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Published: Fri, 02 Feb 2018
Review of Judicial Appointments India, United Kingdom and US
In the cycle of governance the role of the judiciary is of paramount importance. The role of the judiciary is not just to enforce the law but to protect the interests of the human society which cannot be achieved without a robust and independent judiciary. The judiciary plays the dual role of acting as a counter check mechanism to monitor the actions of the legislature as well as a decisive role in the administration of the country. For the role of the judiciary, as a monitoring mechanism for the actions of the legislature, the appointments to the judiciary should be free from legislative control or minimal legislative control. It is true that the legislature has the power to make the laws, but this doesn`t mean that the legislature should have absolute control.
In India, keeping with the spirit of the independence of the Judiciary, the collegium of the corresponding Court plays the decisive role in judicial appointments. But time and again issues of non-transparency in the appointments to the judiciary especially when it comes to appointments in the higher judiciary have come to public domain.
This article looks at the procedures followed in India as well as in couple of civilized legal systems of the World namely the US and the UK.
Indian Judicial System:
The Constitution of India  lays down that the President shall, in consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary, appoint the Judges to the concerned Court. In case of appointment to High Court the President has to also consult the Governor of the concerned state. When it comes to appointment of the Chief Justice of India itself, the custom is to choose the senior most Judge of the Apex court. The word “consultation” herein has been interpreted such that, today, a collegium of Judges in the Apex Court and various High Courts are responsible to recommend the names for the appointment of Judges. The two judgments  of the Apex court have basically made this the rule of law. The President is basically bound to accept the names recommended by the collegium. The President may refer back the names so recommended for reconsideration. In the case of a bill re-approved by the Houses the President is bound to assent the bill similarly he has to assent to the names re-approved by the collegium. Though it seems that the power of the President has been highly curtailed as well as the role of legislature is negligible, a compelling reason by the cabinet to not accept a name for the judicial post can stall the appointment of such a person. This pretty much settled the question of who held the primacy for nomination of candidates to the judiciary.
The next important question decided in these judgments was: how should the Chief Justice exercise the power of consultation endowed upon him. He is expected to obtain the views of the senior most Judges of the Supreme Court, more so if a Judge is from the same High Court as that of the nominee for the appointment. Similarly in case of appointment to the High Court the views of the Supreme Court Judges conversant with the affairs of such High Court as well as the opinion of the Chief Justice and the senior most Judges of such High Court are given at most consideration. The judgment  further provides that the Chief Justice of the High Court must form his opinion after ascertaining the views of at least the two senior most Judges of the High Court. Also recommendation is provided to maintain seniority information among the Judges in a particular High Court as well the overall seniority among all High Court Judges which would aid in case of subsequent appointments to the Supreme Court. Such seniority information is also recommended to be maintained for the Supreme Court.
The process of appointment is initiated by the Chief Justice of India in case of Supreme Court and the Chief Justice of the High Court in case of a High Court. The copies of such proposal needs to be sent to all the constitutional functionaries involved wherein they must provide their opinion within 6 weeks from the receipt of the same. In case of a disagreement by any of the functionary, further 6 weeks is provided for the other functionaries to reconsider their opinion. The Chief Justice then forms his opinion within 4 weeks and conveys the same to the President. All such procedure is expected to be completed one month prior to the date of anticipated vacancy. With respect to this procedure, suggestion was provided to issue a memorandum of procedure by the Government of India in consultation with the Chief Justice of India.
The judgment makes it quite clear that the Chief Justice cannot push his own mandate in the appointment without the consent of the other senior judges in the collegium. If the other judges in the collegium are unanimous in their decision on the appointment or non-appointment of a candidate, the executive can accept their decision as against that of the Chief Justice.  There is further mandate on putting all these consultation in writing for due circumspection. These checks and balances should ideally assure the selection of the most suitable candidate for the judicial posts. Why then is a question being asked on the selection process, is it because the judiciary is outgrowing itself, that its decision are outside the purview of the common man leave alone the other wings of the Parliament.
In our opinion one reason for this is the lack of transparency and due diligence in the selection process by the collegiums. Once the collegiums shortlists the name, the same is forwarded to the Apex court. In case of selection of a candidate from lower judiciary their judgments so far delivered are analyzed. In case of selection from the Bar, lawyers of high standing and experience are considered. But is there a standard laid down for the collegiums to follow, a step by step process to be followed for the selection of the right candidate, an appraisal system that makes sure the person is of high caliber? The less arbitrary a process is, the more efficient it will be.
Recent controversies of the retired Honorable Justice A.P.Shah of New Delhi High Court being not promoted to the Apex court has raised the questions on the insufficiency of the current process. Regarding his non-appointment to the Apex Court, a constitution expert opined “It is travesty of Justice. Collegium works on rumors not facts”. The general feeling existing is that a candidate must at least be informed of the reason for his rejection by the collegium.
