Open Access Research Article
JUDICIAL APPOINTMENTS IN INDIA, UNITED KINGDOM AND UNITED STATES OF AMERICA: A COMPARATIVE STUDY WITH REFERENCE TO CENTRE AND COLLEGIUM
Published Paper
Article Details
JUDICIAL APPOINTMENTS IN INDIA,
UNITED KINGDOM AND UNITED STATES OF AMERICA: A COMPARATIVE STUDY WITH REFERENCE
TO CENTRE AND COLLEGIUM[1]
AUTHORED BY - JYOTSANA AGRAWAL
Abstract
The independence, impartiality and integrity of judges
are highly important to the maintenance of public confidence in the system of
government[2].
The process of decolonization in India, which culminated in the ‘transfer of
power’ in 1947, did not entail a radical rupture with the colonial past.
Rather, independent India inherited and adapted many of the institutions,
practices and values that had been shaped by British rule. This paper examines
the case of the judiciary, which was modeled on the British and American
systems, and which retained some of the powers and functions of its
predecessors. The paper explores the implications of this continuity for the
development of democracy and the rule of law in India.
It analyses the trend followed in India for the
appointment process by looking into the various modes adopted by British rule,
which was struck down by the Supreme Court in 2015. An era of discussions has
laid down the lane of judicial world to unlock the code of appointments and
make it systematic, but every now and then these implementations prove that
politics is involved. The legal frontiers have made the system a web. We will
try to provide the recommendations to improve the appointment process to uphold
transparency and accountability.
Keywords: Judicial Appointments, Asia-
Pacific region. USA, India, China, politics, NJAC, transparency, accountability
Literature review:
1.
Chapter 1,
Asia- Pacific Judiciaries: Themes and Contemporary Perspectives, H.P. Lee and
Marilyn Pittard,3.
The book titled “Asia-Pacific
Judiciaries: Independence, Impartiality and Integrity” has devolved about
an important aspect of judiciary, i.e. public
trust. It does mean judges beng famous in public and then gaining the public trust. But basically doing what is
called impartial application of law. Chapter 1 of the book, reflects the ideas of
judicial system in various Asia- Pacific region and put forth various questions on each
aspects. The author, is of the opinion that in order to study the system
of any country’s judiciary, the focus has to be upon broad themes initially and then studying each theme individually and applying it on country-
country basis will give a detailed understanding of the said country’s system.
The author manly focuses on independence and
impartiality and that how it is affected
and threatened in various situations.
The authors have failed to be static on the aspect of the title they have
chosen. The title reflects the idea that the discussion would be on independence of judiciary. But then further in
the chapter, they have discussed about free speech and judiciary. Hence we will discuss about the independence of judiciary in the paper and reflects
its difference with other nations.
2.
JAISING, INDIRA. “National Judicial Appointments
Commission: A Critique.” Economic and Political Weekly, vol. 49, no. 35, 2014, pp. 16–19. JSTOR,
http://www.jstor.org/stable/24480485. Accessed
18 Sept. 2023.
Indian Politics
and Society Since Independence: Events,
Processes and Ideology
By Bidyut Chakrabarty
With seven chapters, the book is thematically structured and
empirically elaborated, which discusses The text is about the history and challenges of democracy in India, from its independence
and partition to its present-day diversity and coalition politics. It explores how India has
managed to sustain and strengthen its democratic system despite its colonial legacy, communal conflicts, regional variations and
ideological differences. It also analyzes the role of various political
actors and institutions in shaping India’s
democracy.
The article fails to The comparison and contrast of the different models
and methods of judicial appointments in India and other democratic countries,
and their implications for the
independence, accountability and diversity of the judiciary.
