Appointment of Judges

Appointment of Judges

Constitutional Mandate...

Current Practice in the Appointment of Judges

Even with a clear constitutional mandate, the process of appointing judges is nonetheless complicated in reality. The process of appointing judges has been the subject of much discussion, and as a result, real practice has changed. Although not required by the constitution, the nomination process at the Supreme Court and the High Court currently uses the collegium model, which was developed by the judiciary via case law. The Chief Justice of India confers with the four senior Supreme Court justices in accordance with the collegium model for the appointment of Supreme Court judges. The Union Minister of Law and Justice receives recommendations from the Chief Justice of India and forwards them to the Prime Minister. Next, the President will get advice from the Prime Minister. The Chief Justice of the High Court and the two senior justices make up the collegium for high courts. The State Governor and Chief Minister receive the Chief Justice’s recommendations, and they then forward them to the Union Minister of Law and Justice. The entire file is subsequently sent to the Chief Justice of India, who will propose a course of action to the Union Minister of Law and Justice after consulting with a collegium consisting of two Supreme Court judges. Subsequently, the Union Minister of Law and Justice presents the same case to the Prime Minister, who will counsel the President over the nomination. A judge’s seniority is a major factor in determining whether or not they are promoted to or appointed as Chief Justice. Seniority is a factor in the original appointment of judges from lesser judiciaries to high courts, but relative quality is a factor in the promotion of bar advocates. According to their rulings and cases, the collegium model evaluates the relative merits of the judges and advocates in the zone up for consideration for advancement....

Past Historical Debate on the Issue of Appointment of Judges

There has been a persistent battle between the administration and judiciary over the appointment of judges, and the appointment debate has frequently been associated with the judiciary’s independence. These issues were brought up as early as the 14 Law Commission Report, which was chaired by M.C. Setalvad, the first attorney general of India, in 1958. The Commission observed that, contrary to what the judiciary recommended, the administration appointed or rejected judges, leading to some fairly difficult circumstances. The research brought to light the fact that a number of appointments were made based on political, regional, communal, or other factors, which prevented the most qualified candidates from ever being selected. Thus, the Commission recommended enhancing the dialogue between the government and the judiciary. Later, the contemporary collegium system was developed in part because of a set of three court rulings collectively referred to as the Three Judges Cases. This evolution is the outcome of a turbulent procedure, but it currently sets the standard for judicial nominations. The Executive was granted precedence in the first judge’s case (1981), which also declared that the President may reject the CJI’s proposal if there are compelling grounds to do so. For the following twelve years, it bestowed on the Executive enormous authority over the nomination of judges. But in the second judge’s case (1993), this was changed. “The ruling stated that the Chief Justice of India has the final say when it comes to appointments to the Supreme Court and High Courts, and that an appointment must follow the Chief Justice’s final opinion.” The ruling also emphasized the importance of the Chief Justice conferring with other judges. Political influence was removed from the nomination process, and the executive component was minimized. The Supreme Court stressed the importance of “consultation” later in 1998 in a Presidential reference (1998 advisory judgment), holding that the nomination of judges to the Supreme Court and the High Courts is an “integrated participatory consultative process.” After consulting with a number of justices, the Chief Justice of India forms an opinion that is shaped by a group of senior judges....

Conclusion

The appointment of judges in India is a critical issue with profound implications for the health of the judiciary. A robust and fair selection process is essential to ensuring a competent and impartial judiciary, which is vital for a functioning democracy. The collegium system faces criticism for its lack of transparency. The selection process is shrouded in secrecy, raising concerns about potential biases and a lack of diversity in the judiciary. Finding a solution that incorporates the strengths of the existing system while addressing its shortcomings will be key to safeguarding the rule of law in India....

Appointment of Judges – FAQs

What is a bench?...