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JUDICIAL APPOINTMENTS:
AMBITIOUS EXPANSIONISM OF JUDICIAL TERRITROY
Vijay Choudhary
Advocate
Delhi High Court

vijay.choudhary@ymail.com

Robert Stevens points out: Judges choosing judges is the antithesis

of democracy. Unfortunately, Indian Supreme Court does not think so. It
has created and baptized its own judicial standard and appointment
mechanism called Collegium which is nothing but self-perpetuating elite
judicial body nay club to appoint judges. It has failed to balance between
judicial independence and judicial accountability. Judiciary is now being
widely perceived as self-perpetuating oligarchy. It has imposed
judicial censor to deprive public scrutiny of judicial appointments. In
its

claim

to de-politicize the judiciary, it has gravitated towards

judicialized politics (1).

The Supreme Court has completely eliminated executive from judicial
appointment based on the assumption of independence of judiciary and
judicial supremacy. It has negated the executive accountability of the
government to the Parliament and made judiciary as Super Organ above
the Parliament. In our constitutional system based on Westminster Model
of parliamentary democracy, judiciary is not accountable to Parliament;
accountability of the executive to the Parliament is retrospective. Justices
are not the representatives of the people; they are not elected by the
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1.

Stephen Burbank: Judicial Independence, Judicial Accountability &

Inter-branch Relations, 2006.

people; they are not even responsible to the people. Hence, those who
wield the power of appointment, but never directly responsible to the
people or parliament, must submit their authority for vigorous public
scrutiny in parliamentary democracy. Peoples faith and confidence in
the judiciary is shaken when extensive judicial powers are exerted in
secrecy without yielding to transparency and public accountability. Thus,
judicial transparency and democratic accountability are the real
casualty.
The Constitution of India does not create the structural Separation of
Powers in our parliamentary system as wrongly presumed and held by the
majority judgment in interpreting Article 124 and 217 of the Constitution. It
does not recognize the doctrine of separation of powers in its absolute
rigidity. The three organs of State Legislature, Executive and Judiciary
have to function within their assigned demarcated spheres. The law on this
question is no more res integra.
The majority judgment of the Supreme Court has dangerously converted
the Supreme Court into policy-making-judiciary, the role best left to the
executive or parliamentarians. It is the executive that has the main
responsibility of formulating the government policy by transmitting it into
law. The judges of the Collegium are not accountable to the policymaking element. The judges only interpret the law is an old dictum.
However, the Supreme Court has empowered itself with the role of
policy-making-judiciary claiming to represent collective instinct of
judiciary replacing the collective wisdom of the people through the

Parliament. This has created a very dangerous and critical situation in our
constitutional system. Whether the executive is constitutionally
empowered to check and balance the despotic judicial appointments is the
question remained to be answered. After all, the judicial appointments
cannot be allowed to remain hostage to Collegium in perpetuity.
It would not be wrong to argue that the Supreme Court has created a new
center of power on self-choosing basis by claiming the judicial supremacy
over the Parliament. The administrative independence, in the context of
judicial independence, can be easily eroded by powerful hierarchies within
the judiciary itself. James Madison, the Fourth President of USA stated
the accumulation of all powers, legislative, executive and judicial in the
same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elected, may justly be described as judicial tyranny [2].
The doctrine of exclusion of executive compels the conclusion that our
Founding Fathers had never intended to create what is sometime called
Judicial Oligarchy that can undermine its own legitimacy.
A note of caution and warning was expressed, and perhaps experienced,
by Justice Ruma Pal when she stated and declared that consensus within
the collegium is sometimes resolved through a trade-off resulting in
dubious appointments with disastrous consequences for the litigants and
the credibility of the judicial system. Besides, institutional independence
has also been compromised by growing sycophancy and lobbying within
the system. Therefore, administrative independence, in the context of
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2.

