Higher Judicial Appointments In India
Over the years, there was a tradition of appointing judges of the Supreme Court of India largely on the basis of seniority. However when this tradition was violated in 1973 and 1976 and the senior most judge was overlooked in appointment as Chief Justice of India, even the best explanation from the executive could not submerge the public feeling that injustice has been done. Subsequent decisions have ensured that the Supreme Court is now virtually the final decision maker in the appointment process. However, of late, the issue of seniority has again come alive when the President returned the recommendation of the Supreme Court Collegium for elevation of 3 judges to Supreme Court on the ground that seniority has been overlooked without any explanation. The matter is still not settled with the Supreme Court having again returned the file with the same names reiterating that seniority is not the only criteria to be taken into consideration for appointment of judges. The stand taken by the executive in 1973 and 1976, and which evoked much criticism from the bar and the public has now been endorsed by the Supreme Court Collegium.
The ongoing debate has also raked up another issue that has been in the burner for years- who should appoint the judges? The Constitution of India has laid down that appointments to High Court and Supreme Court were to be made by the President of India in consultation with judiciary. While the fundamental principal involved in taking a decision is that the independence of judiciary should be upheld, it is doubtful whether most countries consider the appointment of judges as an integral part of the independence of judiciary. On the contrary, an evaluation of the position in various jurisdictions would show that the judicial appointments in many countries are made by the executive, with varying say of judicial, legislative and other specialist bodies/authorities. Such an appointment process is not viewed as in any way affecting the independence of judiciary in these countries.
The connection between judicial appointments and the independence of the judiciary is conceived distinctly by different countries. Each has its history. The best way to examine the way these principles are currently implemented is to distinguish between who offers advice on the suitability of candidates and who decides who is to be appointed. In his study, Oberto  offers a typology of four systems of selecting judges:
nomination by the executive
co-option by the judiciary
appointment by a committee consisting of judges and academics following a competitive process.
The typology looks clear, but, in fact, systems make use of a mix.
In fact there are fundamentally three possible models for responsibilities of a specialised body appointed to supervise the process of appointment of judges
(i). a body that selects judges for appointments but does not have the responsibility for making those appointments – the selecting model
(ii) a body responsible for selecting and appointing judges: this could be called the appointing model.
(iii) a hybrid model whereby the body would be responsible for appointing some but not all judges.
European (Continental) Position:
France: France has instituted a self-governing body to control the judicial appointments process. The body responsible for judicial appointments in France is the Conseil Superieur de la Magistrature (CSM), which consists of 12 members, comprising: 5 elected judges, 1 public prosecutor, 1 councillor of state chosen by his or her peers and 3 individuals, of whom one each are nominated by the President of the Republic, the Senate and the National Assembly. The CSM also has as ex officio members the President of the Republic and the Minister of Justice.
Italy: Italy’s self-governing body to control judicial appointments is the Consiglio superiore della magistratura (Csm). The Csm consists of 33 members, comprising 20 judges elected directly by the judiciary, 10 lawyers or university law professors nominated by Parliament, and a number of ex officio members: the President of the Court of Cassation, Prosecutor General of Cassation and President of the Republic.
Spain: Spain’s self-governing judicial appointments body is the Consejo General del Poder Judicial, which consists of 21 members, comprising 12 judges and 8 lawyers with more than 15 years experience (all appointed by Parliament), and the President of the Supreme Court as an ex officio member.
Portugal: Portugal’s judicial self-governing body is the Conselho Superior da Magistradura (CSM), which consists of 17 members, comprising 7 judges elected directly by the judiciary, 1 judge nominated by the President of the Republic, 7 non-judges nominated by parliament, 1 non-judge nominated by the President of the Republic and the President of the Supreme Court as an ex officio member.
Germany: A number of the Länder (regional governments) in Germany have Judicial Appointments Boards, which are made up of members of the judiciary, members of the Länd Parliament and members of the bar, in varying numbers. Nominees for appointment to the judiciary are recommended by the Länd Minister of Justice.
