Judicial Appointments Conundrum Pre-NJAC Verdict
An IJS is an idea whose time has come
From UPSC perspective, the following things are important :
Mains level: Issues related to the judiciary;
Why in the News?
Social media has been flooded with memes, and one of the most popular ones says, “For the first time, a fire brigade has started more fires than it put out.” The truth is, the fire is still burning. This perfectly reflects the ongoing controversy surrounding the Delhi High Court judge and the half-burnt currency notes case.
What key issues arise from the Delhi High Court Judge controversy over half-burnt currency notes?
- Allegations of Corruption in the Judiciary: The discovery of half-burnt currency notes at a judge’s residence raises suspicions of financial misconduct and corruption within the judiciary. Example: The Justice P.D. Dinakaran case, where allegations of land grabbing and corruption led to his resignation before impeachment proceedings.
- Lack of Immediate Legal Action and Accountability: Unlike other public officials who face direct investigations, the judge in question was merely repatriated to his parent High Court, reflecting a selective approach to judicial accountability. Example: Justice Soumitra Sen of Calcutta High Court was impeached for financial misconduct, but only after prolonged proceedings, highlighting delays in judicial accountability.
- Opacity in Internal Inquiry Mechanisms: The judiciary relies on internal probes rather than independent investigations, raising concerns about transparency and impartiality in handling misconduct. Example: The former CJI Ranjan Gogoi sexual harassment case, where an internal Supreme Court panel cleared him without an external review, leading to public outcry.
Why has the Collegium system of judicial appointments in India faced criticism over the years?
- Lack of Transparency and Accountability: The Collegium functions through closed-door deliberations without publicly disclosing selection criteria or reasons for appointments and rejections. Example: In 2019, Justice Akil Kureshi’s elevation was delayed without a clear explanation, raising concerns over executive influence and opaque decision-making.
- Nepotism and Judicial Dynasties: The system has been criticized for favoring judges’ relatives and individuals with strong connections rather than selecting candidates purely on merit. Example: The presence of multiple second-generation judges in the Supreme Court, such as Justice D.Y. Chandrachud (son of former CJI Y.V. Chandrachud), has fueled debates over judicial nepotism.
- Lack of Diversity and Inclusivity: The Collegium system has led to an underrepresentation of marginalized communities, women, and candidates from diverse backgrounds in the higher judiciary. Example: As of 2024, the percentage of women judges in the Supreme Court remains significantly low, with only three out of 34 judges being women.
How can the establishment of an Indian Judicial Service help address concerns regarding judicial accountability and transparency?
- Merit-Based and Transparent Selection Process: The IJS would ensure that judges are selected through a competitive examination, reducing nepotism and favoritism in judicial appointments. Example: Similar to the Indian Administrative Service (IAS), where UPSC conducts open and merit-based recruitment, an IJS would create a level playing field for candidates from diverse backgrounds.
- Greater Diversity and Inclusivity in the Judiciary: A national-level selection system would bring in candidates from different social, economic, and regional backgrounds, making the judiciary more representative. Example: Currently, women and marginalized communities are underrepresented in the higher judiciary, but an IJS could help bridge this gap by ensuring equal opportunities.
- Stronger Oversight and Accountability Mechanisms: Judges recruited through IJS could be subjected to periodic performance reviews and disciplinary oversight, ensuring accountability and ethical conduct. Example: In Germany, judges are part of a structured civil service system with evaluation and accountability mechanisms, ensuring higher judicial standards.
Who would be responsible for conducting the recruitment process for the Indian Judicial Service?
- Union Public Service Commission (UPSC) as the Conducting Authority: The UPSC, which already handles merit-based recruitment for civil services like IAS and IPS, could be entrusted with conducting exams for IJS to ensure transparency and fairness. Example: The Judicial Services Examination at the state level is conducted by State Public Service Commissions; a national-level IJS could follow the same model under UPSC.