In the current scenario the main contention to such a selection process is the transparency of the collegium and the limited role of the legislature. The discontent legislature intends to increase its role in the judicial appointment by bringing about legislation as well as the Indian Judicial Service in the lines of the Indian Administrative Services. Such steps mandate a look at the other judicial systems of the World and how appointments of the higher courts in such systems are accomplished.
UK Judicial System
The appointments to the higher judiciary in UK were until recently made on the recommendation of the Lord Chancellor in consultation with the Lord Chief Justice. The principle challenge for the chancellor was to make sure that the appointments did not carry the color of politics as he himself held a political post. But after 2005, the appointments are governed by The Constitutional Reform Act 2005. The act has also reduced the experience criteria for the appointments of the Judges, the intention being to bring in diversity to the Bench. Before the 2005 Act, a barrister to be considered for appointment to the Courts of Appeal required an experience of 10 yrs. But this criteria being set is more than just sufficient for the selection. It requires extensive experience, standing, unindenting integrity in the profession.
The Constitutional Reform Act 2005: 
Reading this act gives a fair impression of how a legislature can guide or help the judiciary in the appointment process of a Judge. It also indicates how important it is to keep this process almost independent of the executive and legislature as well as give the judiciary the important role of selecting the right candidates. Prior to this the Government through the office of the Lord Chancellor had a major role to play in the appointment process which many a times resulted in political appointments into the judiciary. This act indicates the importance of achieving the independence in the functioning of the judiciary as well as judicial appointments.
First and foremost the act recommends the setting up of the Supreme Court of U.K. This is intended to sever the judicial role exercised by the House of Lords prior to the act which would now be taken up by the Supreme Court. The first members of the court are the 12 persons who are then the Law Lords.
Judicial appointments as per the new act:
Supreme Court: The Prime Minister shall recommend the names to the Queen. But this shall be preceded by an elaborate process conducted by a selection commission. The commission shall consist of five members consisting of the President and Deputy President of the Supreme Court and representatives of the Judicial Appointments Commission. The process involves the mandatory consultation with the senior Judges, the Lord Chancellor and the devolved executives (S.27 (2)). Though the role of Lord Chancellor has been curtailed he can exercise some power with regards to the appointment: he can reject the name of a person if he considers the person unsuitable or he may require the commission to reconsider a recommendation on any key matters. Once the name is rejected, the commission cannot propose the name again but on reconsideration if the name is proposed Lord Chancellor must oblige.
Part 4 of the act provides for the judicial appointments. It mandates the creation of a judicial appointments commission which is to play the key role in all the judicial appointments, except to the Supreme Court. It shall consist of a a lay Chairman (“lay” means someone who has never held judicial officer or been a practicing lawyer) and 14 other members which includes 5 Judges (one each from Court of Appeal and High Court, one from either Court of Appeal or High court, one circuit judge and one district judge), 2 practicing lawyers, 5 lay members, 1 legal tribunal member and 1 lay magistrate. The general rules to make appointments have clearly been laid down from S.63-97 of the act. Separate rules apply to appointment of Judges at different levels. There is also provision for making any complaints on the appointment process. Such complaints may be made only by the person affected adversely in the selection process.
The selection procedure of Lord of Chief Justice, Heads of Division and the Lord Justices of Appeal are laid down from sections 67-84 of the new act. The Lord Chancellor is given the power to issue guidance to the Commission or the selection panel regarding identification of the candidates as well as assessing them. The Chancellor requests the Commission to select a suitable person for appointment as the Lord Chief Justice and such request must be with the consultation of the Lord Chief Justice (unless it is vacant or is incapacitated). In case of senior appointments a special selection panel is formed from the Commission which includes senior most judges , Lord Chief Justice (or his nominee), Chairman of the Commission and a layman from the commission. They then make a report as per the form approved by the Lord Chancellor.
The selection process may go up to 3 steps wherein a Chancellor may opt to reject or request reconsideration of the names proposed by the selection committee. In step 1 if the Lord Chancellor rejects or requests reconsideration, process enters step 2. In this step, when a name is recommended, Lord Chancellor may accept the name, reject it (if power of rejection not used in step1) or request reconsideration (if the same has not been exercised in step 1). Now if he rejects or requests reconsideration, the selection process enters step3. This time he must accept the latest candidate selected by the selection panel or from the candidate selected in step 1 or 2 whose name was not resubmitted by the panel after reconsideration but who has not been rejected. The highlight of this is that the Lord Chancellor cannot arbitrarily reject or request reconsideration of a candidate. He can reject a candidate only if he is not considered suitable for the office concerned and request for reconsideration only if there is not sufficient evidence on the candidate’s suitability to the office concerned or on merit that the candidate may not be the best suited for the position. Anyhow these provisions do not prevent the rejected candidate or candidate who was withdrawn on reconsideration from being selected for appointment on a subsequent occasion of request for selection by the Lord Chancellor.
