Government appointing judges is threat to independent judiciary

Anmol Gupta


Ask someone, “How can judicial credibility be maintained? Should the judges be picked on the recommendation of the incumbent government? How can we expect an independent and vibrant judiciary then? Is it just to welcome the influence of political class in judicial department?

One may respond, “The judicial office should exclusively be held by the people of excellent character, greater calibre, and commendable record of having deep insight and profound knowledge of law, justice and society. However, it’s an uphill task to keep the political influence or corporate interest at arm’s length unless there is a Constitutional package disallowing the command of the government in entire appointment and transfer of the judges of higher judicature. A judiciary snowed under political intrusion would be merely a lapdog, not a watchdog.

It’s an uncontested fact that the judiciary plays a profound role in interpreting the municipal law as well as international laws to open a window for reformation in existing legal system. As a result, it may request the parliament to tailor the laws in a fashion that could accelerate the cause of Constitutionalism in democracy.

In a democracy, people have a legitimate expectation from their judiciary that it would spearhead the cause of justice. And it would succeed to act impartially and independently in resolving the disputes arising between Centre and State(s) or vice-versa or between/among any plaintiff and defendant.

At this backdrop, it bears relevance to shed light on the constitutional arrangement of judicial appointments in India, United States of America (US), England, Australia and Nepal.

Article124 (1) of the Constitution of India envisages that there shall be a Supreme Court of India and it shall be constituted by the Chief Justice of India (CJI) and 30 other judges unless the numbers are increased by the law of parliament. The succeeding clause enacts that every judge of the topmost Court shall be appointed by the President under his warrant and seal after consultation with such other judges of the SC and HC which he deems necessary for the purpose and such judges shall attend the office until the age of 65.

Nevertheless, the enactment has a ‘provisio’ which mandates that in case of appointment of judges of the SC, other than CJI, the CJI shall always be consulted. The positive factor is that in case of appointment of judges, the President is bound to consult with the CJI while the negative factor is that President is not bound to consult with anybody in appointing the CJI.

In a bid to rule out the political influence in judiciary, the SC of India has made a complete departure from the Constitutional mandate by introducing Collegiums system of appointing the judges.

Before 1993, President’s power to appoint the judges was purely of a formal nature as s/he is supposed to act on the aid and advice of the Council of Ministers headed by Prime Minister [Article 74]. In this way, the ultimate power to appoint the Judges of Supreme Court was vested in executive, which was not bound to pay a heed to the opinion of CJI. In 1958, the Law Commission of India had criticised the practise of appointing senior-most judge of Supreme Court as CJI and opined that the CJI should be an experienced judge and competent administrator and his succession should not be regulated by mere seniority.


In this effect, on April 25, 1973 (a day after the delivery of judgment of popular case of Keshvanand Bharati v. State of Kerala), the Indira Gandhi-led government departing from previous conventions appointed justice A.N. Ray as CJI while superseding three of the senior-most judges (who had decided against the government of the day). Justice Ray had decided three major cases—though in dissenting—namely Bank Nationalisation case, Privy Purse case, and Keshvanand Bharati case in favour of the government. This raised a hue and cry in the Republic at a time when Indira Gandhi was acting in a fashion that could canvass “(in)famous” message: “Indira is India and India is Indira”. Although the government contended that it invoked the recommendation of Law Commission, no sane person believed that the seniority rule was pushed to backburner just because Law Commission had suggested so a few years back.

Again in 1976, Indira Gandhi government appointed Justice Beg as the CJI bypassing justice HR Khanna who was senior to Mr Beg at that time. Consequently, Justice Khanna resigned in protest. Fortunately, after retirement of Chief Justice Beg, there is a well-established practice since 1978: The senior-most judge of the SC shall always be appointed as CJI.

These unwelcome incidents led to the famous case of Supreme Court on Advocate Record Association v. Union of India, (1993) which laid down guidelines governing appointments and transfer of Judges. The brave SC for the first time held that the President would be bound by the advice of CJI.

Also, it has been held that there should be a 3-member “Collegium”, including CJI plus two senior-most judges, which would play an instrumental role in recommending the names of judges who will be appointed by the President without any hassle. The SC also confirmed that the senior-most judge of the SC shall always be appointed as CJI.

