The Chief Justice of India, on 15th of August in his Independence Day speech, reiterated the need for the government to look at the Judiciary. He expressed disappointment over the PM Modi speech on the Independence Day for not talking about the scarcity of Judges and the overall problems that Judiciary faces. The CJI’s repeated public statements accusing the government of creating crisis in legal system by withholding the appointment of judges shortlisted by the Supreme Court collegium (Note: The President has to assent the approval of Judges. However, this is qualified and he can only do so on the aid and advice of the Council of Ministers, with the Prime Minister as the head of the Council of Ministers) is a rather interesting phenomenon. In reality, it is not only the government’s fault but the courts also share responsibility for the impasse in the judicial appointments. The Judiciary has assumed itself the powers that ought to be evenly distributed among the organs of the state. Such arrogation of power undermines the authority of the ultimate sovereign in a democracy, the people. Appointment of judges by a self-propagating collegium is not the best way to choose the judges.
A judiciary that inspires confidence is required in an effective democracy. For this, the judicial appointments have to fair and transparent. A system that provides anyone the opportunity to apply either for the bar or interested in the judgeship. The way to do this is to make all the vacancies public and setting out clear eligibility criteria. A committee should be set-up comprising of judges and the highest law officer of that particular jurisdiction to recommend the names and shortlist for the government to appoint them. The committee must review all the application and its decisions and recommendations must be recorded. The government then could choose a candidate for consideration from the shortlisted candidates and then seek approval by the State Assembly or the Parliament. In a representative democracy, the appropriate legislative committee shall have the final say on appointments, with the committee comprising of the members from the ruling and the opposition parties and having full access to all the relevant records as a part of the approval process. The executive and the legislature must play an active role in the far-left behind judiciary (In India the Judiciary is independent as compared to the legislature and the executive).
India needs a democratic process for appointment of judges. Such a process would ensure true judicial autonomy. While such a system will take time to be put in place, the appointment of the judges from the present judicial process cannot come to a halt and the vacancies must be filled from the list given by the collegium. A blame game over the appointment of the judges serve little purpose and helps no-one.
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