I
t is gratifying to note that the central that judicial excellence. The judges ministers to choose some persons of their
government has, very recently, decided interpret the law, protect the Constitution own faith or choice. In such a case, the
to set up a National Judicial Commis- and settle all disputes which come up party in power is sure to capture the ju-
sion for the appointment of judges of within the complex society. But they diciary for its sinister interests.4 It is a
Supreme Court and high courts. The pro- must perform these stupendous duties proverbial truth that while it is necessary
posed commission, a five-member body, honestly, independently and with circum- to inject justice into politics, it is danger-
will be chaired by the chief justice of spection. 1 Unless they are properly ous to inject politics into justice. So, there
India. Two seniormost judges of the apex chosen, there may be frequent miscarriage is a necessity to curb the executive author-
court, the law minister of India and an of justice, because with small men no ity of choosing the judges by introducing
eminent citizen, possibly of the legal sector, great thing can ever be accompolished. If some constitutional means.
will be its members. The commission the lamp of justice, thus, goes out in The makers of our Constitution have
would, for filling up vacancies in the darkness, it would surely bring about a surely considered these arguments and,
Supreme Court and high courts, prepare total catastrophe. hence, they have provided for some checks
a panel of names out of which the presi- For this reason, our constituent assem- on the presidential power of choosing the
dent would make his ultimate choice. bly carefully considered the pros and cons judges. So, Articles 124(2) and 217(1)
It means that the government intends to of different methods of the appointment enjoin that the president must, before
introduce a major change in the prevailing of the judges of the superior courts and, making such appointments, consult with
method of appointments. Under Article finally accepted the method of nomination some judges of the Supreme Court and
124(2) of the Constitution, Supreme Court by the president. high court and, in some cases, consulta-
judges are appointed by the president after In fact, there are three different methods tion with the chief justice of India or the
consultation with some judges of the of choosing the judges. The method of chief justice of the relevant high court has
Supreme Court and high courts of his own electing them by the people seems, of been made obligatory.5 It is claimed that
choice. However, in the case of the ap- course, to be really democratic. But, as these provisions have modified, to a large
pointment of the judges other than the Harold Laski has put it, it is, without extent, the presidential authority in the
chief justice, the president is bound to exception, the ‘worst of all’ for various nomination of the judges.6 As B R
consult with the chief justice of India. reasons.2 The task of the judges is so Ambedkar, the chief architect of the
Similarly, under Article 217(1), the delicate that it requires long experience Constitution, observed, ‘The provision in
president is the sole authority to appoint and maturity of mind. But election by the the article is that there should be consul-
the judges of the high courts. Of course, people gives them only a five-year-term tation of persons who are, ex-hypothesis,
before making such appointments, he has which is very insufficient for that purpose. qualified to give advice in matters of
to consult the chief justice of India and Moreover, such a short term can, by no this sort’.7
the governor of the relevant state. How- means, ensure security of service and, Yet there are some loopholes in the
ever, in the case of appointment of a judge hence, for securing a subsequent tenure, whole arrangement. First, Article 124(2)
other than the chief justice, he must judges are sure to turn into politicians. In and 217(1) stipulate that the president will
consult with the chief justice of the said such a case, legal erudition would have nominate the judges ‘after consultation’
high court. little meaning – only the canny and self- with some jurists and judges of his own
So, the proposal of setting up of a judicial seeking jurists with popular charm would choice and this is mandatory.8 But these
commission would surely bring about a find their place in the judicial bench. provisions do not, by any means, indicate
significant change in the prevailing method Similarly, election by the legislature that he must abide by the suggestions of
of appointing judges of the superior courts. cannot ensure the independence and neu- such persons. In other words, if he does
In fact, the nature of a political ad- trality of the judges,3 as political consid- not seek their opinion, he would surely
ministration basically depends upon the erations would vitiate the recruiting pro- violate some statutory provisions, but if
integrity, independence and neutrality of cess. Moreover, it too would make the he merely consults with them and, then,
the judiciary and it is an axiom that the appointment a short-term affair and, thus, makes his own choice, it does not at all