Thus, it succeeded to thwart the scope of political bias or favouritism in the appointment of Judges.

Similarly, in Re presidential reference case, (1999), the 9-judge bench of SC held that the recommendation made by CJI in appointment of Judges without following consultation process would not be binding on the President. The majority view was that the CJI should consult with collegiums of four senior-most judges of the SC and it has been made clear that if two judges give adverse opinion, then CJI would not be competent to send the same recommendation to the President. It means the CJI does not act in person but with the consultation of four senior-most judges.

In doing so, the SC has made the “Consultation process” more democratic and transparent.

Then, the disgruntled parliament rushed to enforce the National Judicial Appointment Commission Act (NJAC), 2014, in an endeavour to ensure a say of the government of the day in entire appointment and transfer the judges of higher judiciary. This attempt was in contrast to long stayed Collegiums system which is in place since 1993. After sensing that the provisions of NJAC Act has potential to welcome political intervention in one way or some other, the highest Court (in 2015) held the entire Act as unconstitutional.

Like Iraq, the names of judges are recommended by the judges in India– in order to rule out the political influence. This arrangement has been introduced by the Supreme Court itself.

Meanwhile, in Australia, Section 6 of the Highest Court of Australian Act, 1979, provisions that the Governor General in-Council has a power to appoint the Judges of the Courts established by the Parliament.

More so, the newest Constitution of the world, which entered into force in Nepal on September 20, 2015, stands in favour judicial appointments made on the recommendation of Judicial Council (JC), where the Law Minister shares a berth. The JC has been empowered to float the names of the persons to be appointed as judges, except Chief Justice of Nepal, of the SC. Unlike India, it has been provisioned that in addition to Chief Justice of Nepal; there shall be a maximum of 20 Justices in the Supreme Court [Article 129-1].

In this connection, Article 129 provides that the Chief Justice of Nepal will be appointed by the President on the recommendation of Constitutional Council which is headed by the Prime Minister (according to Article 284).

The constitution of JC has been provided under Article 153. It envisages that the Chief Justice of Nepal will be ex-officio Chairman of the Council, whereas the Federal Law Minister, senior-most judge of the SC, a legal expert nominated by the President on the recommendation of the Prime Minister, and a senior advocate appointed by the President on the recommendation of Nepal Bar Council will be acting as members.


In England, a drastic change took place with the introduction of “Constitutional Reforms Act, 2005”. This Act intends to keep judiciary independent from legislature and executive. The Act recommended for the establishment of Supreme Court in UK and the government established Supreme Court of England in 2009 by acknowledging the provisions of this Act. It’s been provisioned that the Prime Minister will recommend the names of persons to be appointed as judges and forward it to the Queen and such is supposed to be preceded by the consultation with senior Judges and Lord Chancellor of England.

Similarly, in the US, there is a well-established practice that the Attorney General, who is a member of committee formed for the purpose of judicial appointments, prepares a list of names to be appointed as judges of the SC and forwards the same to the President. Afterwards, the list is laid down before the Senate for confirmation. Still, the Senate has a power to veto the choice of President. Thereafter, the Senate by a simple majority approves the appointment of such persons who are to be appointed as the Judge of the SC.

At this background, it’s of momentous value to acknowledge the words of Justice Untwalia who has rightly opined that the judiciary is like “a watching tower above all the big structures of the other limbs of the State from which it keeps a watch that whether other limbs of the state are working in accordance with law and Constitution.

Justice HR Khanna himself in his autobiography– “Neither Rose, nor Thorns”–mentioned that if there are three prime requisites for the rule of law, they are: strong bar, independent judiciary and enlightened public opinion. Justice Khanna further argued that there can be no greater indication of decay in the rule of law than a docile Bar, a subservient judiciary, and a society with a choked or coarsened conscience.

It’s high time for the states to acknowledge the uncontested saying of HR Khanna, at least, for maintaining constitutionalism in a democratic set up.

Social development, prosperity and strengthening of democratic credentials in a society depend on complete justice, independent judiciary and rule of law. So, the efforts should be made to rule out the political influence in judicial appointments.

The writer is student of LL.M (Constitutional and Administrative Law) at Faculty of Law College Dehradun, Uttaranchal University, Dehradun, India).

Published on April 6, 2018