The challenges and opportunities of
coalition politics in India, in terms of managing the conflicts and compromises among various regional,
ideological and interest-based parties, and their impact on the policy-making and governanceThis book presents a historical analysis
of the interplay between
colonialism, nationalism and democratization
in India, from the colonial
period to the post-independence era. It argues
that India’s parliamentary
democracy, based on the Westminster model, was not a mere copy, but a context-sensitive adaptation that reflected
the specific challenges and opportunities of a newly decolonized
nation. The book illustrates this
argument by examining the
constitution-making process of the Constituent Assembly, which aimed to embody
the nationalist and democratic ideals of the Indian
people.
The book also discusses the reasons why federalism was not considered a
suitable form of governance for India, given the perceived threats to its national unity
and security. The book
suggests that the constitution-makers opted for a strong central government, as they believed
that the constitutional structure of a country
should serve ‘the normative functional requirements of governance’.
3.
Weiden, David L. “Judicial Politicization, Ideology,
and Activism at the High Courts of the United States,
Canada, and Australia.” Political Research Quarterly,[3]
This
article presents a novel theory that challenges the prevailing view and claims
that informal norms are more
influential than formal mechanisms in cross-national comparison. While it is widely
accepted that judicial appointment
systems have a significant impact on state court judges in America, this article contends that in
a cross-national perspective, the
“selection culture” inherent in a
modern democratic political system is more important than the formal selection methods. The selection culture refers to
the extent to which the appointing executive relies on ideological and partisan criteria or on other factors, such as
qualifications and merit, to select judges.
In other words, a country’s judiciary is highly politicized if the judges are
chosen by the executive based on partisan considerations, while another
country’s judiciary is less politicized if
the judges are selected based on nonpartisan factors.
The
logical implication of this argument is that judges in a highly politicized
judiciary will tend to decide cases based on their ideology or
attitudes, and judges in a less politicized judiciary will be less likely to do so. Therefore, the
main proposition of the judicial politicization theory is that judges on a highly politicized high
court in an established democracy are more likely to decide cases according to ideological/attitudinal
factors, and will consequently be more likely to engage in judicial activism and invalidate acts of the legislature
when the challenged law is contrary to the judge’s ideology.
Hypothesis:
1)
Does the concept
of judicial accountability incompatible with the notion of judicial independence?
2) Are the judicial appointments dependent on the legislative framework?
Reasons for comparative study
1.
To understand the different models
of judicial appointments in different political
and legal systems, and how they affect the independence, accountability and quality of the judiciary.
2.
To evaluate the strengths and weaknesses of the collegium
system in India, which is unique among the three countries, and compare it.
3. To explore
the challenges and opportunities for judicial reforms
in India, practices
and experiences of Uk
and USA
Scope of the Research:
The
research paper aims to conduct a comparative study of judicial appointments in
India, UK, and USA, with reference to the center and collegium system.
Limitation of the Research:
The
research paper is limited by the availability and accessibility of data and
information on judicial appointments in the three countries, which may vary in
terms of quality, reliability, and transparency.
The research paper is also limited by the time and resources
available for conducting a comprehensive and
in-depth analysis of judicial appointments in the three countries, which may require
more extensive and diverse methods
and sources.
The research paper is further limited by the scope and complexity of the
topic, which may not cover all aspects and dimensions of judicial appointments in the three countries,
such as historical, cultural, or institutional factors.
The research paper is therefore not intended to provide a definitive or
conclusive answer to the question of
judicial appointments in India, UK, and USA, but rather to offer
a comparative perspective and insight into the issue.
Introduction
Three
major ideological influences seem to have been critical in Indian politics:
colonialism, nationalism and democracy. Indian politics has been shaped by three major ideological
influences: colonialism,
nationalism and democracy. These three ideologies have defined ‘the political’
in India both during and after the
colonial period. However, two points should be noted. First, colonialism
and nationalism were not simply opposed to each other, but rather colonialism created the conditions for the emergence of
nationalism as a powerful ideology to express the voices of the colonized. Second,
colonialism also initiated
a gradual process
of democratization by gradually
involving people who were sympathetic to
the foreign administration. The colonial state had allowed some forms of representation to carefully selected
Indian interests. The 1935
Government of India Act, which was inspired by the British North America
Act, 1867, that established the Canadian federation, was a
significant constitutional intervention that the colonial rulers
made to accommodate the nationalist fervour within, of course, the
colonial administrative framework. This also shows the attempts to
legitimize the growing democratic aspirations of the ruled in India through a constitutional intervention. Interestingly, the 1935 Act remained the strongest
influence during the making of the 1950 Constitution for free India.
