Introduction
The practice of policymaking involves answering big questions. One such question is how the process of selection and appointment of judges to our constitutional courts is to be done. Our framers didn’t leave this question open at the time of adoption of the Constitution. However, as our jurisprudence grew around the doctrine of independence of the judiciary and our appointment system got politicised, the Hon’ble Supreme Court under a series of cases (namely, First Judges Case (1982), Second Judges Case (1993), Third Judges Case (1998)) established the Collegium System.
Overview of the Collegium System
In this system, senior judges hold collegium meetings to deliberate on matters of appointments and transfer of judges and, to its effect, send names to the executive for approval. Once the executive is satisfied with the pick—after undergoing a thorough vetting process by our intelligence agencies—the formal approval is made.
Criticisms of the Collegium System
- Lack of transparency in the manner the meetings are conducted
- Loss of diversity in judicial selections
- Prevalence of family lineage in appointments (nepotism)
The current collegium system has been under heavy criticism by jurists and practitioners alike since its inception for the above reasons.
Need for Reform in the Appointment Process
I would argue that the current system is in some ways better than its predecessor, but the fear of nepotism and the fact that an iron curtain separates the members of the collegium from the purview of the stakeholders is strong evidence of the need to change the appointment process.
The obvious question now is what the future judge’s appointment process may look like.
Risks of Political and Public Influence
- If the power to appoint judges is given to the legislature or executive, it risks judges showing complaisance to such branches.
- If given to the people, judges may come under unseemly pressure to accommodate majority opinion while delivering judgments.
Global Models and Comparative Analysis
Even though everyone agrees that change is necessary, there is hardly any consensus on how such a selection commission should be constituted. Examining models in the United States (US) and the United Kingdom (UK) can provide valuable insight.
The US Model
The American system of appointment by the President in concurrence with the Senate has failed in its objective and has made the federal judiciary divided along party lines. Hence, the involvement of the executive and legislature can make the system political.
Importance of Judicial Independence
The judiciary has neither the power of the sword nor the purse; thus, it must be armed with requisite defenses to protect itself from interference by either of the branches or risk justice getting hijacked by political considerations.
The independence of the judiciary is the strongest sentinel protecting our justice dispensation system.
As the largest democracy, we hold the doctrine of the rule of law close to our hearts. There can be no ‘rule’ of law if our rule-applying body adheres to the whims of man rather than the law.
The UK Model
The objective of safeguarding judicial independence seems to be best served in the UK through its system of an independent body consisting of:
- Senior judges
- Executive-appointed bar members
- Common citizens
These members make appointments through a process that prioritizes merit and experience. India stands to learn from such a system.
References
| Reference | Details |
|---|---|
| [1] | The necessity of judicial independence to prevent political interference and preserve justice. |
| [2] | UK model of judicial appointments emphasizing merit, experience, and inclusivity. |
End Notes:
- Hamilton, A., Madison, J., & Jay, J. (2009). Federalist No. 78. In The Federalist Papers (pp. 235–240). Palgrave Macmillan US.
- Judicial appointments (2022) Courts and Tribunals Judiciary. Available at:
https://www.judiciary.uk/about-the-judiciary/our-justice-system/jud-acc-ind/j ud-appts/#:~:text=All%20appointments%20are%20made%20by,available%20f or%20selection%20for%20appointments%E2%80%9D.(Accessed: 08 December 2024). https://www.brennancenter.org/our-work/policy-solutions/supreme-court-ter m-limits
