‘CONSULTATION’ BLOG: JUDICIAL APPOINTMENT, AN EXECUTIVE ACT OR A JUDICIAL PRIMACY? 

The authors, Shrushti Taori and Tatva Damania, are fourth-year and third-year students, respectively, at Maharashtra National Law University, Nagpur.

Featured Artwork: NYU Law Magazine, Kotryna Zukauskaite

In recent years, judicial appointments in India have been the subject of intense debate. In the Westminster Model like India, all three organs act as checks and balances for each other. Hence, the legislature enjoys certain judicial powers, such as the removal of judges. Similarly, the President has the power to appoint and transfer judges, upon the advice of the Council of Ministers. The judiciary was, however, envisaged to be an independent organ. Thus, against this backdrop of separation of powers, there lies an important issue of appointments of judges. 

This blog explores the evolution of the appointment process for Supreme Court judges and identifies the fundamental problems in various judicial interpretations. It also explores how these interpretations do not align with the original intent of the Constitution’s framers and proposes a balanced approach to safeguard both the judiciary’s independence and the executive’s role in appointments.

1. HISTORICAL EVOLUTION OF THE PROCESS OF APPOINTMENT 

Earlier, the Crown had the absolute discretion over the appointment of  Judges. However, after due deliberations, the draftsmen of the Constitution amended this, and mandated the President to consult other Judges.

1. Appointment of Judges before 1993 – 

Before 1993, the President used to formally act on the aid and advice of the Law Ministry, and the final say was with the Executive. The ‘consultation’ provided by the Judiciary was not binding. However, between 1970 and 1980, the SC limited Parliament’s power under Art. 368, the then President retaliated by appointing the dissenting Judge as the CJI, superseding the three senior-most judges (Oxford Handbook, 2016, p. 80). The ‘consultation’ by the President to the CJI was questioned for the first time in Sankal Chand, which interpreted ‘consultation’ as ‘a conference enabling them to evolve a correct or at least satisfactory solution’. First Judges Case held that the word ‘consultation’ would not mean ‘concurrence’, giving veto power to the President.

2. Appointment of Judges after 1993 – 

The SP Gupta Case, was however, suggested to be reconsidered by the larger bench. Hence, a nine-judge bench held that amongst all the constitutional functionaries appointing the Judges, the view of the CJI would have primacy and ‘consultation’ must be interpreted as ‘concurrence’, thus overruling the SP Gupta Case. The Court also introduced the Collegium, consisting of the CJI and two senior-most judges.

The Third Judges Case redefined ‘consultation with the CJI’ as involving a plurality of judges, leading to the reconstitution of the Collegium. As a result, the Collegium system achieved exclusivity over judicial appointments, sidelining the government’s role. In response, the government established the National Judicial Commission, and later the NJAC. However, the constitutionality of the NJAC was challenged in the Fourth Judges Case. The Court, with a majority of 4:1 took the view that the establishment of the NJAC would tamper with the independence of the Judiciary. 

After all these tussles, the Collegium currently holds primacy in judicial appointments. However, this brings us to the core question of whether the executive’s role in judicial appointments should be re-examined to ensure a balance between judicial independence and accountability. 

2. REANSWERING THE FUNDAMENTAL QUESTIONS 
   1. The Executive applies its mind – not a mere act, but a cognitive role 

The Lawmakers, while drafting the Constitution, had not amended the role of the President to appoint the Judges of the SC, even though the Judiciary is itself best-equipped to know the worth of the candidate. This purposeful act indicates that the President is conferred the ‘responsibility’ to appoint the Judges. Moreover, the use of ‘mandatory consultation’ in Art. 124 highlights the intention to preserve the executive’s role. Therefore, ‘appointment’ as the function of executives (including the appointment of the Judges, here) is not merely an act, but cognitive conduct of the executive. Hence, the executive applies its mind to the matter before it, and does not act in a mechanical or arbitrary manner.

2. Appointment and Administration of Justice are separate acts  

Independence of the judiciary is fallaciously seen as Judiciary holding the primacy and Executive holding a mere check on Judiciary, assuming that reduced executive powers lessen political interference. However, the executive’s role in appointments is rooted in its distinct cognitive understanding, which is different from judiciary’s role in administering justice post-appointment. The Constitution thus creates a system ensuring that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging the powers and functions entrusted to them.

3. Primacy of Judges is not Independence of Judiciary 

The SC has time and again held that the Independence of the Judiciary forms a part of the Basic Structure Doctrine. The Third Schedule of the Indian Constitution demands the Judges to perform their duties “without fear or favour, affection and ill-will.” Hence, the Judicial independence would mean an independence from any such factor which may deviate the Judge from this oath, including executive hubris, and even from its own pre-conceived biases. However, according to Dr. BR Ambedkar,  Art. 124 does not create Imperium in Imperio, giving the Judiciary as much independence as is necessary for the purpose of administering justice without fear or favour.

