“Justice can become ‘fearless and free only if institutional immunity and autonomy are guaranteed”.[1] Having regard to the importance and significance attached to the function performed by the judiciary, the Constitution has consciously provided for separation of judiciary from the executive.[2] The separation of powers between these two organs of the government has to be observed with respect to judicial appointments, transfers, retirement et al so as to maintain independence of judiciary. Article 124(2) of Constitution of India confers power on the President of India to appoint SC judges with consultation of some SC judges of his own choice. Similarly, under Article 217(1), the president is the sole authority to appoint the judges of the high courts. Of course, before making such appointments, he has to consult the chief justice of said HC and the governor of the relevant state. The appointment of judges to the higher judiciary in our country, that is, the Supreme Court and the High Courts of the states has become a contentious issue as there is a constant tug of war between the executive and the judiciary. The issue attracts attention as the service rendered by Judges demands the highest qualities of learning, training and character. Judges are expected to present a continuous aspect of dignity and conduct.[3] Between the years 1982-1999, the issue of method of appointment of judges was examined and reinterpreted by the Supreme Court.[4] Since then, a collegium, consisting of the Chief Justice of India and 4 other senior most SC judges, made recommendations for persons to be appointed as SC and HC judges, to the President. One can argue that the system is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. Taking above reasons into consideration NJAC was proposed by Parliament of India. It amended the Constitution and brought about the 99th Amendment to provide for the NJAC after the new government came to power. Subsequent ratification of 20 States was also obtained and it seemed that the collegium was history. However, soon petitions were filed challenging the constitutional amendment. The Supreme Court also struck down the 99th Amendment in order to maintain independence of judiciary.
On a comparative basis in UK, the Lord Chancellor and the Prime Minister traditionally have the exclusive nominal control over the appointment of judges. The British government has now set up the Judicial Appointment Commission under the Constitutional Reform Act 2005. Under this Commission, selection of judges shall be based solely on merits. Literally, the power of appointing judges has now been taken away from the hands of the Lord Chancellor and placed on the Commission. However, the Lord Chancellor may issue guidance for the performance by the Commission, but before doing so, he must consult the Lord Chief Justice[5].
It is the need of the hour for executive and the judiciary to iron out the differences which persist and have a meaningful dialogue as we cannot risk another judicial decision. “The executives, the Judges and the lawyers must resolve to avoid, at all cost, a Fifth Judges’ Case.”[6]
[1] Union of India v. Sakalchand Himatlal Sheth, (1978) 1 S.C.R. 423 (Bhagwati, J.).
[2] Article50 of the Indian Constitution
[3] judicial independence in judicial appointments: a necessity I.S.S.N 2321 6417
[4] S.P. Gupta vs. Union of India, AIR 1982, SC 149; S.C. Advocates on Record Association vs. Union of India, AIR 1994 SC 268; In re: Special Reference, AIR 1999 SC 1
[5] A note on judicial appointments in the worl by Sudhanshu Mittal(BJP member)
[6] Fali S. Nariman, Needed: Dialogue, statesmanship, THE INDIAN EXPRESS, Aug. 6, 2014, at 9