The power of judicial review,
which is the authority of the courts to
interpret the constitution and declare any law or executive action as
unconstitutional, is influenced by the American model of constitutional supremacy and separation of powers
The system
of judicial appointments in India affects the independence,
accountability, and quality of the judiciary. The current
system, called the collegium system, consists of a group of senior judges of the Supreme
Court and the High
Courts recommending candidates
for judicial appointments to the President, who has a
limited role in accepting or rejecting them. This system has faced criticism
for being secretive, unrepresentative, and susceptible to nepotism and favoritism. However,
it has also been praised for protecting the autonomy and integrity of the judiciary
from political interference and pressure.
The merits and demerits
of the collegium system can be evaluated based on four criteria: transparency, representation, diversity,
and efficiency. Transparency denotes
the degree of openness and accountability in the selection process, such as the criteria, methods, and outcomes
of the recommendations. Representation denotes
the extent to which the judicial appointments reflect the diversity and interests of the society, such as the
regional, gender, caste, and religious backgrounds of the judges.
Diversity denotes the variety of perspectives and experiences that the judges bring to the bench, such as their
legal education, professional expertise, and social awareness. Efficiency denotes
the speed and quality of the judicial
appointments, such as the timeliness, accuracy, and fairness
of the recommendations.
The collegium system has been found to be deficient in transparency, as
there is no clear or consistent basis
for the selection of candidates, no formal or public consultation with stakeholders, and no mechanism for review
or appeal of the recommendations. The system has also been found to be unrepresentative, as the judges tend to
nominate candidates from their own regions,
communities, and networks, resulting
in a homogeneous and elitist judiciary that does not reflect the diversity and aspirations of the society.
The system has also been found to be inefficient, as the collegium often delays
or fails to fill the vacancies in the courts, leading to a huge backlog of cases and a loss of public
confidence in the judiciary. The system has some advantage in terms of diversity, as the judges may have a
wider and deeper understanding of the
legal issues and challenges facing the country, and may be more independent and
impartial in their judgments.
The alternative models of judicial
appointments that can balance the interests and roles of the executive, the legislature, and the judiciary are based on the
principle of separation of powers and
checks and balances. These models include the parliamentary model, the
presidential model, the commission
model, and the hybrid model. The parliamentary model involves the executive and the legislature having a greater
say in the selection of judges, such as by proposing, vetting,
or confirming the candidates. The presidential model involves the
executive having the sole authority
to appoint judges, subject to the approval or rejection of the legislature. The commission model involves an
independent and diverse body of experts and representatives from various sectors
and institutions recommending candidates to the
executive, who has a limited
power to accept or reject them. The
hybrid model involves a combination
of these elements, such as by having
a commission propose candidates to
the executive, who then nominates them to
the legislature for confirmation.
The potential and desirable reforms that can enhance the judicial
appointments system in India are
based on the principle of judicial independence and accountability. These
reforms include the following:
·
Establishing a transparent and objective criteria
for the selection of candidates, such as their qualifications, experience, integrity, and suitability for the judicial
office.
·
Creating a judicial appointments commission that is independent, diverse, and representative of the society,
such as by including members
from the judiciary, the executive,
·
the legislature, the bar, the academia, and the civil society.
·
Providing a formal and public consultation process
with stakeholders, such as by inviting nominations, applications, comments, and feedback from the public
and the relevant institutions and bodies.
·
Instituting a mechanism for review and appeal of the
recommendations, such as by allowing
the executive, the legislature, or the candidates to challenge or question the
decisions of the commission or the collegium.