The Court has, however, interchanged the ‘primacy of judges’ as the ‘independence of the judiciary’ and held that the primacy of Collegium in appointing the judges of higher judiciary is a basic feature of the constitution (Second Judges and Fourth Judges case). However, it was held in the dissenting opinion by Justice Chelameshwar in the Fourth Judges Case that the basic structure lies in non-investiture of the absolute power of the President, and not in the primacy of the judges. He also emphasized that safeguarding liberty is a collective responsibility of all three organs, and true constitutionalism arises when each performs its designated role without encroaching on others. While judicial appointments may influence justice administration, the Constitution deliberately assigns this function to the executive, recognizing its distinct role and perspective. 

2. Interpretation of ‘Consultation’  
   1. The Second Judges Case held the revival of the role of the Judiciary 

The Second Judges Case was a result of the executive taking full control of judicial appointments. The Court held that primacy would mean who discharges the greater function in achieving the constitutional purpose, and not who snatches away the ‘winner’s prize’. It noted that in the Government of India Act 1935, the Crown had all the power to appoint judges, without needing consultation with the Chief Justice. However, the Constitution of 1950 introduced the requirement of “consultation with” the judiciary, meaning the executive was not meant to have total control over judicial appointments, but rather to maintain judicial independence. Hence, the prior consultation with the Judiciary is mandatory, and it is fallacious to interpret it as though the entire power vests in the Judiciary. 

2. Consequence of interpreting ‘consultation’ as ‘concurrence’ 

The Fourth Judges Case finally held “The judiciary takes the winner’s prize”, if not in words, then in its effect. Reading Article 124(2) in harmony with Article 74(1), and circumscribing Article 74(1) with the requirements of Article 124(2), the Judiciary raises the proposal, when the vacancy arises. This proposal is passed to the concerned Department of the Council of Ministers. The President now appoints the Judges based on the aid and advice of the Council of Ministers. However, now there are two possibilities: 

(i) The Council of Ministers will say YES to the elevation of the judge recommended by the Judiciary.

(ii) The Council of Ministers will say NO to the elevation of the judge recommended by the Judiciary.

When the word ‘consultation’ is read as ‘concurrence’, the President has to mandatorily act ‘in concurrence with’ the opinion of the Collegium as held in the Third Judges Case.

In case (i), when there is the concurrence of the opinion of the Council of Ministers and the Judiciary, the President shall act in ‘concurrence’ with the opinion of the Collegium. This means the recommended participant will be elevated not because the Council of Ministers has also agreed to elevate him, but because the Collegium has recommended his name. 

This is evident in case (ii), where even if the Council of Ministers does not agree to elevate a particular recommended person, the President shall still act in concurrence with the Collegium. This means that ‘on an advice of Council of Ministers’ is a mere formality, and grants the Collegium an implicit power, which was definitely not intended by the Constituent Assembly or the Court when discussing the concepts of ‘primacy’ and ‘judicial independence’. 

3. It was never a question of concurrence   

The Constituent Assembly has used the word ‘consultation’ and not ‘concurrence’. However, the question in vogue amongst the Lawmakers during the Assembly Debate was never about concurrence or consultation, as the shift from the provision of Section 200 of the Government of India Act, 1935 to Art. 124(2) of the Indian Constitution has not completely deleted the powers of the executive in appointing the Judges. Thus, with a similar analogy drawn in the Second Judges Case, it can be concluded that the Constituent Assembly never wanted the President to act solely on the recommendation of the Judiciary. Hence, all that the Constituent Assembly meant was ‘consult’ and not ‘concurrence’. 

3. PROPOSED SOLUTION 

The above analysis of the judicial appointment process highlights the ongoing tensions between judicial independence and the executive’s role in appointments. To address these concerns, the following proposed solution can be considered:

1. After the vacancy arises, the Judiciary shall act as a ‘knowledge bank’ for the Council of Ministers headed by the Prime Minister by providing the objectified required data which it would have used otherwise in appointing any Judge for the same post. This would interpret ‘consultation’ strictly, which would mean that the Judiciary will have limited powers in appointing the Judges, meaning that it would limit the scope for nepotism and favouritism. Here, the word ‘consultation’ would mean ‘aiding by providing knowledge’ and not making the decision. In the light and spirit of the constitution, it is the executive who has to make the decisions based on its cognitive understanding for the smoother functioning of the country.
2. The executive will be responsible for analysing the data provided by the judiciary and appointing judges from the names referred by the judiciary, based on its own discretion, within a specific number of days. This approach ensures that no organ is superior to another, as both the judiciary and executive collaborate to achieve a common purpose. In the first step, the judiciary assists the executive by providing necessary data, and in the second step, the executive analyses this data to make a decision. Additionally, this model mandates the executive’s accountability through the public disclosure of these documents. Currently, the Collegium often claims that the Council of Ministers withholds the names for extended periods, rendering recommended candidates ineligible. Under this model, the executive will be required to appoint a judge within a fixed number of days after receiving the proposal.
3. Since the Executive is accountable to the people, it shall be bound to disclose its own analysis and the reasoning for why it has selected those/that particularly recommended candidate(s) out of all the other recommended candidates for the post(s). Moreover, it shall also be bound to disclose the data given by the Judiciary to the Executive.