The lesson from a court appointment drama

Source– The post is based on the article “The lesson from a court appointment drama” published in The Hindu on 8th February 2023.

Syllabus: GS2- Structure and organisation of judiciary

Relevance– Issues related to appointment of judges

News– Differences are emerging between higher judiciary and the political executive over the power to appoint judges to the judges of higher courts.

What is the recent controversy related to judicial appointments?

The appointment of L. Victoria Gowri to the Madras High Court has created controversy. She is alleged to be engaged in hate speech against Muslims and Christians.

A petition was filed in SC on this matter. The legal challenge to her appointment was rejected by the court.

What are structural problems with the process of judicial appointments?

The first problem is opacity. In other countries, the names of the judicial candidates are publicly known before the formal commencement of the selection process.

In such a scenario, facts, such as Ms. Victoria Gowri’s statements would come to light. They  would be known to the selection bodies.

In India, the candidate’s name is effectively made public after their selection by the collegium. The selection process is behind closed doors. The parties involved are the collegium and the government .

This has an effect on transparency. The government can simply withhold relevant information from the collegium .This can create a situation like the present one.

What are issues related to judicial review of appointments of judges?

Once a collegium recommendation has been made, the only way of contesting it is through a legal challenge before the Supreme Court. It leads to a set of awkward situations.

The decision of the collegium must be challenged before their own junior colleagues. These colleagues will be assigned the case by the CJI.

The judges insisted that the only question they could consider in judicial review was L. Victoria Gowri’s eligibility and not suitability.

It is problematic due to structural opacity of the collegium. It benefits the political executive. The government can influence the materials on the basis of which the collegium determines “suitability”.

What is the way forward to improve the appointment process?

In South Africa, the judicial appointments commission are subjected to judicial review. The courts have directed the commission to make their deliberations public.

There is a need for a degree of separation between the judicial appointments commission and the court. This will create a system of checks and balances, and a corrective mechanism in case of mistakes and errors.

There is an appointment process that genuinely safeguards judicial independence from executive dominance.