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Judges’ appointment: Putting the debate in historical and political contexts

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‘Appointment of Judges to the Supreme Court of India’ comes at a moment when the contours of independent judiciary are consistently being contested.

The debate on judicial appointments in India reminds one of the famous remarks of Justice O.W. Holmes Jr. that “life of law is not logic but experience”.

Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence is an edited volume of wide ranging essays by erudite legal scholars that seeks to address this very debate, among others. The book comes at a moment when the contours of independent judiciary are consistently being contested.

The beauty of this book — edited by Arghya Sengupta and Ritwika Sharma — lies in its ability to historically and politically contextualise the debate on judicial appointments.

It is often said that the true test of institutional independence is that the persons holding the posts are free from both external as well as internal influences. Judiciary holds an immensely important position in a democracy, as in the words of Benjamin Cardozo, the judicial pronouncements “make the right and wrong of tomorrow”. However, a truly independent judiciary should know that nothing that it pronounces is the final truth. Consequently, it is the ability of the persons appointed as judges to adhere to this notion that determines the triumph of rule of law.

The first five essays give us a historical account of events that led to reading judicial primacy in matters of appointment under articles 124(2) and 217(1) of the Indian Constitution. These essays examine how the era of emergency and the infamous supersession of senior judges to appoint A.N Ray and M.H Beg as Chief Justice of India still informs the manner in which the judiciary approaches the law on judicial appointments.

The disagreement over mode of judicial appointments calls for a philosophical examination of the power vested in each branch of the government. These essays succeed in doing so and pose two important questions before the readers; whether executive participation in judicial appointment is the only way to provide democratic legitimacy to this process and whether the perception that popular sovereignty vests in just one branch of the government violates the spirit of the Constitution?

The second segment of the book is devoted to a detailed analysis of the NJAC [National Judicial Appointment Commission] judgment (2015). This judgment struck down the 99th Constitutional Amendment, 2014 and the NJAC Act, 2014 for violating the independence of judiciary, a basic structure of the constitution.

The essays in this section provide an enriching perspective, especially since many of the contributors were directly and indirectly involved in the making of this judgment. The present collegium system has been strongly criticised for its lack of transparency and disdain for giving voices to people outside the judiciary. It is argued that NJAC Act attempted to make this process a collaborative effort between judiciary, executive and the civil society and strived to ensure diversity both on and behind the bench. One of the essays interestingly relates diversity of representation in the appointment process as a mark of judicial independence. The notion that plurality of voices bolsters institutional independence, celebrates the idea of democratising institutions in a constitutional democracy.

To say that the judiciary was completely wrong in invalidating NJAC would be incorrect as the Act did have several drawbacks. Some of the contributors incisively point out these flaws. The challenge is to balance the opacity of the collegium with a system that allows non-judicial members a voice in judicial appointment without giving it the power to usurp judicial independence.

This book raises some difficult questions which have to be answered in the quest to find this delicate balance. We need to contemplate whether the primacy accorded to judges in matter of judicial appointments a part of basic structure of the Constitution or merely a convention that has assumed inviolability because of the dark experiences of our past. The conflict between the judiciary and the executive in this matter cannot be understood without analysing the events that have shaped the law on judicial appointments. The fact that this understanding is exhibited by almost all the essays makes this book a compelling read.

The lack of comparative examination of legal issues often deprives us from finding innovative solutions to key problems. The last segment of this book is dedicated to filling this lacuna. While our experience cautions us against executive participation in judicial appointment, it also makes it difficult to ignore the drawbacks of a closed collegium system. Hopefully, our logic will aid us in using our experiences and those of other nations to ensure more transparency and accountability of judiciary without compromising on its independence. This book is a worthy attempt in locating that logic.

Anumeha Mishra is an assistant professor at the Faculty of Law, University of Delhi

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