Should judges select judges? Opinions differ
NEW DELHI: Of late judiciary is facing allegations that selection of judges is not up to the mark. Favouritism is gaining precedence over merit, say some of the advocates. It is only in India that judges select judges.It doesn’t happen anywhere else in the world, they point out.Prior to 1993, it was the Executive that used to select judges for the higher judiciary in consultation with the Chief Justice of India.
However, finding that Executive is imposing its favourite men on it, the Supreme Court, in a judgment in 1993 held that judges would be selected by the CJI assisted by two judges of the apex court.
Express spoke to some of the eminent advocates on the issue to elicit their views. Senior advocate and former solicitor-general TR Andhyarujina said: “Though the judgment of the Supreme Court is totally wrong and a prime example of apex court overreaching, we cannot give the government full power today to appoint judges.
We have to try an independent judicial appointments commission.” The Constitution does not contain a provision to select judges by a collegium of judges. It confers the power on the President, in other words, the Government of India, and it is to be made in consultation with the CJI and other judges of the Supreme Court and the High Courts, the senior advocate said.
This method of collegium was created as a result of two judgments.In 1993 (Supreme Court Advocate-on-Record Association case) the power was vested in the CJI. It was held that the primacy lay in the CJI, assisted by two judges of the apex court.
And later, in a presidential reference to the court in 1998, to secure the independence of the judiciary, the Supreme Court appropriated the power to appoint judges.