·
Reducing the delays and vacancies in the judicial
appointments, such as by setting a time
limit for the completion of the
selection process and filling the existing and anticipated vacancies
in the courts.
Constitutional aspect of
appointments in UK, USA and India:
UNITED KINGDOM:
The UK model of appointments was the main source of inspiration for the Indian model.
In the UK, the Queen appoints judges
on the advice of the Prime Minister, who receives recommendations from an independent Judicial Appointments
Commission (JAC). The JAC is a statutory
body established by the
Constitutional Reform Act 2005, which selects candidates for judicial
office based on merit, fairness
and diversity. The JAC consists
of 15 members, including judges,
lawyers and lay members. The JAC
is responsible for appointing judges to the High Court,
the Court of Appeal, the Supreme Court and other tribunals in England and Wales. The JAC also assists the Lord Chancellor
in appointing judges to the lower courts, such as the Crown Court and the County Court. The JAC does not have any role in appointing judges to the courts
in Scotland and Northern Ireland,
which have their own separate
systems of judicial
appointments.
United States of America: The judicial appointments in the USA are made by the President, with the advice and consent of the Senate. The President nominates candidates for federal judgeships, including the Supreme
Court, the Courts of Appeals,
the District Courts and other specialized courts. The Senate Judiciary Committee
conducts hearings on the nominees and votes on whether to report them favorably to the full Senate. The Senate then debates and votes on the confirmation of the nominees. The
President also appoints judges to the territorial courts and the Court of Appeals
for the Armed Forces, but these appointments do not require Senate confirmation. The President does not have any role in appointing judges to the state courts,
which have their own systems
of judicial selection, varying from state to state.
According to Article II, Section
2, Clause 2[4] of the United States
Constitution, the Appointments Clause
grants the President of the United States the authority to propose and, with
the approval (advice and consent) of the United States Senate, to appoint public
officials, including justices of the
United States Supreme Court. The Constitution does not specify any criteria for
serving as a justice, therefore
the president has the discretion to
nominate any person to the Court. The nomination and confirmation process
consists of several
stages, such as the pre-hearing investigation, public
hearings, committee decision, and Senate vote. The process usually lasts for several
months, but it can differ depending on the situation. The process for
replacing a Supreme Court justice
receives significant public interest and is closely
examined.
This article argues that in
cross-national perspective, formal selection mechanisms are less important than the “selection culture”
inherent in a modern democratic political system. The selection culture refers to the extent to which the appointing
executive relies on ideological and partisan
factors or on other factors, such as qualifications and merit, to choose
judges. In other words, a country’s
judiciary is highly politicized if the judges are chosen by the executive based on partisan considerations, while another
country’s judiciary is less politicized if the judges are selected
based on nonpartisan factors. The logical implication of this argument
is that judges in a highly
politicized judiciary will tend to decide cases based on their ideology or
attitudes, and judges in a less politicized judiciary
will be less likely to do so.
India:
The
constitutional provision of judicial appointment in India is based on Articles
124[5]
and 217 of the Constitution, which state that the judges of the Supreme
Court and the High Courts are appointed by the President in consultation with
the judiciary. However, the Supreme Court has interpreted the word
"consultation" to mean that the judiciary has the primacy in the
appointment process, through a system of collegiums. The collegium system is a
method of collective decision - making by the senior-most judges of the Supreme
Court and the High Courts, who recommend the names of suitable candidates to
the President for appointment[6]
The collegium system has been criticized for being opaque, arbitrary, and
nepotistic, and several attempts have been made to reform it. One such attempt
was the National Judicial Appointments Commission (NJAC), which was a
constitutional body proposed to replace the collegium system with a more
transparent and accountable mechanism involving the executive, the judiciary,
and the civil society. However, the NJAC was struck down by the Supreme Court
as unconstitutional, on the ground that it violated the independence of the
judiciary. The President is bound by the recommendations of the Collegium,
unless there are valid reasons for returning them for reconsideration. The
President also appoints the Chief Justice of India, based on the principle of
seniority. The President does not have any role in appointing judges to the
subordinate courts, which are under the control of the respective High Courts
Provisions taken from UK and USA model by India:
India has
borrowed some features of the UK and USA models of judicial appointments, while
also developing some unique elements of its own. Some of the provisions taken
from the UK model are:
·
The appointment of judges by the President,
who acts on the advice of the Prime Minister or the Cabinet,
similar to the role of the Queen in the
UK. However, unlike the UK, where the Prime Minister receives recommendations from an independent JAC,
the President of India receives
recommendations from the Collegium, which is a body of judges.
