Judicial Appointments Mechanism in India and Independence of Judiciary - A Critical Analysis

Abstract

The Constitution of India, in order to ensure Independence of Judiciary, provides for the appointment and transfer of Judges of the higher judiciary by the President in ‘Consultation’ with the Chief Justice of India and the other Judges. A controversy arose with regard to the word ‘Consultation’ as the Supreme Court equated this word with ‘Concurrence’ while evolving the ‘Judges’ Collegium’ system, shifting the power from the Executive to the Judiciary. However, in 2014, Parliament threw away the two decade old Collegium System and established the National Judicial Appointments Commission. The present paper critically examined the two mechanisms, namely, the Judges’ Collegium and the newly introduced National Commission for Judicial Appointments, along with the relevant judicial pronouncements. The paper concludes that, neither the National Judicial Appointments Commission nor the Judicial Collegium proves sound on the principles of Independence of Judiciary and Rule of Law. It suggests incorporation of ‘Judicial Council’ comprising seating judges in rotation, retired judges, renowned academicians and jurists in the legal field, having no connection with political parties or political activities, to be appointed by the President of India, to nominate, select and appoint judges.

Keywords: National Judicial Appointments Commission, Independence of Judiciary, Judges Collegium, Judicial Appointments in India