The Netherlands: The Netherlands is operating a combined system of judicial appointments, where 50% of judges are recruited from recent university graduates and the remaining 50% are appointed much later in their legal career. However, it was in the process of reforming its judicial appointments procedures, to merge the appointments process for younger recruits with the appointments process for more senior members of the legal profession, to create a single Judicial Selection Committee comprising members of the judiciary, representation from the Justice Department and external representation (for example, a journalist, university professor or member of the bar).
While the structure of recommending bodies as above gives an idea of the process involved in appointments to judicial bodies, the actual decision making in most of the European countries is by executive bodies. Europe has two main kinds of executive body either the Ministry of Justice or an independent Courts Administration Agency. The decision-maker in many cases is the Minister of Justice or the Head of the State. The decision making authority is thus vested in a political-executive is based on a view that something more than technical expertise is required for the role of judge. So, in Sweden, the senior judicial appointments are made by the Government. France’s position is formally similar, though proposals will come either from the Vice-Président of the Conseil d’Etat or the CSM with regard to the Cour de Cassation. Where the Germans have a Richterwahlausschuß, then the role of the minister is merely formal. There are thus different degrees of political involvement, and the use of advisory or even recommending bodies shields the political authority from much criticism.
Since the Portuguese reforms at the beginning of the 20th century, there has emerged a “Latin" model under which a committee composed mainly of judges decides on judicial careers. Since 1946, it has become more common for these to be created as constitutional authorities and to be involved in judicial appointments. It was adopted in France and Italy after the war and in Spain and Portugal after the fall of dictatorships. The Spanish model goes further. It involves the CGPJ (the Judiciary Agency) making the appointments and running the court system as a constitutional agency. Typically, most of the appointments are decided on the basis of seniority, so there are only a limited number of discretionary appointments at the senior level. This idea of judicial self-government is gaining ground in countries like Denmark. As in Spain, the Courts Administration Agency is responsible to Parliament for the whole organisation of justice, within the budget given by the Parliament. By contrast, the Swedish Agency is subject to directives from the Ministry of Justice. But under these systems, judicial appointments and promotions organised within an independent agency is seen as less subject to political interference.
Position in Common Law Countries:
United Kingdom: In Great Britain, on the basis of the recommendation by the Prime Minister and the Lord Chancellor, the Queen appoints qualified persons as judges on the High Court Bench and above. An important feature of the process of judicial appointment in the U.K. is consultation. Views and opinions about the qualities and work of an applicant are collected from a wide range of judges and senior practitioners in the legal profession. The appointments of Lords of Appeal in Ordinary, Heads of Divisions and Lords Justices of Appeal are by invitation. Before 1997, the appointments of Justices of the High Court were by invitation only. Applications are now also invited by public advertisement for vacancies in the High Court.
Australia: Under the Australian Constitution and those of the States, judges are appointed by the Queen or her representative. In practice, the actual decision is made by cabinet or even by the Prime Minister or Premier. There is no community consultation, no selection criteria and no transparency. As per the Policy on The Process of Judicial Appointments, 1999 of Law Council of Australia, Judicial Appointment should be a function of Executive Government performed by, or upon the advice of, the Attorney-General for the jurisdiction concerned and, subject to the following principles, discharged at the discretion of Executive Government. In addition to any statutory criteria for eligibility for appointment, the sole criterion for judicial appointment should be merit. The Attorney-General for the jurisdiction concerned, in consultation with the Chief Justice, chief judge and chief judicial officer of courts within the jurisdiction and the legal profession of the jurisdiction, should establish and make publicly available a formal Judicial Appointments Protocol which outlines the judicial appointment process in that jurisdiction. The Judicial Appointment Protocol should set out the knowledge and experience which candidates for judicial appointment must possess and those professional and personal qualities which it is desirable that candidates for judicial appointment possess.