Fedaralist Paper.

institutional independence of judiciary, shrouded in secrecy of

appointments cannot be allowed to become potential product of
institutional brokering or trade-off or lobbying within the
system.
The entire controversy is surrounded by the words that the Chief Justice of
India shall always be consulted, the first proviso, under Article 124(2),
and with reference to Judges of the High Court, the language used in
Article 217 that the President would appoint Judges of High Courts after
consultation with the Chief Justice of India (per sub-Article (1) of Article
217). The Constitution (Forty second Amendment) Act, 1976, Article 74
was amended with the insertion of the words shall act in accordance
with such advice; the President was bound to exercise his functions in
consonance with the aid and advice tendered to him, by the Council of
Ministers headed by the Prime Minister.
According to the Supreme Court if aid and advice tendered by the
Council of Ministers under Article 74 of the Constitution is binding and
mandatory on the President, surely also, the term consultation, referred
to in Articles 124 and 217, leads to the same exposition. This view is an
extreme fallacy in law. The Constitution is not interpreted on the basis of
hypothetical analysis or mathematical equation or theoretical proposition
as has been done by the Supreme Court; but on the basis of express
provision contained therein. The dictionary meaning of the word
Consultation is: discussion, dialogue, deliberation etc and Oxford
Dictionary defines it as the action or process of formally consulting or
discussing. The law-makers were not dumb to understand its meaning.

Had the Founding fathers known that the Supreme Court would interpret
and fashion the plain meaning to suit its length by giving the Chief Justice
primacy over the aid and advise tendered by the Council of Ministers in
accordance with the provision of Article 74, they would have definitely
defined the meaning of Consultation in Article 124 itself. In any case,
the Constitution (Forty- second Amendment) Act, 1976, nowhere expressly
provide that the opinion of the Chief Justice shall have supremacy over
the aid and advise of the Council of Ministers or the word Consultation
with the Chief Justice shall be treated as equal to aid and advise of the
Council of Ministers. It is the invention of the Supreme Court. In fact, the
Supreme Court has very craftily ignored the constitutional mandate of
Article 74 of the Constitution. The majority judgment has substituted its
own judicial policy, not the Constitutions, for that of the Parliament.
Thus, judicially imposed policy is wrong because it does not rest on
intellectually coherent, let alone sufficiently fundamental and enduring
principle. The creative judicial activism must have force of compelling
persuasiveness to balance the inter-institutional relations but not to alter
the balance of relations between the judicial and political branches
executive and legislature. It appears the Supreme Court is obsessed with
the self-created powers of judicial appointments and not willing to share
or surrender it to the executive. The jurists and lawyers have started
doubting if it is to be termed as creative judicial activism or creative judicial
manipulation. Thomas Jefferson, the 3rd President of the USA said: The
Constitution is a mere thing of wax in the hands of the judiciary, which may
twist and shape into any form they please. In other words, the malleability
in interpreting the Constitution is an art, particularly if ambitious
expansionism of judicial territory is the goal.

Ambitious judicial policy or so-called creativeness does not mean

faulty reasoning in a Judgment. It is this ill conceived judicial policy
that substituted judge-made amendment of the Constitution implicit
in the Supreme Courts Judgment in the face of precedents that had
settled the true construction of Article 124 of the Constitution which stood
the test of constitutionality for over four decades. The Supreme Court
appears to lack precedent consciousness, restraint and moderation which
is counseled by the doctrine of precedent, believe the critics.
Unfortunately, the Supreme Court has exercised constitutionally
impermissible judicial veto over the Council of Ministers and
parliamentarians elected by the people and responsible and accountable
to the Parliament.
Now being heavily armed with the self-invented doctrine of judicial
supremacy and primacy of the Chief Justice, the Supreme Court has reinvented its role and additionally re-designated itself as a sort of judicial
Cabinet or parallel aid and advice body to the President by asserting
that the Chief Justice is supreme and has primacy over the Council of
Minister headed by the Prime Minister to the extent of appointment of
judges contrary to the provision of Article 74 of the Constitution. The
Supreme Court has, thus, created a new platform and role for imposing its
judicial opinion as mandatory and binding on the President. Neither the
Council of Ministers nor the President can refuse to obey the command of
the Supreme Court for the purpose of appointment of judges. The
mandatory constitutional provision of Article 74 has been made practically
redundant and otiose to the extent of judicial appointments. It is a
constitutional irony that the Supreme Court has relegated the Parliament

