Credibility Of India's Justice System: Appointment, Promotion, Transfer Of Judges

Independence of the judiciary

The Constituent Assembly (CA) discussed the need for an independent judiciary, so that a constitution court would deliver justice to the People. This involved the appointment and tenure of judges, their retirement age, salary, etc. The CA drafted and promulgated the Constitution, which has basic characteristic features, the elements of which are: Supremacy of We the People; Primacy of the Constitution and its unitary character; Sovereignty of the nation and State; The republican, democratic, parliamentary form of government; The federal character of the Constitution, and; The separation of powers between the executive, the legislative and the judiciary, the three primary institutions of governance.

Constitutional justice, liberty and equality for the People can be assured when the three primary institutions complement each other for betterment of the People. This ideal of complementarity is subject to the relative moral authority and power of personality of the apex executive (the PM) and the apex judge (the CJI). In real-time praxis, this has turned adversarial.

The separation of powers between the executive and the judiciary, ensures that the court does not become subservient to the government. The appointment of judges, and their promotions and transfers, are matters on which the primary actors are the Judiciary and the Executive.

Appointment of judges

The President, as Head of State, acts upon the recommendation of government, to appoint judges. This stands the test of constitutional logic, because the People elect the members of the legislature and through it, the government, whereas members of the judiciary are officials appointed through a process worked out between government and the court.

Independence of the judiciary is essential to keep it free of executive influence and interference with the justice processes. An exceptionally powerful executive with a two-thirds legislative mandate may seek to 'pack the court' with its nominees, to consolidate its political power. On the other hand, the judiciary would attempt to hold primacy over judicial appointments. Thus, the process of appointing judges to the High Courts (HCs) and the Supreme Court (SC) is at the core of the shifting balance of power between the executive and the judiciary, as prime ministers (PMs) and chief justices of India (CJIs) change with time.

Governments and judicial appointments

In India's first elected governments, PM Nehru valued appointment of 'first-rate' judges over courts that may be subservient to government. Accordingly, the President consulted the CJI for judicial appointments, with CJI virtually holding veto power, and appointments being almost entirely based on seniority.

Seniority alone did not ensure that a judge of the highest standards of professinal integrity and competence would become CJI or CJ of HC, for a duration of tenure that would permit him to implement policy. The Law Commission of India (LCI) recommended that a CJI's tenure should be at least five years. This implicitly removed seniority as the sole criterion for elevation to post of CJI, obviated short-tenure CJIs, and introduced the factors of merit, and judicial and administrative talent.

But notwithstanding the LCI recommendations, the seniority convention remained in practice, until the Indira Gandhi government was elected to power in 1971, with a majority. PM Indira Gandhi noted how SCI decisions in the past had curtailed government powers or decided cases against the government's position in court. Government perhaps believed that its electoral victory deserved acquisition of greater executive power than hitherto, and the route to greater power lay in controlling the Judiciary.

Thus, judges with 'philosophy and outlook' congruent with that of government took precedence for appointment as CJI. Justice A.N.Ray was the first 'committed judge' appointed as CJI in 1973, superceding three judges. Justice Ray's successor was Justice M.H.Beg, who superceded Justice H.R.Khanna, the sole dissenter in the five-member bench of the controversial ADM Jabalpur v. Shivkant Shukla case. The majority decision of the bench decreed that during the Emergency, a citizen's right to not be unlawfully or arbitrarily detained, was suspended.

The supercession of Justice H.R.Khanna, is the first instance of the Executive penalizing a principled dissenter, and exercising power over the Judiciary by appointing a 'committed judge' as CJI.

The Indira Gandhi government exercised this power during the Emergency, by transferring 16 judges, who had decided various cases against the government in the course of their judicial duties.

The Janata government that followed on 24 March 1977, appointed Justice H.R.Khanna as LCI Chairman. The LCI Report addressed 'The Method of Appointment of Judges', and recommended that the CJI ought to consult three senior-most judges before recommending names for appointment. According to this system, a 'collegium' of judges would recommend names, which government could query or object, but if the collegium reiterated the names, government was bound to appoint them.

Lack of clarity

When the Indira Gandhi government returned to power on 14 January 1980, it renewed its efforts to influence judicial authority. The confrontation between the Executive and the Judiciary came to be identified with S.P.Gupta v. Union of India (also known as the First Judges' case) in 1981. This came before a seven-judge bench, that dealt with aspects of independence of the Judiciary from executive arbitrariness and interference in appointing judges. The SC bench held that the CJI's opinion had no primacy in appointing judges, although consultation would continue, but with the CJ of a HC and the State Governor becoming parties to be consulted for appointing HC judges. Thus, the Judiciary effectively ceded appointment power to the Executive, and itself struck a blow to judicial independence.