Canada: Judicial appointments to the superior courts (trial or appellate) in each province or territory are made by the Governor General on the recommendation of the federal cabinet. Appointments to other superior courts which have jurisdiction for all Canada -the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, and to the Supreme Court of Canada which is the final court of appeal from all Canadian courts-are also made by the Governor General on the recommendation of the federal cabinet. Appointments to the provincial court in each province are made by the Lieutenant Governor of the province on the recommendation of the provincial government.
Candidates for appointment to Superior Courts in each province or territory are screened by a judicial advisory committee established for each province (Ontario and Quebec have 3 and 2 committees respectively due to their larger population) or territory. Each committee is composed of representatives of the federal and provincial (or territorial) governments, the provincial (or territorial) law society, the Canadian Bar Association, the judiciary, and the general public. In 2006, the federal government added a representative of the police to the committees.
Lawyers who meet the legal and constitutional requirements can apply, as well as existing provincial or territorial court judges. These candidates must complete a comprehensive Personal History Form which is submitted to the appropriate advisory committee. In its assessment of each candidate, the committee reviews the PHF and consults references and other persons both in and outside the legal realm. The candidate's fitness for the bench is assessed by reference to published criteria. If it wishes, the committee can also interview the candidate.
Countries with Sui Generis legal systems:
Erstwhile Communist Countries of Central Europe: In Hungary and Checz Republic, the President appoints the judges, while in Bulgeria, a judicial commission is appointing judges. In Lituania, Poland and Romania, the President appoints the judges on recommendation of a national judicial commission. In Russia, the judges are appointed by President on recommendation of Chairman of the Supreme Court who should have first obtained the permission of the legislative assembly of the region where the judge is to serve before making such recommendation. Also no one can be appointed as a judge unless nominated by a Judicial Qualification Commission of each region to which the judge is appointed. The Judicial Qualification commission of each region comprise between 9 to 17 judges elected proportionally from district and regional courts.
United States of America: The appointment of federal judges has become viewed as a political process in the last several decades. Section 2, Article II, the United States Constitution states: "[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court, and all other Officers of the United States…" All federal judges are appointed by the President of the United States with the advice and consent of the Senate. The process of appointment of a federal judge starts from the occurrence of a judicial vacancy. The Department of Justice with the White House staff recommend judicial nominations to the President. If the President approves, the nomination is signed and sent to the Senate. Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees will be investigated, testified and the nomination voted in the Committee. As the majority party in the Senate controls a majority of the committee seats, the voting results on the Committee are generally representative of the voting preference in the full Senate. Confirmation of judicial appointments requires a majority vote of the Senate. All nominations must be acted on in a session or they die at the end of the session. If a nomination is not acted upon, they must again be made to the Senate by the President. When Senate gives its advice and consent, the President signs the judicial commission which officially appoints the individual. It is also pertinent to note that in recent years the Presidential nominees to the Supreme Court of United States of America include increasing number of pure academics, who had very limited exposure to hard core litigation  .
Articles 124 and 217 of the Constitution of India deal with the appointment of Supreme Court and High Court Judges respectively. Article 124(2) of Constitution of India deals with appointments of Supreme Court judges and reads as follows:-
“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Article 217 deals with the appointment of High Court Judges and reads as follows:-
“(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor or the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and [shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of (sixty two years)]:
The appointment has to be made by the President who issues a warrant of appointment. In India, the President has to act according to the aid and advice of the Council of Ministers. Therefore, the appointment by the President is not an independent decision left entirely to the discretion of the President.
Under the Government of India Act, 1919 and the subsequent Government of India Act, 1935, appointments to the High Courts were the prerogative of the Crown with no specific provision for consulting the Chief Justice in the appointment process. After extensive debate, the Constituent Assembly ensured that no appointment could be made without consulting the Chief Justice of India by incorporating the consultation part in the Constitutional provisions mentioned above.
