Introduction
“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”- Andrew Jackson
A need of Independent judiciary is recognised by almost all of the countries of the world. This is because the role played by the judiciary is not only to adjudicate disputes between parties but also to keep in check the exercise of legislative and executive powers by the Government, and thereby ensuring that the constitution protections guaranteed to the citizens are not taken by the arbitrary actions of the Government. The judiciary by ensuring that the legislature or executive do not transgress their powers or arbitrary exercise them, ensures rule of law and a free and prosperous society. The independence of judiciary is generally secured by the constitution but it can be secured by the legislation, conventions and other suitable norms and practices. But the totality of the independence is secured by favourable environment created and secured by all state organs and public opinion.
The framers of Constitution of India while incorporating the doctrine of Separation of Powers (although not in strict sense) and federal structure knew that for the effective implementation of these principles there was a need of independent judiciary which could act as a watchdog to oversee that the legislature and executive exercises the power vested in it in the manner prescribed by the constitution. Further, since the judicial review forms part of the basic structure of the constitution it is very necessary that judiciary should be free from the legislative or the executive control and for that to be achieved it was absolutely imperative that the appointment of judges to the courts should be free from the control of the legislature and executive or should be subject to least amount of control.
The procedure of appointing judges to the higher courts in India has been a subject to a number of debates and marred with controversies since the beginning. Recent passage of National Judicial Appointment Commission Act, 2014 and the subsequent decision of the Supreme Court holding the act unconstitutional and restoration of the collegiums system have to some extent diminished the credibility of the judiciary in India. Also the pendency of more than 400 vacancies in various High Courts also shows how tenuous the relationship between the judiciary and the executive has become. In light of these circumstances this term paper tries to comparatively study the method of appointment of judges to the highest courts of US, UK and India. Comparative study is made so as to examine the best practices in these three countries and to see whether some of the features can be borrowed from these countries in order to make the appointments to the Supreme Court of India independent and transparent.
Indian Position
History
The Constitution of India establishes a Supreme Court which consists of a Chief Justice of India and 30 Judges (present position). The framers of the Constitution of India after going through various proposals which were put forth in front of them for the appointment of judges to the Supreme Court of India finally came to the conclusion that, “Judges of the Supreme Court are to be appointed by the President of India after consultation with such of the judges of the Supreme Court and the High Court as the President may deem necessary”. The Chief of Justice of the Supreme Court was appointed on the basis of the seniority. The president exercised this power formally and like all other matters the executive was in driving seat in the matter of appointment of judges and either there was no consultation or it took place behind the closed doors. Despite the criticism of the Law Commission in 14th Law Commission Report and changes recommended therein there were no changes made in the process of appointment of Judges. This formula of appointment had worked quiet pleasingly until the Supreme Court started interfering in the exercise of power by the executive and legislature (Golak Nath and Keshva Nanda Bharti Cases) whereby the Government in the year 1973 departed from the settled practice of appointing senior most judge of the Supreme Court as the Chief Justice of India by appointing Justice A.N. Ray who was fourth in line of seniority after superseding Justice Shelat, Justice Grover and Justice Hegde, which led to resignation of the above mentioned three judges. On the retirement of Justice Ray, Justice Khanna who was the senior most judge, was again superseded by Justice beg mainly due to Justice Khanna’s dissenting opinion in the case famously known as Habeas Corpus Case . Also during the days of emergency several judges of the High Courts were transferred and the services of various additional judges whose judgements were in conflict with the interests of the Government. Due to all this in the year 1977 when the emergency ceased and Congress Government was toppled, Law Commission was requested by the new Government to look into the matter of appointment of judges. Law Commission in its 80th Report while stressing upon the need of having the persons of the highest calibre to be appointed as judges of the Supreme Court and the High Court stated that the Chief Justice while making a recommendation should consult 3 senior most judges of the court and the CJI should also incorporate the views of those consulted in the recommendation and unanimous recommendation of the panel should be normally accepted by the executive. In respect of appointment of CJI the commission recommended (keeping in mind the history related to the post) that the senior most judge should be appointed as the Chief Justice of India (same is the position till date).
Development through Case Law
In view of the prevailing executive high handedness in the matter of the judicial appointments, several writ petitions filed in the various High Courts were transferred to the Supreme Court and were heard by a seven judge bench in S.P. Gupta v. Union of India (also known as Judges Transfer case). The court while holding “Independent Judiciary” as a basic feature of the constitution went on to examine various questions relating to appointment of judges both in Supreme Court and High Court these can be summarised as follows:
1. That there must be a real and effective consultation between the President and CJI and other judges as the President deems fit and the question whether consultation has taken place or not would be justiciable and if required all the relevant material will be placed before the court.
2. Regarding the appointment of judges of High Court it was held that the proposal of appointment could emanate from Governor, Chief Justice of High Court or Chief Justice of Supreme Court and CJI did not occupy any higher position.
3. Interpreting the word “consultation” court held that consultation does not mean concurrence and so even though President was required to consult the CJI and other judges he was not bound by it and he could appoint judges without agreeing to them. To that end this judgement gave supremacy to the executive on the matters of appointment of judges.
This judgement did not find favour with many jurists and was even the Law Commission was not happy with the situation prevailing at that time and in its report specifically mentioned that “the recent developments has given apprehension that the independence of Judiciary, said to be cardinal feature of the Constitution, is likely to suffer erosion at the hands of executive”. Commission further stated that the judgement laid down in S.P Gupta case accepted the view laid down by the founding fathers but at the same time opined that the present mechanism had failed to achieve the objectives for which it was laid down and has thus become dysfunctional. So the commission after going through various methods of appointments being followed in different countries suggested setting up of National Judicial Commission. Commission however, did not decide upon the functioning and composition of the judicial commission. Like many other reports this report also did not hold much water and was not implemented.
The question of judicial appointments again cropped up before the apex court in Supreme Court Advocate-on-record v. Union of India which was heard by a 9-judge bench and the court by a majority of 7:2 the court while reiterating that independent judiciary formed part of basic structure the court reversed its earlier decision in S.P Gupta case stating that…