The Rajiv Gandhi government, which came to power on 31 October 1984, following assassination of PM Indira Gandhi, was also accused of appointing compliant judges. The LCI of the coalition governments that followed after December 1989, opined that the judiciary had a parochial, regional, narrow outlook – a seriously adverse comment on the Judiciary by the Executive.

In 1993, a nine-judge SC bench in Advocates-on-Record Asociation v. Union of India, held that the CJI had primacy in appointment of judges, and created a Collegium system for appointing judges. Thus, the 1981 decision of the seven-judge bench in S.P.Gupta v. Union of India was reversed, and judicial authority re-asserted.

In 1998, the SC voluntarily reviewed its 1993 decision. The SC formed a nine-judge SC bench that reaffirmed the Collegium system, and expanded it to five members, comprising the CJI and the next four senior-most judges. This is known as the Third Judges' case. However, while increasing its own power through the expanded Collegium system, and effectively excluding the Executive in appointment of judges, the SC did not mention the method of collecting and collating information on judges, or the selection criteria. Judicial power in appointment of judges remained arbitrary.

The NDA and UPA (coalition) governments that were in power between 1998 and 2014, could not muster power to challenge the Judiciary in appointing judges. But this changed in May 2014 when the BJP-led NDA government was elected to power with a decisive majority, with Modi as PM. This strong executive lost no time to exercise power over appointing judges.

The NJAC judgment

In November 2014, government tabled the 99th Constitutional Amendment Bill, and passed it as the National Judicial Appointments Commission (NJAC) Act 2014. The NJAC Act envisaged constituting a Commission comprising six members: The CJI as Chairperson, the next two senior-most SC judges, the Law Minister, and two nominated eminent persons from civil society.

With three of six members from the Judiciary and only one member (the Law Minister) from government, the Judiciary would appear to have primacy over the Executive, in making appointments. However, the SC sprang into action, and a five-judge bench examined the constitutionality of the NJAC Act. The 4:1 'NJAC Judgment' struck down the Act, reasoning that it violated judicial independence.

However, the judgment does not define judicial independence, except to assert judicial primacy in appointments. It is unclear whether the SC bench viewed the NJAC Act as promoting executive primacy.

The personality, the dignity of Office, and the capacity of the members of the Commission to analyse data of candidates, and personal knowledge of the candidates, would play the key role in selecting judges for appointment. The three top-most judges of the country would experience little problem to prevail over the sole member from government, to select judges who would be an asset to the judicial system. The two eminent members from civil society need not be viewed as taking sides with the Executive or the Judiciary, since they are nominated by a Committee comprising the PM, the CJI and the Leader of the Opposition.

However, all that is now water under the bridge, since the NJAC Act was struck down in 2016.

2016 to-date

It is debatable whether striking down the NJAC Act, and continuing with the Collegium system, served the purpose of elevating independent and efficient judges to HCs and SC. It is apt to note that Justice Kurien Joseph had remarked that “the present Collegium system lacks transparency, accountability and objectivity”. This remark reflects the reality of no formalised institutional mechanism to collate the personal and professional data/information of candidates for placing before the Collegium for its consideration, no determined criteria for selection, and the selection process file not being available even to other judges of the SC. Piquantly, Justice Kurien Joseph was one among the 4:1 majority NJAC Judgment that restored the Collegium system.

Following the NJAC Judgment, the Collegium's recommendations for appointment, promotion or transfer of judges, are sent to government for obtaining the President's approval. Experience shows that government has kept files unactioned for months together, without explanation. In other instances, government has rejected the Collegium's recommendation in respect of certain judges. As judges retire, the Collegium begins a fresh selection process. There are instances in which government altered the sequence of swearing-in of approved judges before the President, altering at will, the inter se seniority of promoted judges.

Thus, government successfully manages which judge gets where and when, and transfers judges who have delivered judgments contrary to government's position.

It is not realistic to expect that keeping the Executive outside the appointment selection process, as the Collegium presently does, will obviate political influence in appointments.

The four cases concerning appointment of judges (S.P.Gupta v. Union of India 1981; Advocates-on-Record Asociation v. Union of India 1993; the Third Judges' case 1998; and the NJAC Judgment 2016) are evidence of unseemly confrontation between the Judiciary and the Executive, in appointing, promoting and transferring judges.

People are the losers

Lacking clarity concerning its own internal processes, the Judiciary appears to have effectively ceded its primacy to a powerful Executive. The tussles between the Judiciary and the Executive, have resulted in degradation of timely justice, especially in matters of constitutional importance and urgency. Worse, it has led to concern among the legal fraternity and the public, that some of the judges appointed to HCs or elevated to SC, are not immune from political influence. This damages the credibility of the justice system.

Reference: “[In]Complete Justice?”; Edited by S.Muralidhar; Published by Juggernaut Books, 2025.

Author is retired Major General of Indian Army. Views Are Personal.