Harsh Gagrani writes about the problems and perspective related to the appointment of judges in the Indian Judiciary.
Abstract
The judiciary plays an important role in ensuring rule of law and maintaining stability in the society. As the role played by the judiciary has evolved over the years, ensuring the independence of such an organ is considered essential for the successful functioning of the democracy. Even today, the appointment of judges is seen as a grey area which seems to disrupt judicial independence where the executive and the judiciary are at loggerheads. Though the Constitution of India 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. Even after such a privilege was provided to the judiciary under the collegium system, there arose problems of accountability, which, according to the author can be settled to a great extent by the establishment of an independent body (the National Judicial Commission) which comprises of the retiring Chief Justice of India as its Chairman, the President of India, three senior-most judges of the Supreme Court, three senior-most Chief Justices of the High Courts, the Law Minister of India and an outstanding law academic, selected by the President of India. To further ensure accountability and transparency, this body should not be outside the purview of the Right to Information Act, 2005 or any such legislation questioning their answerability. The greater role of media to ensure accountability is also emphasised.