APPOINTMENT OF JUDGES IN INDIA
Recently, Union Minister Upendra Kushwaha started a controversy on the appointment of judges in India by lashing out at the Collegium system for appointing judges. Also, he termed this system as “a bolt on democracy”. Questioning the system he said a child from a humble background can never become a judge. Furthermore, Union Minister questioning the system said it ignores the merit. Interestingly, in 2015 Supreme Court by a majority 4:1 struck down the alternative to collegium system, NJAC act.
In the light above incident, let us discuss the appointment of judges in India and try to understand the fury of Upendra Kushwaha.
Constitution on Appointment of Judges in India
Currenlty, Article 124(2) deals with the appointment of Judges of Supreme Court. It provides that judges are to appointed by President with the consultation of existing judges of Supreme Court and of the High Courts in the state. However, the article does not give the number of judges the President need to consult. Furthermore, it also lays down the compulsion to consult Chief Justice of India(CJI). Similarly, Article 217 (1) is the state counterpart for 124(2).
On the study of both the article, it seems the executive has the upper hand in the appointment of judges in India.
Procedure Followed for the Appointment of Judges in India
Procedure followed till 1981
Initially, CJI used to initiate the proposal in consultation with his senior colleagues. President consider the proposal and if agreed to, the appointment was made. However, the practice of seniority was not followed on two occasions in 1969( appointment of Justice A.N. Roy) and 1977( Appointment of Justice Beg). These exceptions, inter-alia, stirred up a new controversy which led to First Judges Case.
Procedure Followed till 1993
Appointment of A.N.Roy led to the resignation of Justice J.M. Shelat, Justice K.S. Hedge and Justice A.N.Grover. Similarly, senior most judge, Justice Khanna resigned on the appointment of Justice Beg. Later, this led to various petitions challenging the power of Central Government in the appointment and non-appointment of additional judges in High Courts. This was First Judge Case ( S.P. Gupta vs Union Of India[1] ). The court held that Chief Justice of India does not have the primacy in the appointment of Judges in India in Supreme Court and High Court.
Procedure Followed after 1993
Later in Supreme Court Advocates-on-Record Association v Union of India[2], the landmark second judges case, the Supreme Court introduced controversial Collegium System. It overturned the SP Gupta case and held that CJI has the primacy in the appointment of judges in India. The court held that word consultation should be construed as concurrence. Then In 1998, the court increased consulting strength from two to four in third judges case. Currently, collegium system is prevalent in the appointment of judges in India.
National Judicial Appointment Commission(NJAC) Act, 2014
Then by 99th amendment government introduced National Judicial Appointment Commission. The aim was to make appointments more transparent and shoring up the image of the high judiciary. The commission consists of 6 members – CJI, two most senior judges of Supreme Court, Union Minister of Law and Justice, two eminent persons( nominated by a committee of CJI, PM and Leader of Opposition). Afterwards, in the Landmark judgement of Supreme Court Advocates on Record Association vs Union of India[3], Supreme Court struck down 99th amendment and declared it constitutional and void. As a result, this restored collegium System.
Present Situation
After the second judge case, there was confusion on the roles of CJI and the two judges in the judicial appointment. In many cases, CJI took unilateral decisions without consulting the other two judges. Prashant Bhushan, an eminent lawyer, observed that ruling of the second judge did help in the autonomy of judiciary. However, the process of appointment of judges in India was still in secrecy. Moreover, it led to nepotism and arbitrary appointments. Currently, the collegium System does not prescribe any selection criteria. No such system has been devised for nomination or inviting applications.
Hence, this can explain why Upendra Kushwaha said tea staller can become a PM, fisherman’s son can become a scientist and the President but no one from the ordinary background can become a Judge in this present system.
Conclusion
Therefore, for the proper working of the democracy, both executive and judiciary need to work hand in hand. After the NJAC case, a better system needs to be devised for a better, transparent and reasonable system for appointment of judges in India.
Written By Ankit Raturi, University School of Law and Legal Studies
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[1] AIR 1982 SC 169
[2] AIR 1994 SC 268
[3] (2016) 5 SCC 1