Until 1991, Judges were appointed to the High Court on the basis of a panel of advocates whose names were recommended by the Chief Justice of that High Court. These names were forwarded to the Chief Minister of the particular State and to the Home Ministry at New Delhi. If there was a serious objection of the executive to a particular name, it could be dropped. As far as the appointment of Supreme Court Judges was concerned, this was usually done from amongst the Chief Justices of various High Courts.
Judicial Decisions: In S.P. Gupta Vs Union of India  the Supreme Court, held that the opinion of the Chief Justice of India could be completely ignored in the matter of appointment of Supreme Court and the High Court judges. This view was reversed by the Constitutional Bench in Supreme Court Advocates-on-Record Association v Union of India  , where the Apex Court laid down guidelines for selection and appointment of judges:
The process of appointment of the High Court must be initiated by the Chief Justice of the respective High Court.
The Chief Justices must adhere to a time bound schedule so that the posts of judges are not kept vacant for a long period.
The proposal of the Chief Justice of the High Court must be sent to al other constitutional functionaries. The other functionaries, within 6 weeks from the receipt of the proposal, must convey their views to the Chief Justice of India. (It is not clear as to why the views cannot be conveyed to the Chief Justices of the High Courts).
If the particular constitutional functionary does not express its opinion within the specified period, it would be considered as a deemed agreement with the recommendation made by the Chief Justice.
The Chief Justice of India, after considering the recommendations and the views of the constitutional functionaries, should confirm his final opinion and convey to the President, within four weeks, of the final action taken.
The Chief Justice of India should take into account the views of his colleagues in Supreme Court who are likely to be conversant with the affairs of the concerned High Court. It should be noted that these requirements do not change the procedures laid down. It must be considered by the collegium consisting of the Chief Justice of India and two senior-most Supreme Court judges.
The process of appointment to the Supreme Court should be an integrated, participatory and consultative process of all constitutional functionaries who must perform their duty collectively so as to meet the required constitutional objectives.
It is also open to the Chief Justice of India to recommend the initial appointment of a person to any High Court other than the High Court for which the proposal was initiated, provided the other constitutional requirements are satisfied.
If there are any objections for the appointment of a particular person, it should be for good reasons, which must be disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendations on these conditions.
In exceptional cases, even a candidate recommended by the Chief Justice need not be appointed, if there are valid objections for his appointment. The objections can relate to his character, conduct, health or other factors. Similarly, if his tenure is likely to be very short, the appointment need not be made. In rare cases, even if the opinion of the Chief Justice of High Court conflicts with that of the Chief Justice of India, the appointment need not be made.
Several questions were raised by this judgement and subsequently In re Presidential Reference dated 23rd July 1998  the Apex Court clarified the proposition with the following principles:
Consultation with the Chief Justice of India does not mean consultation only with the Chief Justice. It requires consultation with a plurality of judges.
The Chief Justice of India has to form a collegium of four senior most puisne judges of the Supreme Court. This is necessary for appointments for judges of the Supreme Court or to transfer a High Court Chief Justice or a High Court judge.
For appointment of the High Court judges, the Chief Justice has to consult two senior most judges of the Supreme Court. This collegium can also take into account the views of a Supreme Court judge from the particular High Court to which appointments are to be made. For example, if appointment is to be made to the Madras High Court, collegium of the three judges can consult the senior-most judge of the Supreme Court from the Madras High Court. This will be necessary if he is not a part of the Collegium. They can also take into account the views of other Supreme Court judges or Chief Justices of the High Courts. This is to ensure that the best possible talent is brought to the Supreme Court Bench.
Until 1998, the collegium consisted of the Chief Justice of India and two senior-most judges. Thereafter, it was changed to the Chief Justice and four Judges of the Supreme Court.
The opinion of the collegium will have primacy in the matter of appointments. It is open to the Executive to inform the collegium of its objections. However, if the Chief Justice and his companion judges are still of the view that there is no reason to withdraw their recommendation, then that appointment should be made as a matter of healthy convention. However, even if two judges have serious reservations about a particular appointment, then it should not be made.