·
The appointment of judges based on merit,
fairness and diversity, as stated in the Constitution of India and the judgments
of the Supreme Court. However,
unlike the UK, where
the JAC has a transparent and objective process of selecting candidates,
the Collegium system in India has been criticized for being opaque
and subjective.
·
The appointment of judges by the President, with the advice and consent of the Parliament, similar to the role of the Senate in the USA. However, unlike the USA,
where the Senate has a significant
role in scrutinizing and confirming
the nominees, the Parliament of India has a limited
role in the judicial
appointments process. The Parliament can only impeach a judge
for proven misbehavior or incapacity, but cannot reject a nominee
on any other grounds.
·
The appointment of judges for life, subject to retirement age, as provided
in the Constitution of India and the judgments of the Supreme
Court. However, unlike the USA, where the judges of the
Supreme Court and the Courts
of Appeals have life
tenure, the judges of the Supreme
Court and the High Courts
in India have a fixed retirement age of 65 and 62 years respectively.
How far are we following the UK
model?
India is
following the UK model of judicial appointments to some extent, but with
significant differences and deviations. Some of the similarities and
differences are:
·
Both India and the UK have
a system of appointment of judges by the head of the state, on
the advice of the head of the government,
who receives recommendations from a body of experts. However,
while the UK has an independent and statutory JAC, which consists
of judges, lawyers and lay members, India has a non-statutory and
self-regulating Collegium, which consists
of only judges.
·
Both India and the UK have a system
of appointment of judges based on merit, fairness
and diversity, as per the constitutional and legal principles. However, while
the UK has a clear and objective
criteria and process
of selecting candidates, which involves public
advertisement, application, shortlisting, interview and consultation, India has a vague and subjective criteria
and process of selecting candidates, which involves no public disclosure, nomination, consultation
and recommendation.
Provisions taken from USA model by India:
India has
adopted some features of the USA model of judicial appointments, but with
significant modifications and adaptations. Some of the provisions taken from
the USA model are:
·
The appointment of judges by the President, with the
advice and consent of the Parliament, similar to the role of the Senate in the
USA. However, unlike the USA, where the Senate has a substantial role in
scrutinizing and confirming the nominees, the Parliament of India has a
marginal role in the judicial appointments process. The Parliament can only
impeach a judge for proven misbehavior or incapacity, but cannot reject a
nominee on any other grounds.
·
The appointment of judges for life, subject to
retirement age, as provided in the Constitution of India and the judgments of
the Supreme Court. However, unlike the USA, where the judges of the Supreme
Court and the Courts of Appeals have life tenure, the judges of the Supreme
Court and the High Courts in India have a fixed retirement age of 65 and 62
years respectively.
Applicability in today’s
era:
The current
system of judicial appointments in India is not very applicable or suitable in
today’s era, as it suffers from various problems and challenges, such as:
·
Lack of
transparency and accountability:
The
Collegium system is shrouded in secrecy and opacity, as there is no public
disclosure of the names, criteria, process and reasons for the selection of
candidates. There is also no mechanism for public feedback, complaints or
review of the decisions of the Collegium. The Collegium is not accountable to
anyone, except itself, for its actions and outcomes.
·
Delay and
deadlock:
The
Collegium system is prone to delay and deadlock, as there is no time limit or
deadline for the Collegium to make recommendations, or for the President to
accept or return them. There is also no provision for resolving any
disagreement or conflict between the Collegium and the President, or within the
Collegium itself. This leads to a huge backlog and vacancy of judicial posts,
affecting the functioning and efficiency of the judiciary.
