“The constitution of India has been framed by ransacking all the known constitutions of the world” proudly stated Dr. B. R. Ambedkar during a constituent assembly debate. India has drawn in good measure several principles from the constitutions of several European countries and even the former Soviet Union and the United States. One such principle is judicial independence. In India, the subject of judicial independence has been intensely debated over the past several decades. Recently, after the creation of the National Judicial Appointments Commission (NJAC), the debate has assumed renewed interest. In a majority judgment of 4-1, the Indian Supreme Court declared the NJAC unconstitutional stating it violates the basic structure of the constitution by compromising judicial independence.
The collegium system of India is indeed a unique case of judicial self-appointment, with many questions raised about its non-transparent functioning, nepotism and efficiency in selecting the best of judges. In the same breath though, it is argued, that executive interference in the appointment of judges through NJAC is a direct affront to judicial independence. At the heart of this debate are competing interpretations of judicial independence, while judicial independence as a notion is in itself considered sacrosanct. Apart from the constitution, since judgments in India also draw heavily from international jurisprudence, comparing international notions of the independence of judiciary with respect to appointment of judges is warranted to aptly assess the competing interpretations of judicial independence. An analysis of judicial appointments which represent cases ranging from executive role in good measure as in the United States, to outright political interference as in Canada, to minimal executive role as in Britain, will help put the debate on judicial independence in the right perspective.
In the United States, the constitution empowers the president to nominate judges to the Supreme Court, the court of appeals as well as the district courts, who are then confirmed by the Senate. The website of the Administrative Office of the U.S. Courts states that, “The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President’s political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed for a life term.” It is evident here that the role of the executive or the legislature in matters of appointment of judges is not considered antithetical to judicial independence. On the contrary, it is a comprehensive set of safeguards provided to the judges post appointment that forms the essence of judicial independence. It is interesting that the Indian constitutional scheme also envisages judicial independence post-appointment and not during the appointment process itself. The president, and therefore the government on whose recommendation the president acts, is empowered to appoint judges after consulting with other judges as he/she thinks necessary. It is this consultation that the SC deemed as concurrence in the second judges case, which was further extended to plurality of concurrence in the third judges case, giving birth to what is today known as the collegium system.
In Britain, prior to the Constitutional Reform Act-2005 which established a Judicial Appointments Commission (JAC), appointments to the judiciary were made by the Lord Chancellor who is a government official. Though the JAC was established in some measure to address aspects of non-transparency in appointments, the major thrust behind its formation was to address lack of diversity in the judicial ranks on the basis of age, ethnicity and gender. However, unlike the NJAC in India, the JAC has a predominance of lay people as its members, with judges in a minority within the commission. The chairperson of the JAC is also a lay person whereas the NJAC has as its chairperson the Chief Justice of India. Moreover, the role of the Lord Chancellor has been reserved to accepting, rejecting or returning the recommended names for reconsideration after the selection process is over, unlike in the NJAC which has even the law minister as one of its members. A law minister in the NJAC, who may not remain minister in the future and go back to his law practice, is considered a clear case of conflict of interest, something which bore heavily on the SC decision declaring NJAC unconstitutional.
Judicial appointments in Canada consist of five processes, four of which are outright political. Only the first step involves a screening committee scrutinizing applicants and recommending names to the Minister of Justice, with even this committee having representatives of the federal government. The executive packing the judiciary with judges of similar ideological inclinations as that of the ruling political party is an oft-heard criticism, with frequent passage of laws aimed at curtailing the powers and functions of the judiciary. However, the Canadian judiciary is believed to be more representative and diverse with provisions of parliamentary hearings where judges are questioned on their judicial philosophy, albeit only after their appointments. Therefore, the Canadian notion of judicial independence is rather removed from the Indian interpretation of the same where any executive role in judicial appointments is seen with suspicion. The Japanese present a model of ‘people’s review’ each time a judge is nominated by the cabinet where, in a retention referendum voters may remove the judge from office. However, the appointments to the Supreme Court are made by the cabinet and to the lower courts by the SC. This is, therefore, a blend of judicial as well as executive appointment of judiciary. Here too, judicial independence is ensured by safeguards ensuring nonpartisan functioning of the judiciary post appointment and executive role in the appointment, per se, is not seen as an infringement on judicial independence.
In most modern democracies, including in the aforementioned countries, therefore the notion of independence of judiciary runs on two broad contours. While one notion perceives that a judiciary should be balanced, reflecting diversity and more control by the people through their elected representatives, the other notion views any executive interference in appointment with deep suspicion. In India, neither the collegium system nor the NJAC perfectly reflect either of the two notions. It is not to suggest that India must blindly replicate models followed by other countries. The NJAC is a definite improvement on the collegium system in terms of being a more transparent and merit based appointment system. However, the obvious contradictions in its composition are bound to make a judiciary which more often than not crosses swords with the government of the day, apprehensive and circumspect. While the legislature and executive must ensure the NJAC is less inclined in favor of the executive than it is now, the judiciary needs to believe that every single role of the executive in appointments of judges is not an affront to the independence of judiciary. In a country where turning to the judiciary is often the first and the only resort for the common man, justice, as the adage goes, must not only be done but also must be seen to be done. And judicial independence is the sine qua non for this to be achieved.