to an advisory or supervisory role and reduced the Union Cabinet to a

Kitchen Cabinet.
Once the Supreme Court has carved out its powers and functions on the
misconceived principle of independence of judiciary, judicial supremacy
and primacy of the Chief Justice over the aid and advise of the Council
of Ministers, it would be an exercise in futility to dwell at length on the
Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial
Appointments Commission Act, 2014. However, few words are required to
unfold the mistrust, distrust and suspicion entertained by the author of the
Judgment in the Fourth Judges Case towards the Executive Branch of the
Constitution.
There is saying: suspicion ruins the atmosphere of trust in a team and
makes it ineffective. The distrust caused and suspicion generated by the
Supreme Court towards inclusion of two eminent persons and Law
Minister in the 99th Constitution Amendment Act and NJAC Act
endangered the democratization process of judicial appointments and
judicial accountability. Transparency and accountability in judicial
appointment is the key basic feature of parliamentary democracy. Lord
Scarman acknowledged and declared: For if people and Parliament come
to think that the judicial power is to be confined by nothing other than the
judges sense of what is right, the confidence in the judicial system will
be replaced by fear of it becoming uncertain and arbitrary in its application.
Society will then be ready for Parliament to curb the power of the judges.
The National Judicial Appointments Commission was safety valve
towards increased transparency in judicial appointments to instill and inject
increased confidence in the people to know more about the appointment

process of the judges of the Supreme Court and High Courts and an
opportunity to test the democratic accountability. People have legal right to
determine and know about appointment of Justices who determine the
resolution of disputes of litigant public. If justices fear of politicization of
judicial institution is in danger, peoples fear of judicialized politics
and credibility of judicial appointment system without public accountability
and transparency is reality. After all, honesty and integrity is not the
monopoly of few learned judges of the Supreme Court.
The appointment of judges of the Supreme Court and High Courts by the
Collegium is enviously shrouded in secrecy and fiercely protective. The
secrecy of appointment process prevents public awareness of the extent
to which discriminatory considerations - nepotism, favoritism, institutional
brokering or trade-off or lobbying within the system may be taken
into consideration, limiting the public accountability of decision-makers
Collegium.
In order to secure the independence of the judiciary, a fairer, more
transparent process is needed with defined criteria free from the absolute
control of the judiciary. The doctrine of administrative independence of
judiciary embraces within its compass the principle of public accountability
and transparency. After all, there is difference between judicial
accountability and accountability of the judiciary for appointment purposes.
When judiciary takes over more and more functions from the democratic
process, it creates the opposite problem of over-judicializing public
policy[3]. . It must, therefore, face the enhanced public scrutiny and
accountability to the people through the Parliament. After all, appointment
of Justices is a matter of public policy and great public concern ultimately

affecting the litigant people in dispensation of justice. Hence, in a

democratic polity, people have every right to determine to whom the power
of appointment be entrusted through their elected representatives in the
parliament. Justice Frankfurter of United States Supreme Court has
opined and reminds us that nine justices of the Supreme Court, a bare
majority, are "molders of policy rather than impersonal vehicles of revealed
truth." The revealed truth as per constitutional scheme and framework, is
that the executive is the policy-maker in a parliamentary democracy but
the Judges of the Supreme Court have moldered and putrefied the policydecision.
Finally, to conclude in the words of Alexander Hamilton: It can be of no
weight to say that the courts, on the pretence of repugnancy, may
substitute their pleasure to the constitutional intentions of the
legislature.The courts must declare the sense of the law; and if they
should be disposed to exercise WILL instead of JUDGMENT, the
consequences would equally be the substitutions of their pleasure to that
of the legislative body [4].
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3.

Stephen Burbank: Judicial Independence, Judicial Accountability &

Inter-branch Relations, 2006.

4.

Fedaralist Paper No.78

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