Criteria for the courts: on the
appointment of judges
Mains Paper 1: Polity
Prelims level: Judiciary
Mains level: Appointment to various Constitutional posts, powers, functions and
responsibilities of various
- In 1973, at the acme of Prime Minister Indira Gandhi’s move
towards securing a “committed judiciary”, the then Minister of Steel and
Mines, S. Mohan Kumaramangalam, offered a spirited defence of the
- In speeches made both in Parliament and outside, and through a
number of writings, Kumaramangalam asserted the virtues of what he thought
was a legitimate policy.
Made to measure?
- To a casual observer, Kumaramangalam’s words might have sounded
rational, but veiled behind them were the government’s rather more
- The policy was really an effort at creating a judiciary that would
be “made to measure”, that would bend to accommodate the government’s whims
- The policy of the time appears baleful to constitutional
democracy, Kumaramangalam’s defence of the programme broods over the process
followed in making appointments to the higher judiciary.
- Contrary to what some might believe, engaging with a judge’s
outlook to the Constitution isn’t necessarily inimical to judicial autonomy.
- Kumaramangalam’s motives may have been ill-founded, but he was
hardly at fault in arguing that the Constitution represented not merely a
document of rules but also a certain tradition, and that the method involved
in appointing judges to the higher judiciary is as much a part of that
tradition as any other constitutional process might be.
- It is important, no doubt, to resist the particular brand of
commitment that Kumaramangalam was after.
- But there is at least a kernel of cogency in his argument that we
cannot afford to ignore.
Why knowledge of judges background is essential?
- Judicial review gains its legitimacy from the Constitution.
- Given that judges are unelected officials, won’t its continuing
legitimacy be at stake if we deem it undemocratic to so much as wonder what
the constitutional philosophy of a nominee might be?
- As things stand, the procedure adopted in appointing judges is
seen as entirely divorced from the ordinary constraints of a democracy.
- This wasn’t quite how the Constituent Assembly saw things.
- The framers believed that the judiciary was integral to the social
revolution that the Constitution was meant to usher in.
What are the Constitutional provisions?
- The Constitution comprises a number of special clauses. It
provides for, among other things, a fixed tenure for judges of the Supreme
Court and the High Courts.
- It ensures that salaries and allowances of judges are charged
directly to the Consolidated Fund of India; confers powers on the courts to
punish for contempt of themselves.
- It ensures that judges can only be removed through a process of
- These provisions aim to ensure that the judiciary remains
ensconced from governmental interference, the framers always believed that
the power to appoint judges must vest with the executive.
Role of executive
- Accordingly, the Constitution provides, in broad terms, that
judges to the Supreme Court would be appointed by the President in
consultation with the Chief Justice of India (CJI) and such other judges
that he deems fit.
- A series of rulings the Supreme Court replaced the consultative
method prescribed by the Constitution with one that gave the CJI and his
four senior-most colleagues (the “Collegium”) primacy in selecting
- Efforts to replace it with a National Judicial Appointments
Commission (NJAC) came up a cropper after the court struck down the 99th
- The primacy enjoyed by the collegium in making appointments to the
higher judiciary, the court declared, was a part of the Constitution’s basic
Between the lines
- Extraordinary as these findings were, the court nonetheless
promised to look into the prevailing system and reform it from within.
- Three years later, we’ve seen little in the way of tangible
- The problems inherent in the present system are evident even from
a bare reading of the collegium’s decision, published on October 30, 2018,
endorsing the new designees to the Supreme Court: “While recommending the
name of Mr. Justices Hemant Gupta, R. Subhash Reddy, Mukeshkumar Rasikbhai
Shah, and Ajay Rastogi.
- The Collegium has taken into consideration combined seniority on
all-India basis of Chief Justices and senior puisne Judges of High Courts,
apart from their merit and integrity.
- The Collegium has also kept in mind, while recommending the above
names, that the High Courts of Punjab & Haryana, Gujarat and Rajasthan have
remained unrepresented in the Supreme Court since long.”
- Therefore, it was really only concerns over the relative seniority
of these judges and the extent of State-wise representation that kindled the
- The report does state the candidates’ merit was also considered.
But given that the criteria for selection is entirely unknown, what merit
means remains ambiguous, at best.
- In any event, the general constitutional values of a nominee have
never been seen as a benchmark to review merit.
- Such discussions, on the other hand, are seen as anathema to
judicial integrity, as a yardstick that ought to be extraneous to any
- The NJAC may well have been hastily pushed through but if the
publication of the collegium’s decisions has shown us anything, it is this:
that the collegium’s workings are mysterious and undemocratic.
- It clears some recommendations with alacrity, while holding back,
often for months on end, others comprising nominees that it deems
- What we need today is a more sustained discussion on the nature
and workings of a body that can potentially replace the collegium.
- Such a body must be independent from the executive, but, at the
same time, must be subject to greater transparency and accountability.
- This commission must also partake within it a facility for its
members to have forthright discussions over the constitutional philosophies
that a judge must possess.
- If we fail to bring these issues to the forefront, the rigours of
democracy will never permeate into the judiciary, and we will only be
further undermining public trust in the credibility of judicial review.
Q.1) The Indian Constitution has ensured the independence of the judiciary
through a number of measures.
Which of the following measures are found in the Indian Constitution?
1. The Parliament is not involved in the process of appointment of judges
2. The judges hold office during the pleasure of the President
3. The judiciary is financially dependent on the legislature
4. The judiciary has the power to penalise those who are found guilty of
contempt of court.
Select the correct code
a) 1, 3 and 4
b) 2 and 3 Only
c) 1 and 4 Only
d) 4 Only
Q.1) Should we dismiss all claims for democratic accountability in the
appointment process by harking back to the dark days of the Emergency?