India is about to see a radical shift in the way its judges are picked. After years of allowing judges to choose their own successors, based on a system that was itself defined by the judiciary and not Parliament, legislators decided to step in. The proposed National Judicial Appointments Commission still has to be ratified by 15 states before it replaces the collegium system, but if it does it will represent a fundamental change in the balance of power between the three arms of the Indian state.
For the first time in decades, judges will be chosen with as much input from the executive as from the judiciary. The six-member NJAC will include three senior Supreme Court judges, the Union Law minister and two “eminent persons” to be appointed by the Chief Justice of India, the Prime Minister and the Leader of the Opposition. It has the potential to make the appointments process much more political, which could erode confidence in the judiciary. But it could also usher in much more transparency.
But is the NJAC the best way to pick judges? Outside the judiciary and the legal fraternity, few believe that the collegium system was ideal. At the same time, many are unhappy with the composition of the NJAC and the process that the panel will use to identify names for its short list.
Here’s a look at how other countries take on this delicate task.
United States of America
How: The US has three different ways of choosing judges, across various federal and state systems. One involves the appointment method, which is used to select judges for the Supreme Court. Here the executive nominates an individual to become a judge but the nominee usually has to be ratified by the legislature. Then there is the retention method, by which the executive appoints a judge to the bench. After a certain amount of time, the renewal of this judge’s term is put to a public vote. Finally, there is the straightforward competitive elections, which usually involve a party nominating a judge whose candidacy is put up for a public vote.
Advantages: Elections as well as executive appointments make the judiciary almost as accountable to the people as the other branches. It also encourages transparency and accountability.
Disadvantages: The nine-member Supreme Court is a carefully crafted body that has immense power, but its composition essentially depends on which party is in power when a vacancy opens up. Campaign contributions for judicial elections also increases chances of corruption and partiality.
United Kingdom
How: For years, the UK depended on the Lord Chancellor to picks its judges. A unique post bridging the executive, legislature and judiciary, the Lord Chancellor both sat as a judge and was responsible for picking them, usually on the advice of the executive. Since 2005, the Constitutional Reform Act has separated the branches clearly, by constituting a Judicial Appointments Commission. Like India’s new NJAC, half of this panel is staffed by those from the legal fraternity, judges and barristers, and the other half by lay persons.
Advantages: A relatively independent panel that makes its decision based on merit, with substantial input from outside the legal fraternity, but no political influence.
Disadvantages: Limited diversity on the bench, with the arbiter of merit often resulting in a similar kind of person, from a class, race and gender perspective, being elevated to the court.
Pakistan
How: India's western neighbour has, over its history, seen a similar debate about the independence of its judiciary and how the appointments process affects this. For many years, there were allegations of favouritism because the President appointed the judges in consultation with the Chief Justice. For a while, this was altered to tilt the balance entirely towards the judiciary by making it mandatory for the President to accept the Chief Justice's recommendations. Then in 2010, the country moved to a Judicial Commission consisting of a mix of judges and other members, whose recommendations have to be confirmed by a Parliamentary Committee.
Advantages: With the Supreme Court playing a key role as a counterpart to the excesses of the executive as well as the military, an independent body provides enough transparency to prevent it being easily controlled by the government of the day.
Disadvantages: There have disputes between the Judicial Commission and the Parliamentary Committee over who has the authority to make the final decision.
Western Europe
Various Western countries use different versions of a Judicial Appointments Commission, many of which give much more control to judges, as India has done and would still continue to do with the NJAC. Cheryl Thomas of the University College of London, put together a table examining the composition of these panels in various Western European countries, all of which show a substantial judicial leaning.
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For the first time in decades, judges will be chosen with as much input from the executive as from the judiciary. The six-member NJAC will include three senior Supreme Court judges, the Union Law minister and two “eminent persons” to be appointed by the Chief Justice of India, the Prime Minister and the Leader of the Opposition. It has the potential to make the appointments process much more political, which could erode confidence in the judiciary. But it could also usher in much more transparency.
But is the NJAC the best way to pick judges? Outside the judiciary and the legal fraternity, few believe that the collegium system was ideal. At the same time, many are unhappy with the composition of the NJAC and the process that the panel will use to identify names for its short list.
Here’s a look at how other countries take on this delicate task.
United States of America
How: The US has three different ways of choosing judges, across various federal and state systems. One involves the appointment method, which is used to select judges for the Supreme Court. Here the executive nominates an individual to become a judge but the nominee usually has to be ratified by the legislature. Then there is the retention method, by which the executive appoints a judge to the bench. After a certain amount of time, the renewal of this judge’s term is put to a public vote. Finally, there is the straightforward competitive elections, which usually involve a party nominating a judge whose candidacy is put up for a public vote.
Advantages: Elections as well as executive appointments make the judiciary almost as accountable to the people as the other branches. It also encourages transparency and accountability.
Disadvantages: The nine-member Supreme Court is a carefully crafted body that has immense power, but its composition essentially depends on which party is in power when a vacancy opens up. Campaign contributions for judicial elections also increases chances of corruption and partiality.
United Kingdom
How: For years, the UK depended on the Lord Chancellor to picks its judges. A unique post bridging the executive, legislature and judiciary, the Lord Chancellor both sat as a judge and was responsible for picking them, usually on the advice of the executive. Since 2005, the Constitutional Reform Act has separated the branches clearly, by constituting a Judicial Appointments Commission. Like India’s new NJAC, half of this panel is staffed by those from the legal fraternity, judges and barristers, and the other half by lay persons.
Advantages: A relatively independent panel that makes its decision based on merit, with substantial input from outside the legal fraternity, but no political influence.
Disadvantages: Limited diversity on the bench, with the arbiter of merit often resulting in a similar kind of person, from a class, race and gender perspective, being elevated to the court.
Pakistan
How: India's western neighbour has, over its history, seen a similar debate about the independence of its judiciary and how the appointments process affects this. For many years, there were allegations of favouritism because the President appointed the judges in consultation with the Chief Justice. For a while, this was altered to tilt the balance entirely towards the judiciary by making it mandatory for the President to accept the Chief Justice's recommendations. Then in 2010, the country moved to a Judicial Commission consisting of a mix of judges and other members, whose recommendations have to be confirmed by a Parliamentary Committee.
Advantages: With the Supreme Court playing a key role as a counterpart to the excesses of the executive as well as the military, an independent body provides enough transparency to prevent it being easily controlled by the government of the day.
Disadvantages: There have disputes between the Judicial Commission and the Parliamentary Committee over who has the authority to make the final decision.
Western Europe
Various Western countries use different versions of a Judicial Appointments Commission, many of which give much more control to judges, as India has done and would still continue to do with the NJAC. Cheryl Thomas of the University College of London, put together a table examining the composition of these panels in various Western European countries, all of which show a substantial judicial leaning.
