Debates in the Constituent Assembly regarding appointments to the higher judiciary were brief. However in the discussions which took place, there was a keen perception of the ends which had to be achieved – the independence of the judiciary and safeguarding the dignity of the institution, the interests to be accommodated – a balance between governmental oversight and judicial autonomy in administration, a sharp awareness of the constitutional position in other jurisdictions and equally a realisation of the need to institute a system that would be effective in India’s political culture.

The aim of the discussions was clear – reaching a consensus on a system which would best ensure the independence and dignity of the judiciary as an anti-majoritarian bulwark in India’s constitutional democracy, comprising judges, who in Nehru’s words would be “of the highest integrity...people who can stand up against the executive government and whoever may come in their way.”

As far as the independence of the judiciary and judicial appointments is concerned, an early understanding of the concept in an Indian report, which formed the basis for discussion in the Constituent Assembly, can be found in the Report of the Sapru Committee in 1946. This report which heavily criticised the colonial system of appointment for allowing excessive executive discretion, understood the need for independence as a check against party politics and executive influence.

In terms of legal provision it meant that appointments would have to be taken out of the unfettered discretion of the executive. Thus for the first time a consultative method of appointment was proposed with judges of the Supreme Court appointed by the President in consultation with the Chief Justice of India, and judges of the High Courts also appointed by the President, in consultation with the Chief Justice of the High Court, the Premier (Governor) of the province concerned and the Chief Justice of India.

The rationale behind the provision was that the inclusion of the apolitical office of the Chief Justice of India for Supreme Court appointments, as well as the Chief Justice of the High Court for High Court appointments would ensure an appropriate counter-balance to political factors which may influence the selection by the executive. Though the final word would be with the President, it was felt that a multiplicity of high constitutional authorities, some of whom were apolitical, would ensure that judges of the highest quality would be appointed.

The Drafting Committee adopted the provision of the Union Constitution Committee with the addition of a proviso which made consultation with the Chief Justice of India mandatory. By the time this provision was taken up for discussion on the floor of the Assembly, several members, for the first time, moved beyond the simplistic and hitherto unquestioned notion of independence of the judiciary as the need to prevent politicisation to a richer discussion of what the concept entailed.

The need for functional independence was nuanced by TT Krishnamachari who cautioned the Assembly not to get carried away with the idea of independence as that would result in a judiciary, which would become an “Imperium in Imperio... operating as a sort of superior body to the general body politic.”

This view found resonance amongst the members of the Assembly, who emphasised the importance of adequate checks and balances on the judiciary. In particular, AK Ayyar believed that if judicial independence was elevated to the level of dogma, he felt, that the institution shorn of its restraints, could assume the role of a “super legislature or super executive”, roles which it would be illegitimate and incompetent to play. The general agreement regarding this view meant that independence of the judiciary and not its insulation was the prevailing view of the members of the Constituent Assembly.

Responding to these views and two alternative proposals to appointment that had been advanced, BR Ambedkar felt that seeking the concurrence of the Chief Justice of India would be giving him a veto power on appointments. Such power without any checks and balances would defeat the careful inter-institutional equilibrium that had been envisaged. Besides, an unchecked power had large potential for abuse, given the Chief Justice of India despite being a person of high integrity, could only be expected to suffer from biases as any individual would. Subsequently, amendments seeking concurrence of the Chief Justice of India were negatived.

Two aspects of Ambedkar’s response are particularly crucial. First, in refusing to accord a determinative role in the matter of appointments to the Chief Justice of India, Ambedkar underlines the fundamental executive nature of the power to appoint judges. The incorporation of consultation with the Chief Justice of India in the Constitution was hence not in any way a concession of the fundamental nature of the power of appointment. It was rather a necessary check to ensure judicial independence.

Second, without questioning the integrity of the Chief Justice of India, Ambedkar shows cognisance of the possibility of operation of inherent biases, if the Chief Justice were to be accorded an unchecked power. The emphasis is hence not only on the need for a multiplicity of authorities but equally on preserving an inter-institutional balance in appointments, with the judiciary and executive mutually informing and checking each other. This is an aspect of judicial appointments which has been lost sight of in contemporary debates with judicial conflict with the executive being perceived as the sole way to demonstrate independence.

Excerpted from Independence and Accountability of the Indian Higher Judiciary, Arghya Sengupta, Cambridge University Press.