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. …
COMMENT