6.2.2. Appointment of Judges

The appointment of judges has never been free from political controversy. It is part of the political process. It makes a difference who serves in the Supreme Court and High Court— a difference in how the Constitution is interpreted. The political philosophy of the judges, their views about active and assertive judiciary or controlled and committed judiciary have an impact on the fate of the legislations enacted.

The process of appointing judges in India is often influenced by politics. This means that the personal beliefs and judicial philosophy of judges can shape the interpretation of the Constitution and, consequently, affect laws being enacted. For example, if a judge believes in a strong and active judiciary, they might make rulings that support extensive interpretations of laws which could impact how citizens' rights are protected.

Imagine a school board where each member has different teaching philosophies. If some members favor strict rules that maintain control, while others support more creative teaching methods, the policies they create will reflect these differences. Similarly, judges with varied philosophies can change how laws are understood and applied.

As far as the appointment of the Chief Justice of India (CJI) is concerned, over the years, a convention had developed whereby the senior-most judge of the Supreme Court was appointed as the Chief Justice of India. This convention was however broken twice. In 1973 A. N. Ray was appointed as CJI superseding three senior Judges. Again, Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975).

Traditionally, in India, the most senior judge of the Supreme Court is selected to be the Chief Justice. However, this tradition was violated in two notable cases where junior judges were appointed instead of their senior counterparts. Such actions sparked debates about fairness and transparency in judicial appointments, questioning whether political considerations played a role in these decisions.

It's like a senior student being skipped over for the role of the school captain in favor of a less experienced peer. While the decision may be based on political or administrative reasons, it creates confusion and concerns about how decisions are made.

The other Judges of the Supreme Court and the High Court are appointed by the President after ‘consulting’ the CJI. This, in effect, meant that the final decisions in matters of appointment rested with the Council of Ministers. What then, was the status of the consultation with the Chief Justice?

Judges of the Supreme Court and High Court are technically appointed by the President of India based on the advice of the Chief Justice. However, it often appears that the government's Council of Ministers effectively has the final say, which raises questions about the Chief Justice's influence in the process. This situation has led to a debate about whether the judiciary is truly independent in its appointments.

Consider a club where the president makes decisions based on the suggestions of the committee. If the committee's opinions are often ignored, the president's role becomes more symbolic than practical. Similarly, the Chief Justice's consultation seems to be a formality rather than a true decision-making process in judicial appointments.

Finally, the Supreme Court has come up with a novel procedure: it has suggested that the Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the Court. Thus, the Supreme Court has established the principle of collegiality in making recommendations for appointments.

In an effort to streamline judicial appointments and ensure fairness, the Supreme Court has introduced a system where the Chief Justice collaborates with four senior judges to recommend candidates for judicial appointments. This collegial approach is aimed at reducing excessive political influence and promoting a more unified judicial vision.

Think of a sports team selecting a captain. Instead of one person deciding unilaterally, all team members vote on who they believe should lead based on collective input. This collaborative process ensures that the best candidate is chosen based on the perspectives of various members.

The removal of judges of the Supreme Court and the High Courts is also extremely difficult. A judge of the Supreme Court or High Court can be removed only on the ground of proven misbehaviour or incapacity. A motion containing the charges against the judge must be approved by a special majority in both Houses of the Parliament.

Judges in India's higher judiciary can only be removed under stringent conditions, making it a very challenging process. Effective removal requires documented evidence of wrongdoing and a significant consensus among Parliament members, indicating the high regard for judicial independence and stability within the judiciary.

Think of a teacher in a school who can only be fired for serious misconduct, such as theft or harassment, and requires approval from the entire school board. This strong protection ensures that judges can perform their duties without fear of arbitrary dismissal, maintaining a heightened sense of independence.

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