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Saturday, January 22, 2022

Dear CJI, Bharat is the only country in the world where judges are selecting judges!

CJI Ramana recently opined that judges appointing judges was a widely propagated ‘myth’ while adding that others were involved in the process. He was speaking at the 5th Late Shri Lavu Venkateswarlu Endowment Lecture at Siddhartha Law College in Vijayawada.

CJI on appointment of judges

“It is nowadays fashionable to reiterate phrases like ‘judges are themselves appointing judges’. I consider this to be one of the widely propagated myths. The fact is that the judiciary is merely one of the many players involved in the process. Many authorities are involved, including the Union Law Ministry, state governments, Governors, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate. I am sad to note that the well-informed also propagate the aforesaid notion as these narratives suit certain sections”, The Indian Express quotes the CJI as saying.

Shouldn’t the country’s topmost judicial authority be more responsible and accountable? What we see instead is an opaque judiciary that suffers from a heavy colonial hangover. It is time to remind the CJI that a bench of the apex court had struck down the National Judicial Appointments Commission in October 2015 thereby not just denying the Government a say in judicial appointments but also essentially reviving the collegium system.

Arun Jaitley on judicial appointments

In the 2015 winter session, then Finance Minister Late Arun Jaitley speaking in the Rajya Sabha had highlighted that though independence of the judiciary was essential, the constitution didn’t give the apex court judges the right to appoint their peers while adding that the appointment process needs to be consultative. He pointed out several errors made by the apex court while striking down NJAC enacted by the parliament.

Analyzing the NJAC judgment, Jaitley writes:

The judgement ignores the fact that there are several other features of the Constitution which comprise the basic structure. The most important basic structure of the Indian Constitution is Parliamentary democracy. The next important basic structure of the Indian Constitution is an elected Government which represents the will of the sovereign…

…The majority opinion was understandably concerned with one basic structure – independence of judiciary – but to rubbish all other basic structures by referring to them as “politicians” and passing the judgement on a rationale that India’s democracy has to be saved from its elected representatives. The judgement has upheld the primacy of one basic structure – independence of judiciary – but diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected Government, the Council of Ministers, an elected Prime Minister and the elected Leader of the Opposition. 

In his blog, Jaitley has also pointed out how Articles 124 and 217 of the Constitution dealing with the appointment of Supreme Court (SC) and High Court (HC) judges have over time been interpreted to mean the very opposite of what the Constitution originally provided for. In doing so, the President’s primacy was replaced by the primacy of the Chief Justice or the Collegium.

History of collegium system

The collegium system is one in which a forum, comprising the CJI and four seniormost judges of the SC, decides the appointments and transfers of judges. Interestingly, this system has no constitutional sanction and evolved from a series of judgements known as the Three Judges Cases.

The collegium system with judiciary gaining primacy over the executive was ushered in by the October 6, 1993 nine-judge bench judgment in the Supreme Court Advocates-on Record Association vs Union of India case. The verdict written by Justice JS Verma held that the CJI should be given primacy in appointments because since it was a topic within the judicial family, the executive cannot have an equal say in the matter.

However, there was dissent within the bench with regard to the individual role of the CJI leading to confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues and the President’s role was reduced to one of approver.

This confusion lasted till 1998 when the apex court laid down nine guidelines for the functioning of the forum for appointments/transfers which became the present form of the collegium. Additionally, Justice SP Bharucha’s judgment dated October 28, 1998 reinforced the primacy of the judiciary over the executive. The guidelines issued by the SC makes no mention of anyone outside the judiciary unlike what CJI Ramana suggested in his speech.

In contrast to the collegium system comprising only members of the judiciary, the NJAC was to be comprise of the Chief Justice of India as chairperson, two seniormost SC judges, Union law minister, and two eminent citizens, the last two nominated by a panel comprising the Prime Minister, CJI and leader of opposition.

In striking this down, the judiciary sent the message that it doesn’t want to be accountable and continue to be opaque. That the collegium system has been criticized by Justice Chelameswar who received support from three former CJIs. Justice Chelameswar said the collegium headed by CJI is “most opaque”, and the “majority gangs up” to shoot down genuine objections against undesirable candidates being chosen to be judges of higher courts.

Appointment of judges in other countries

Let us take a quick look at how judges are appointed in other countries:

US: Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate.

France: They are appointed by the President of the Republic. A judicial service commission makes proposals and provides advice. 

Belgium: They are appointed by the Crown (the King and his ministers) for an indefinite period until retirement.

Japan: The justices are appointed by the Cabinet (the chief justice by the emperor upon designation by the Cabinet).

Sri Lanka: The Chief Justice and Justices of the Supreme Court and Court of Appeal are appointed by the President of Sri Lanka with the nomination of the Parliamentary Council. Judges of the High Court are appointed by the President on the advice of the Judicial Service Commission.

As is evident nowhere in the world are judicial appointments made by the judiciary itself except Bharat unlike what CJI Ramana wants us to believe.

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Maitri
A opinionated girl-next-door with an attitude. I'm certainly not afraid to call myself 'a proud Hindu' and am positively politically incorrect. A Bharatiya at heart who loves reading, music, sports and nature. Travelling and writing are my passions.

1 COMMENT

  1. Preaching rather than introspection has become the passion of highly placed to a low level social media operator.self & the gang cannot do any wrong has become a compulsive result

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