorities in our country it is a well established fact that it is the people from the same profession who appoint people to their profession. For instance, its bureaucrats who appoint bureaucrats, its military who appoint personnel for military, its doctors who appoint doctors, its academicians who appoint academicians. And when it comes to judges, if the judges appoint judges, why to make so much of hue & cry? Judges of the higher judiciary play a major role in any healthy democracy. There independence is not just fundamental, but it is also a part of the basic structure as defined under Art. 50 of the Constitution & as interpreted in S.P. Gupta Case. The Constitutional authorities which is as high as the Judges of the High Courts & Supreme Court, Should the power of appointment be not vested with the judges themselves, as they are in the best position to know who is the best man for the job as they hear wide variety of lawyers on a day to day basis.

Thirdly, there is another question which comes to ones’ mind while talking about the Collegium, that it is opaque. That is the valid question & as a matter of fact even the Judges recognises that & recognised the same in the Fourth Judges Case & asked the opinion of the people at large to solve this problem. Recently Chelameshwar J. refused to participate in the proceedings of the collegium for the reason that it lacks transparency. But now that problem also seems to be resolving with the Apex Court collegium, has reportedly started the circulation method for appointing Judges,accepting the suggestion put forth by Justice J. Chelameswar, who had refused to attend collegium meetings unless greater transparency by recording decisions was ensured. The method would now require the collegium members to record their reasons in writing for approving or rejecting a recommendation.

Mohit Sharma is a Lawyer practising in the Trial Courts & the High Court of Himachal Pradesh, Shimla.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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