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Thursday, December 7, 2023

“Under the Constitution, members of the judiciary do not appoint their own successors:” US Senator Ted Cruz

A recent comment about judicial appointments made in the US Senate (upper house of US Congress, i.e. federal legislature) carries an important message for our judiciary and establishment policy makers, who typically benchmark themselves against Western, and particularly American, standards.

Quoting from this article in Washington Examiner

“A ceremonial resolution honoring the late Supreme Court Justice Ruth Bader Ginsburg was pulled after Sen. Ted Cruz objected to language added by the chamber’s top Democrat about the liberal icon’s dying wish.

“All the kind words and lamentations about Justice Ginsburg from the Republican majority will be totally empty if those Republicans ignore her dying wish and instead replace her with someone who will tear down everything she built,” Senate Minority Leader Chuck Schumer said regarding the resolution.

Cruz objected to the inclusion of the wish, arguing that the Constitution states that justices do not get to appoint their successor.

“The Democratic leader wants to add a statement that Justice Ginsburg’s position should not be filled until a new president is installed, purportedly based on a comment Justice Ginsburg made to family members shortly before she passed,” the Texas Republican said. “That, of course, is not the standard. Under the Constitution, members of the judiciary do not appoint their own successors.”

Ginsburg died at the age of 87 on Friday due to complications with cancer. Her granddaughter told NPR that the justice’s “most fervent” wish is that she would not be replaced “until a new president is installed.”

That the judiciary does not have an exclusive right to appoint its own is a given in almost all countries, even the much-touted ‘liberal, democratic Western nations’ that are held up as torch-bearers of all that is good in the modern world; never mind the not so distant colonial histories of these nations and their continued crippling interventions in developing countries.

Still, as Sankrant Sanu puts it so well, “Nowhere in the democratic world does the judiciary appoint its own successors. Only in the farcical Indian “collegium” system where the judiciary has captured power on its own accord, and turned the Supreme Court into a hereditary autocracy. The people, and their representatives, are supreme in a democracy. Without the people having the power to change judges, and this power being held by a small exclusive elite unelected coterie, it is simply judicial dictatorship….Who gave judges the power to overrule the people without any checks on them? Yes, there is an elite which is deeply suspicious of democracy and prefer judges in the British lineage, lords with no accountability, but that is not called democracy.”

Actually, even the Indian Constitution does not have provision for the opaque, anomalous collegium system of judicial appointments – this unconstitutional system was introduced in 1993 after the ‘third judges case’ in a sort of judicial coup.

The modality of the appointment of judges to the higher judiciary is laid down in Article 124 (Supreme Court) and Article 217 (High Court) of the Constitution of India. Article 124(2) clearly states that the President (who acts in accordance with wishes of the elected Government) holds the final authority to appoint judges –

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.

The collegium system, which perpetuates judicial dynasties, has also been criticized by Supreme Court judges, including ex-CJIs. Clearly, Bharat’s judicial appointment system needs reform.

Yet, the NJAC (National Judicial Appointments Commission) Act passed by both houses of Parliament with two-third majority in August 2014, subsequently approved by 20 of the state legislatures and  assented by then President Pranab Mukherjee on 31 December 2014, was summarily struck down as ‘unconstitutional, void’ by the Supreme Court in 2015. Since then, the judiciary has been at loggerheads even over a Memorandum of Procedure (MoP) for collegium appointments proposed by the Union Government.

Will our judiciary, elites and policy makers at least pay heed to the words of Sen. Ted Cruz and the US Constitution, seeing as they value Western approval more than needs & aspirations of ordinary Bharatiya citizens?

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