In India, Art. 124 of the Constitution provide that every judge of the Supreme Court is to be appointed by the President after consultation with other judges of the Supreme Court and High Court. In case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
In case of High Court, Art. 217 provides that judge of a High Court is to be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court.
This procedure had worked fairly satisfactorily till 1993 when the Supreme Court interpreted the words “after Consultation” to mean “with the concurrence” of the Court. After this the role of the executive at the Central and State levels became marginal and the decision on the appointment of judges today rests de facto with the judges themselves.
The recent standoff between the judiciary and the executive over the appointment of judges of the Supreme Court had led the President to seek the consultation process for appointment of judges.
The nine judges Bench which heard the President’s reference held that recommendations made by the Chief Justice of India without complying with the “norms and requirements of the consultation process” were not binding on the Central Government.
Thus, it widened the consultation process among judges while limiting the role of the Chief Justice of India in the selection process. It is necessary to put an end to the controversy over the present mode of selection of the judges. The method is defective as it is not open to public scrutiny, lacks accountability and transparency.
Appointment of judges by judges themselves poses challenges to the democratic system. This may lead to the appointment of judges who hold similar ideological or philosophical positions.
The executive, the legislature, the public and the judiciary should be given an appropriate role. The system of appointment of judges should be made transparent and subject to legal scrutiny.