·
Nepotism
and favoritism:
The
Collegium system is susceptible to nepotism and favoritism, as there is no
objective or uniform criteria for the selection of candidates, and the
Collegium members may have personal or professional biases or preferences.
There have been allegations and instances of the Collegium recommending
relatives, friends or associates of the judges, or overlooking merit and
seniority of other candidates.
Whether there is need of reform in
these system or not?
There is an
urgent need of reform in the system of judicial appointments in India, as the
current system is not consistent with the constitutional values, democratic
principles and contemporary realities. Some of the possible reforms are:
·
Establishing a statutory and independent Judicial
Appointments Commission (JAC), which would consist of judges, lawyers,
eminent persons and representatives of the executive
and the legislature. The JAC would be responsible for selecting and recommending candidates for judicial appointments, based on merit,
fairness and diversity. The JAC would also have a transparent and objective process of selection,
which would involve
public advertisement, application, shortlisting, interview and
consultation. The JAC would also have a mechanism for public feedback, complaints and review of its decisions.
·
Setting a time limit
or deadline for the JAC to make recommendations, and for the President
to accept or return them. There should also be a provision
for resolving any disagreement or conflict between the JAC and the President,
or within the JAC itself, through
dialogue, mediation or arbitration. This would ensure a speedy and
smooth process of judicial appointments, and reduce the backlog
and vacancy of judicial posts.
·
Introducing a system of parliamentary scrutiny and
confirmation of the nominees for judicial appointments, similar to the role of the Senate in the USA. The Parliament would have the power to question,
debate and vote on the confirmation of the nominees, based on their
qualifications, integrity and suitability. The Parliament would also have the power to reject a nominee
on valid grounds,
such as lack of merit, misconduct or incompatibility.
Conclusion
The
judiciary is an important pillar of democracy, as it upholds the rule of law,
protects the rights and freedoms of the people, and checks and balances the
other branches of government. However, the judiciary also faces various
challenges and pressures, such as political interference, corruption,
inefficiency, and lack of diversity. Therefore, the system of judicial
appointments, which determines how judges are selected, appointed, and removed,
is crucial for ensuring the independence, accountability, and quality of the
judiciary. Different countries have different models of judicial appointments,
reflecting their historical, constitutional, and political contexts. This
research paper aims to conduct a comparative study of judicial appointments in
India, UK, and USA, with reference to the center and collegium system. The
paper will examine the advantages and disadvantages of each system, and explore
the possibilities and challenges for judicial reforms in India, drawing from
the practices and experiences of UK and USA. The paper will also address the
research questions of whether the concept of judicial accountability is
incompatible with the notion of judicial independence, and whether the judicial
appointments are dependent on the legislative framework. The paper hopes to
contribute to the academic and public debate on the issue of judicial
appointments, and to provide some suggestions and recommendations for improving
the system in India.
[2] Marilyn warren,
‘Unelected does not equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary’ (2008)
13(2) Deakin Law Review
1,13
[3] Weiden, David L. “Judicial Politicization, Ideology, and Activism at the High Courts of
the United States, Canada,
and Australia.” Political
Research Quarterly, vol. 64, no.
2, 2011, pp. 335–47. JSTOR, http://www.jstor.org/stable/23056395.
Accessed 13 Nov. 2023 .
[4] He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present
concur; and he shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall
be established by Law: but the Congress
may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
[6] Judicial Appointments in
India - Study IQ Education. https://www.studyiq.com/articles/judicial
- appointments-in-india/.
Article Information
JUDICIAL APPOINTMENTS IN INDIA, UNITED KINGDOM AND UNITED STATES OF AMERICA: A COMPARATIVE STUDY WITH REFERENCE TO CENTRE AND COLLEGIUM
Authors: JYOTSANA AGRAWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.