US Judicial System
The United States is governed by a federal system, the federal government and the governments of the fifty states of the United States make and enforce the law. Similarly in the United States there exist two distinct forms of judicial systems; i.e. the Federal Courts and State Courts. At State level there is a variance in the hierarchy of the courts. A typical judicial hierarchy in the states would include the Justice of Peace also known as Magistrate or Squire at the bottom, at the next level would be the Municipal Court, next would be the County Court and at the topmost ladder would be the State Supreme Court.
At the federal level there are two types of courts, constitutional courts and legislative courts. The constitutional courts are established under Article III of the United States constitution whereas the legislative courts are established under Article I of the constitution. The legislative courts are part of the constitutional appellate structure; the purpose of these courts is to help in the administration of particular statues. The legislative courts are basically non-judicial or quasi-judicial bodies. The role of constitutional courts is one of pure judicial nature. The most important distinction between the two forms of federal courts is that the judges of the constitutional courts hold their offices till death or vacate the office by resignation or by impeachment by the House of Representatives and conviction by the Senate.
The constitutional courts comprise of the three main courts, the Supreme Court, United States Court of Appeals and the United States District Courts.
The appointments to the Federal Courts are pure political appointments. Under the constitution Articles II the President has the power to choose the candidates for the judicial offices; the choice of the President to the judicial office is subject to confirmation of the choice by the Senate. The Senate has the power to veto the choice made by the President. Usually the Presidents choose Judges who tend to have an ideology similar to that of his own.
At the state level appointment of Judges varies with state to state. In some other states the judges are appointed by the process of election while in some states the legislatures elect them. In some of the states the governor has full discretion in the appointment of judges.
Judicial Appointment: Merit Plan or the Missouri Plan:
The Merit Plan or the Missouri Plan as it is popularly known used in the judicial appointments in the US state of Missouri is a fine balance between the executive process and the elective process of appointment of judges. Nonpartisan nominating boards or commissions take the initial step in the nomination process. These boards usually consists of the Chief Justice of the state supreme as Chairman, three lawyers appointed by the state bar representing the states appellate districts and three laymen appointed by the Governor. The members of the board are unsalaried and serve for staggered six-year terms of office, the commission members nominate three candidates for every vacant judgeship to the governor, who is obliged to choose one of them to serve for one year. After this one year period the appointed judge faces the electorate, without any political affiliations. The question on the ballot is whether the judge should be retained or not. If he is elected he can continue in office. The judge then serves a definite term of twelve year. 
Judicial Appointments: California Plan:
Under the California plan of judicial appointments the governor has complete discretion to choose his nominee for the judicial office. But the choice of the governor is subject to the approval to a three member committee comprising of the Chief Justice of the State Supreme Court, the Presiding Officer and the Attorney General of the State.
The Governor nominates one individual per vacancy. The nomination is then deliberated by the three member committee.
The nomination once approved by the committee, the nominee is declared to be appointed for a provisional period of one year. At the year`s end the appointee stands for popular election on a nonpartisan, non-contested ballot for a full term usually of 12 years. 
Judicial Appointments: Federal Courts:
Under the Article II of the American constitution the President of the United States has full discretion in choosing candidates to fill the vacancies in judicial offices. The choices of the Presidents have traditionally been of those judges who share the same ideology that of his and his party. On the face of it most of the judicial appointments are the President’s personal choices, but such an important responsibility is carried out by the President in consultation with many other people. The President considers the judicial nominations with friendly political leaders of the nominee`s state, his attorney general and also at times with the sitting members of the court. The nominee`s appointment is subject to the approval of the Senate. Between the President`s selection of his nominee for the judicial office and the subsequent confirmation by the Senate, there are lot many factors that shape the appointment process.
There are many persons involved in the appointment process. Members of the Senate and House of Representatives, political leaders of the President`s own party from the nominees home state, Governors and Mayors, members of the court where the appointment is being made, public and private groups which lobby for the selection of a candidate of their choice.
1) Role of Individual Senators:
As the power to choose a nominee to fill a vacancy in any judicial office is that of the President, the President cannot succeed in getting his nomination confirmed if he does not have the approval of the political leaders of his own party especially the Senators for the home state of the nominee.
In ideal circumstances the President would be successful in getting his nominee confirmed if the Senate is not hostile to his choice, but if the choice of the nominee made by the President does not go down well with any Senator especially the Senator of the home state of the nominee and if the President persists in taking forward the nomination, almost certainly the Senator would invoke “ Senatorial Courtesy“ which puts the nomination at risk of being out rightly rejected.
