“The Chief Justice Is…”: Members of the Constituent Assembly Discuss Judges’ Selection

21 August 2017
Members of the Constituent Assembly in Delhi, in February 1947. The constituent assembly decided that the power to appoint judges to the higher judiciary shall not rest with either the judiciary or the executive alone.
Bert Hardy/Picture Post/Getty Images
Members of the Constituent Assembly in Delhi, in February 1947. The constituent assembly decided that the power to appoint judges to the higher judiciary shall not rest with either the judiciary or the executive alone.
Bert Hardy/Picture Post/Getty Images

In October 2015, leading a five-judge bench, Jagdish Singh Khehar—the chief justice of India, who retires on 28 August 2017—struck down the 99th constitutional amendment, which proposed the setting up of a body to make appointments to the high courts and the Supreme Court. This body—the National Judicial Appointments Commission, or the NJAC—would have comprised representatives from the executive and the judiciary, as well as two “eminent persons.” The issue of judicial appointments has a long history—if passed, the NJAC would have replaced the collegium system of appointments, which was laid down by the Supreme Court in 1993. The collegium system gave primacy to the judiciary’s role in the selection of judges, and was viewed by some as a usurpation of power by the judiciary. Until then, appointments to the higher judiciary were made by the president of India, after consultation with the chief justice. In a cover story for the June issue of The Caravan, Atul Dev, a staff writer, noted that “Khehar’s judgment in the NJAC case ensured that, at least for the foreseeable future, power over appointments to the judiciary would remain with the judiciary.”

As part of “The Argumentative Indians,” The Caravan’s series of selections from the Constituent Assembly Debates, below are extracts from the members’ speeches during the discussion on the appointment of judges to the Supreme Court, including those of KT Shah and BR Ambedkar. The members discuss why, according to them, the power to appoint judges should not rest with the executive or the judiciary alone.

Shibban Lal Saksena: Sir, in this amendment I have provided that the chief justice of the Supreme Court shall be appointed by the President, but it shall be confirmed by at least two-thirds majority of both the houses. At present, clause (2) provides that the president shall appoint the chief justice of the Supreme Court, which means that the prime minister or the executive shall appoint him. The chief justice of the Supreme Court should be completely independent of the executive, and it is this principle that I want to introduce in this section. At present, he shall be a creature merely of the executive and the president shall appoint him on the advice of the prime minister. This will take away some independence of the Supreme Court. We are here providing for the highest tribunal of justice in our country. This tribunal should be above suspicion and no executive should be able to have any influence upon him. … I therefore want, Sir, that the chief justice shall be appointed by the president of course, but at least two-thirds members of the parliament shall approve his name. … In this manner, there is some initiative to the president also: he will be the man who will give the names, but the name will only be accepted if two-thirds majority of both the houses support him. …

This method has two advantages: it gives the executive the right of choosing the person who they think will be proper, but it will not exercise that right in a party spirit and shall decide it in a manner that all the members of both the houses—or at least a two-thirds majority of them—shall approve that name. …

At present, Sir, the judges also have not to be appointed on the advice merely of the chief justice of the Supreme Court, but they are appointed in consultation with the supreme chief justice, which means even in their appointments the executive has got the major hand. I think, Sir, that this should not be. Every judge of the Supreme Court should be appointed on the advice merely of the supreme judge of the Supreme Court, so that they may derive their authority from the chief justice and not from the executive. This, I think, Sir, is a very important thing and should be incorporated in our Constitution. We have all along said that we want an independent judiciary; that is the pride of many peoples and that is the pride of the United States of America. I think we too want that our Chief Justice and the Supreme Court should be above suspicion. These should be completely independent, so that a man can feel that they shall be absolutely independent of the executive.

Keywords: Indian Supreme Court Supreme Court BR Ambedkar judiciary JS Khehar The Argumentative Indians judges' selection judges KT Shah
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