- Supreme Court and High Courts for Selection Criteria and Oversight: The Supreme Court, in consultation with High Courts and legal experts, could frame eligibility criteria, syllabus, and selection methods to maintain judicial independence. Example: The All India Judicial Service (AIJS) proposal, discussed since the 1960s, suggested a recruitment system similar to UPSC but with judicial oversight to ensure fairness.
- Independent Judicial Commission for Monitoring and Appointments: An autonomous body, comprising retired judges, legal scholars, and judicial officers, could be set up to oversee appointments and address grievances. Example: Judicial Appointments Commissions exist in the UK, where an independent body handles judicial recruitment, preventing executive or political interference.
Way forward:
- Balanced Judicial Appointments with Greater Transparency: Establish a Judicial Appointments Commission (JAC) that includes representatives from the judiciary, executive, and civil society to ensure a more transparent and accountable selection process.
- Strengthening Judicial Accountability Mechanisms: Implement periodic performance reviews and ethical oversight for judges, with an independent body monitoring judicial conduct and financial integrity.
Mains PYQ:
Question: Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. [UPSC 2017]
Linkage: Existing mechanism for judicial appointments and the debates surrounding it. The discussion on an IJS often arises as an alternative or complementary approach to the current system, aiming for greater transparency and potentially reducing the scope for concerns raised in the NJAC debate.
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Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that appointments are fair and transparent.
Two days after the Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution.
Questions on judicial review
The reaction of the executive to the NJAC verdict raises the fundamental question,
“Should the exercise of power of judicial review depend upon the will of the Parliament?”
Indian Constitution, unlike the Constitutions of USA and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear.
While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary.
The power to strike down offending amendments to the Constitution on the touchstone of basic structure can be exercised by the superior judiciary alone, uninfluenced by the will of the Parliament.
Our Constitution has given the power of judicial review to the unelected superior judiciary to declare ‘unconstitutional’ a legislative act, once it is found to be violative of the basic structure.
What remains of democracy if there is no rule of law?
The institutional arrangement at the heart of our democracy provides that the will of the people, as reflected in the decisions their elected representatives, is subject to the will of the Constitution, as reflected in the decisions of an independent judiciary.
Parliamentary supremacy refers to the power of Parliament to make laws within the limits imposed by the Constitution.
It also denotes the supremacy of Parliament over the executive, primarily through the accountability of the Council of Ministers to Parliament.
All the three organs of the state derive the power and jurisdiction from our Constitution. Each must operate within the sphere allotted to it.
Judicial function is also a very important sovereign function of the state and provides the foundation for rule of law.
Is it good that judges appoints Judges in India?
It is not wholly correct to say that judges appoint judges in India as consultative participation of the executive is present in the institutionalised procedure prescribed after the Third Judges case.
But assuming it to be so, ours is perhaps the only country where the government is the biggest litigant before the courts, Isn’t it?
Why is this so?
We are one of the very few countries where actions of the political executive in diverse fields, ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications, are brought before the superior judiciary in the public interest litigation (PIL) .
Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters?
It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.
Veto to non-judicial members
In the Second Judges case, the nine-judge Bench exposited that appointment of judges to High Courts and the Supreme Court forms an integral part of the basic structure of our Constitution.
Therefore, the executive cannot interfere with the primacy of judiciary in the matter of appointments.
The NJAC’s flawed composition consisted of the fact that it merged certain components, reflected in the inclusion of Law Minister and two eminent persons and giving any two members the power to veto the decision of the other four.
This directly affected the independence of judiciary in the judicial appointments process.
Way Forward to Fair and Transparent system
Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.
The judges who delivered the judgment in the NJAC case also hold the view that an improvement in the working of the collegium system is the need of the hour.
Demands of the Constitution can override the wishes of the people expressed through elected governments.
These are at the very core of a democratic commitment to judicial independence and constitutional supremacy.
In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.”
Published with inputs from Arun