Senatorial courtesy is based on the assumption that the Senate will jointly condemn an affront to one of its members by defeating the measure before it provided, however that the aggrieved members offers a reasonable cogent explanation. When the defeat of a judicial nominee is at stake, the condemnation customarily issued is that the nominee or the way he has been chosen is “personally obnoxious“. Numerous instances of the application of Senatorial courtesy are on record, with the practice at least partially accounting for rejection of several nominations to the Supreme Court. Reuben H. Walworth(1844), George W. Woodward(1845), William B, Hornblower(1893), Wheeler H. Peckham(1894) and Joseph P. Drucker(1951) and Cornelious J. Harrington(1951) are those whose nominations were the victims of Senatorial courtesy. 
The Senatorial courtesy is sort of a bargaining chip in the hands of the Senators. Most of the Senators do want to have direct say in the judicial appointments being made in their home state. Senatorial courtesy works as a deal maker for the Senators wherein they don`t oppose the nominees of the President for the supreme court on an assurance that a nominee of their choice is considered for appointment.
2) Role of the American Bar Association:
A very influential role is played by the American bar association`s committee of federal Judiciary. Established during President Truman`s initial incumbency in 1945-46 as the special committee on federal Judiciary. 
The role of the committee is to evaluate the nomination made by the President. The ratings given by the committee do play a significant role in the appointment process. The role of the committee is more of an advisor and not a mandatory procedure in the appointment process. The committee scrutinizes candidates on the high standards of integrity, judicial temperament and professional competence. The President or the Senate is not bound by the opinion expressed by the committee on any candidate. The proceedings of the committee are in camera.
3) Role of the sitting members of the Judiciary:
The sitting members of the Judiciary have played key role in appointments process. The sitting members either on their own initiative or at the initiative of the government have advised the government on possible candidates. Records show of sitting chief justices and have played influential role in the appointment of their successors and associate justices.
In 1853 associate Justices John Carton and Benjamin R. Curtis not only personally urged President Peirce to nominate John A Campbell but accompanied their pleas with supportive letters from all of the remaining sitting justices regardless of political or sectional persuasion. 
The champion influencer till date has unquestionably been William Howard Taft, the only person to have served both as President (1901-13) and as Chief Justice of the United States (1921-1930). William Taft was influential in the appointments of George Sutherland (1922), Pierce Butler (1922) to the Supreme Court during President Harding’s tenure. Charles Evans Hughes successfully urged Franklin Roosevelt to promote Associate Justice Evans Harlan F. Stone to Chief Justice when he stepped down in 1941. 
Chief Justice Earl Warren was an influential participant in President Kennedy`s decision to nominate Secretory of Labor Arthur J. Goldberg to succeed Mr. Justice Frankfurter on the bench. He was also involved in President Johnson`s unsuccessful selection of Abe Fortas to succeed him in 1968. 
At this juncture it is worthwhile to ponder over the the view expressed by Dr. Ambedkar while drafting Art.124 of the Constitution: “The circumstances in which we live today, where the sense of responsibility has not grown in the same extent we find in the Unites States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, i.e. merely on the advice of the executive of the day.
Similarly it seems to me that to make every appointment which executive wishes to make subject to the concurrence of the legislature is also not a very suitable provision.”
The question is not who has primacy in the selection of the Judge, but it must be who is best suited to select the right candidate. Just because a businessman owns a Hospital it is quiet absurd to claim that he can appoint the medical staff to the hospital. It is best to leave the task to the competent medical personnel to make the appointment and the owner remain as a check to make sure that the appointments are not arbitrary and improper. So too with the Judiciary, the Senior Judges are the most competent to analyze the suitability of a candidate, the executive must serve as a dedicated check post Guard to make sure unwarranted names do not cross the border. If the collegium itself is subject to arbitrariness, like in the case of promotion of Justice A.P.Shah of the Delhi High Court, then vesting such power with the highly partisan legislative and executive could be detrimental to the independence of the Judiciary.
In our opinion the best is for the legislature, in consultation with the Judiciary, lay down the procedures in the appointment process wherein the Judiciary is given the role of the nominee and the executive serving as a check. The Judiciary would be most competent to assess the qualifications and judicial acumen of the candidate whereas the executive can accomplish the background check on the personal aspects of the candidate. The remodeled UK system needs to be analyzed for its pros and cons relating to the judicial appointment, especially with respect to the provision for complaining by the affected candidates, and if the same with suitable modifications can be applied to the judicial system in India. What further is required is to bring in a level of transparency in the collegium process.
_____________________________________________________________________________By, Deepak Bhavadassan, Roll No.2303, II-LL.B
& Prateek Khupse, Roll No. 2304, II-LL.B
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