India must evolve a new system to appoint judges

The judiciary is one of the three pillars of a democratic form of government. In consonance with the principle of Separation of Power, the Constitution of India also sought to distribute the power among all the three branches of the government as no branch can be entrusted with unchecked, unbridled powers.

The will of the people, as reflected in the Constitution of India, lays down the norms for appointment of the judges of the High Courts and the Supreme Court in unambiguous terms. Under Articles 124 and 217, a consultation with the judiciary is required. However, through the interpretative process, the appointment of judges to the Constitutional courts stands in a very different scenario, and certainly not as the original text of the Constitution envisaged.

In the Second Judges’ case (1993), the Supreme Court recommended the formation of a collegium consisting of persons who are expected to have “knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment”. The court thought this requirement was crucial as this would help appoint the right kind of independent judges who would work for the deprived and exploited sections of the society. According to the court, this collegium would recommend to the President of India, the names of the candidates deemed appropriate for appointment as High Court or Supreme Court Judges.

However, such a system has its concerns as absolute power is not desirable in any branch of the State. Judges are often referred to as “autonomous moral agents, who can be relied on to carry out their public duties independent of venal or ideological considerations,” as John Ferejohn wrote in the book, Independent Judges, Dependent Judiciary: Explaining Judicial Independence. But judges, too, are human and they decide on matters of grave public interest. So it is only natural that they are vulnerable to personal, political, economic and class bias or prejudices. This is not to belittle the importance of judicial independence; but to raise concern over the leeway that is accorded to judges by a system which provides unchecked institutional independence to judges.

Justice Stephen Gageler of the High Court of Australia argues that diversity in consideration such as geography, gender and ethnicity should all “legitimately weigh in the balance” when appointing judges from a pool of potentially meritorious candidates. The Collegium system is unable to cater to this need of diversity in the judicial system.

With the Constitution (Ninety-Ninth Amendment) Act, 2014 and the NJAC Act, 2014, the collegium system was supposedly replaced by a National Judicial Appointment Commission. However, the Supreme Court struck it down as unconstitutional in the case of SCAORA versus Union of India (2016). Justice J Chelameswar struck a dissenting chord in the NJAC judgment, highlighting the crucial issue of eroding public trust, lack of accountability, and opaqueness in the functioning of the collegium itself. But there exists a wider perception that the present system of selection of judges is a fait accompli and, thus, leaves no option to the President but to concur in the recommendation of the collegium.

The time is ripe to seek a reference or clarification from the Supreme Court of India itself on the issue of the role of the President of India in appointment of judges in the higher judiciary.

Also, instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appointment in order of preference and other valid criteria.

The need of the hour is to revisit the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity. The new system should ensure independence, reflect diversity, demonstrate professional competence and integrity. The system needs to establish a body which is independent and objective in the selection process. Setting up a constitutional body accommodating the federal concept of diversity and independence of judiciary for appointment of judges to the higher judiciary can also be thought of as an alternate measure.

S Sivakumar is member, The Law Commission of India, and a law professor The views expressed are personal