The Supreme Court can also consult other judges of the Supreme Court, judges of the High Court or even the Members of the Bar with regard to a particular appointment. The views of the members of the collegium should be made in writing and should be forwarded to Government of India along with recommendations of the Chief Justice. However, when the Chief Justice consults other Supreme Court Judges or members of the Bar these views should be summarised in a memorandum and forwarded to the Government of India.
If some members of the collegium have retired before a particular appointment is made and the Government of India has sent back adverse comments, then the Chief Justice has to constitute a new collegium by adding the requisite new judges to form the collegium. In such an event, there has to be unanimity in the appointment that is to be made.
The Chief Justice may, in his discretion, inform the person of the objections raised by the Government of India. The collegium can call for the reply of the prospective appointee and take into account his explanation before either withdrawing the nomination or confirming it.
Merit is the predominant consideration for appointment to the Supreme Court but seniority should be kept in mind. The Supreme Court has held that seniority can be overlooked in cases of outstanding merit.
The collegium for approving the appointments of High Court judges is the Chief Justice and two senior-most puisne judges of the Supreme Court.
The Chief Justice should take into account the views of the Supreme Court Judges who are likely to be conversant or familiar with the affairs of the concerned High Court. They must also taken into account the opinion of the Chief Justice of the particular High Court; this is entitled to the greatest weight.
Other movements to bring clarity and accountability in Judicial appointment process in India:
The Constitution (67th amendment) Bill, 1990 proposed the formation of a National Judicial Commission for the appointment of Supreme Court and High Court Judges and for the transfer of Judges from the High Court. The object was to prevent any arbitrariness in appointments and. This Judicial Commission was based on the recommendations in the 121st Law Commission Report. It was to consist of the Chief Justice of India, two Senior Supreme Court Judges, Chief Justice and two Judges of the High Court wherein appointments were to be made. This Bill was never passed. The proposal for a National Judicial Commission has been resurrected by the Constitution (98th amendment) Bill, 2003 and once again contemplates the formation of a National Judicial Commission. It proposes to introduce a new Chapter consisting of just one Article in the Constitution and also proposes to make consequential amendments to other Article in the Constitution.
Analysis of the Judicial appointments scenario:
The above analysis of the position in various countries regarding the judicial appointment process can be summarised as follows:
In most countries, the concept of judicial independence does not include an upper hand for judiciary in the judicial appointments process.
Judicial appointments, especially appointments to higher judicial forums are seen by many countries as increasingly a political process rather than a routine administrative exercise.
In many countries, where having a say in judicial appointments for judiciary is perceived as a part of judicial appointments, transparency and accountability in the judicial appointments process is also considered as an integral element of judicial independence.
In the recent years, many countries are moving towards giving a greater say to independent bodies with high density of judicial officers, and setting up an independent process, with less chance for influence from political executive and judicial hierarchy that gives transparency and accountability in the judicial appointments process.
In India, though a higher say for judiciary in judicial appointments have be zealously upheld by the judiciary through consecutive decisions, there has been no move to bring in transparency and accountability in the process.
An evaluation of the position in various countries as above show that in most places executive has supremacy in appointment of judges to Higher Judiciary, where as in India this has been hijacked by judiciary under the garb of “effective consultation". While the other Constitutional bodies like Public Service Commission also has been granted independence in functioning by the Constitution, they do not get the privilege of selecting their members. Hence one argument is that the primacy of judiciary in appointment of judges is not an integral or even necessary tenet of independence of judiciary. On the contrary ensuring the quality of judicial appointment is one of the important factors in judicial independence and the executive, judiciary and legislature, should be equally responsible for the appointment of judges. An analysis of most democracies would show that each of these pillars have got equal role in appointment of judges with no arm having supremacy or exclusivity. It is suggested that India also emulate a similar pattern where equal importance is given to all arms of government, and the executive, being responsible for the appointment getting an ultimate upper hand. There should also be a movement to bring in greater transparency and accountability in the judicial appointments process, and this would require no less than an open and committed mind at the legislative, judicial and executive higher echelons.