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Source– The post is based on the article “Defending the constitutional order” published in the Business Standard on 30th December 2022.

Syllabus: GS2- Appointment to various constitutional posts

Relevance– Independent working of institutions

News– The article deals with the issue of appointment of judges of higher courts and election commissioners.

What is the system of appointment of judges of higher courts?

The present procedure for the appointment of judges of higher courts is based on the SC judgements of 1993 and 1998. It involves a collegium of senior Supreme Court judges headed by the Chief Justice of India.

The executive can ask them to reconsider but it has to accept if the collegium reasserts its recommendation. However, it can hold up appointments by sitting on the recommendation.

The government introduced a law to set up a NJAC to make recommendations for higher court judge appointments. But this was struck down by the Supreme Court based on the argument that it compromised the independence of the judiciary from the executive.

What was the viewpoint of the constituent assembly on appointment of judges?

The Constituent Assembly debate on this matter clearly indicated a universal belief in ensuring the independence of the judiciary from the executive. Hence the Assembly took the middle ground. It was agreed to consultation with the Chief Justice.

According to Ambedkar, “it would be dangerous to leave the appointments to the executive, without any kind of reservation or limitation.

An amendment was proposed to replace the word “consultation” with the word “concurrence”. But, it was not accepted. Another rejected amendment was to involve the parliament.

What was the viewpoint of the constituent assembly on appointment of election commissioners?

According to the Constitution, the appointment of the election commissioners shall be made by the President, on the advice of the Cabinet.

In the Constituent Assembly, the committee on fundamental rights recommended that the independence of the elections should be provided for in the chapter dealing with fundamental rights. But, it was agreed that this should be in the part dealing with the establishment of an Election Commission.

The Assembly affirmed that the election management body should be freed from any kind of interference from the executive of the day.

What are issues with the appointment of election commissioners?

The strong role of the executive in the appointment of election commissioners has been rightly criticised. Short tenures of an average 20 months, since 2001 shows the politicization of appointment.

One of the chief CEC, after leaving office, held a ministerial position in the government.

Another instance of the executive dominance was rejection of CEC’s proposal to remove an election commissioner, whose independence was questionable. The commissioner concerned was later made a CEC.

What is the way forward for appointment of higher courts judges and election commissioners?

Election commissioners– The procedure for appointment needs to ensure the independence of the Election Commission. It should be made more transparent and acceptable to the electorate and the parties.

L K Advani in 2012, had suggested the appointment of the CEC by a committee chaired by the prime minister and which would include the chief justice, the law minister and the leaders of the Opposition in both houses. It may be considered.

There is a need for a more transparent system by making the collegium process more open to scrutiny. Executive should not be empowered beyond a certain level. The central goal must be to preserve the independence of the judiciary from the  executive.

The Constitution was drafted at a time when there was a commitment of politicians to democracy. Hence there were few safeguards for independence of institutions.

The political environment has changed. We now need an explicit process that maintains the independence and credibility of institutions that are central for democracy and the rule of law.