Appointment of Judges : India versus United States

This article look compares the procedure of appointment of judges in India and US and seeks to analyze if India can learn anything from US in this direction.

Introduction

The Indian constitution has horizontally separated powers in hands of Legislature, Executive and Judiciary- One creates the law, other executes it and latter protects it or decides over it. Out of these institutions, the judiciary has enjoyed its sovereignty for a long period of time, especially in the matter of appointment of judges.

Indian method of appointing judges

The pyramidical structure of the Indian judiciary has Supreme court at the top of it. Then comes the High Courts of different states- most of the states have their own High Courts while some have common High Courts (e.g. Punjab and Haryana). Then the courts subordinate to it are at district level and so on. The appointment of judges to Supreme Court has been provided by the article 124 of the Indian Constitution  whereas for appointment in High Courts, the provisions are there in article 217.

According to provisions of the Constitution, the judges are to be appointed by the nod of  the executive head i.e. the  President after consulting the collegium which comprises of the Chief Justice of India and the senior-most judges of the Supreme Court, for appointments to the Supreme Court, and for the High Court, they,  together with the Chief Justice of a High Court and its senior-most judges are to be consulted. This is indeed the existing system of appointment unlike the previous system which involved Union Cabinet too in the appointment process.

The appointment of judges to these courts has been always a debatable and controversial topic for legislature and executive as well. The main reason behind this is the words mentioned in articles 124 as well as 217 whose interpretation three Judges cases- SP Gupta vs Union of India, Supreme Court Advocate on Record Association vs. Union of India and Special Reference no. 1 case, has led thepresent system of appointments, departing from the existing system of process appointment of judges which prevailedtill the year 1981. The process of appointment of judges till 1981 were made by theexecutive after consultation with the judiciary and it played a significant role, but the dominance of the opinion of the executive since then as to the process of appointment of judges were started being doubted which led to judicial interpretations of the term ‘in consultation with the CJI’, thereby keeping the process of appointment of Judges unclear and devoid of intelligibility.

Procedure followed by the US

The United States of America follows a dual court system that means both the federal government and the states have their own set of courts, which makes it 51 courts for the states and one Court for the Federal Government.

The process of appointment of judge of the Supreme Court is of great significance in the USA and involves substantial amount of politics. The appointment generally are in less frequency as any vacancy in the nine-member Supreme occur only once or twice during the tenure of the US President. The constitutional design of the USA has kept the independence of the Court away from the Congress. According to the American Constitution, the president nominates the judges and with the advice and consent of the Senate, appoints the judge of the Supreme Court. These judges are appointed for life-time, and they can be removed only through impeachment bythe Congress. Also, no statute provides for the qualification for judicial appointment to the Supreme Courtor the lower federal courts.

Indian system vs US system: What India can learn?

The USA got independence around two hundred years before India and hence its judicial system has been more sound and structured. The basic problem underlying in Indian system of appointment of judges is that it is the thinking that to appoint a judge one has to think like a judge and hence judiciary gets involved in the process of appointment and unethical appointment or nepotism may follow. In India there is no designated authority to nominate the prospective candidate and hence judiciary takes up the authority whereas in the USA the candidate is nominated by the executive. As far as the appointment is concerned, in India, the judiciary has to be consulted by the Executive before appointment whereas in the USA, Executive nominates and after consultation from the Senate or the Legislature makes the appointment, looping out the judiciary from this process making it more transparent. Consultation with the Senate means passing of the name by both houses of the Legislature with majority, which makes the level of difficulty of appointment high unlike the Indian system where appointment is easy. Therefore, India has to take certain cues from the appointment system of the USA so that it can fill the vacancy as mentioned by ex-CJI TS Thakur and with a judge of quality and this appointment level would attract lesser criticism and would be independent of any corrupt practices in the process of appointment.

Conclusion

The process followed for judicial appointment is comparatively easier in India, whereas the process followed in USA is elaborate and higher difficulty level. The main reason that US Judicial system is more sound than that of India is because the appointment of judges are in hands of the other judges itself in India whereas in the US the candidate has to go through screening of both the houses of legislature. Also, the process followed for appointment of Judges in India is a secret whereas in the USA with the elaborate procedure followed, the confirmation hearing with the prospective judicial candidate which is held by the Senate is open to public and broadcasted on radio and television. Therefore, India must learn from the US system of appointment of judges to strengthen its judicial system.