Appointment of Judges Compared

What each method optimises

Judicial selection optimises independence and risks opacity and self-perpetuation.

Executive nomination with legislative confirmation optimises democratic accountability and risks politicisation, which is why American confirmation hearings are political events.

Legislative election optimises representativeness and risks party allocation of judicial office, which Switzerland accepts openly.

Commission selection optimises merit and transparency and risks producing candidates acceptable to everybody and remarkable to nobody.

No method optimises all three of independence, accountability and merit, and the comparison is therefore about which risk a system prefers.

A worked example

A vacancy arises on the highest court.

India. The collegium of the Chief Justice and the four senior-most judges recommends; the government may return the recommendation once; if reiterated, it is binding by the practice established in the Second and Third Judges cases; the President appoints under article 124(2).

United States. The President nominates; the Senate Judiciary Committee holds hearings; the Senate votes by simple majority; the President appoints under Article II section 2.

Switzerland. The Judicial Committee of the Federal Assembly proposes; the United Federal Assembly elects under article 168 for six years.

United Kingdom. A selection commission is convened under section 27 of the Constitutional Reform Act 2005; it consults and selects; the Lord Chancellor may accept, reject or require reconsideration, each once; the appointment is made by the monarch.

The cases

Facts. Supreme Court Advocates-on-Record Association v. Union of India, the Second Judges Case, concerned the meaning of consultation in articles 124(2) and 217 and whether the executive or the judiciary has primacy in appointments.

Held, by a Bench of nine. Consultation means concurrence; the opinion of the Chief Justice of India, formed in consultation with his senior colleagues, has primacy in the appointment of judges of the Supreme Court and the High Courts and in transfers; and the appointment is an integrated participatory consultative process in which the executive has a role but not the last word.

Why it matters here. It created the collegium and made India the only system on this syllabus in which judges effectively select judges.

Facts. Supreme Court Advocates-on-Record Association v. Union of India, the NJAC case, concerned the Ninety Ninth Amendment and the National Judicial Appointments Commission Act 2014, which had replaced the collegium with a commission of the Chief Justice, two senior judges, the Law Minister and two eminent persons.

Held, by four to one. The Ninety Ninth Amendment and the Act were unconstitutional and void, as violating the independence of the judiciary and the primacy of the judiciary in appointments, which are part of the basic structure. The collegium system was revived.

Why it matters here. It is the reason India's method is judicial selection and not commission selection, and it is the only case anywhere in which a constitutional amendment creating a judicial appointments commission has been struck down.

Distinctions

What beginners get wrong

"Article 124 provides for the collegium." It provides for consultation. The collegium is a judicial construction of that word.

"American judges are elected." Federal judges are appointed for life during good behaviour. Many State judges are elected, which is a different question.

"Swiss judges are appointed for life." They are elected for six years and must seek re-election, which is treated in [Election of Judges in Switzerland].

Limits and criticism

Judicial selection has no external check, which is the standing criticism of the collegium and the reason the Ninety Ninth Amendment was attempted.

Confirmation politicises the court, and the American process now turns on the nominee's expected votes rather than on professional fitness.

Commission selection can be slow and conservative, and the Lord Chancellor's residual powers under the 2005 Act are rarely used.

Quick revision

1. India: articles 124(2) and 217 require consultation; the Second Judges case read it as concurrence; the collegium selects.
2. United States: Article II section 2, nomination by the President and confirmation by a simple majority of the Senate.
3. Switzerland: article 168, election by the Federal Assembly for six years.
4. United Kingdom: section 61 of the Constitutional Reform Act 2005 creates the Judicial Appointments Commission; sections 26 to 31 for the Supreme Court.
5. Canada: section 96 of the Constitution Act 1867, Governor in Council on federal Cabinet advice.
6. Second Judges case: consultation means concurrence and the Chief Justice's opinion has primacy.
7. NJAC case: the Ninety Ninth Amendment and the 2014 Act struck down; the collegium revived.

Test yourself

1. Set out the four methods with their provisions. Judicial selection in India, under articles 124(2) and 217 as construed in the Second Judges case, the collegium recommending and the President appointing. Executive nomination with legislative confirmation in the United States, under Article II section 2. Legislative election in Switzerland, under article 168, for six-year terms. Selection by an independent commission in the United Kingdom, under sections 27 and 61 of the Constitutional Reform Act 2005, with the Lord Chancellor able to reject or require reconsideration once.

2. What does each method optimise and what does it risk? Judicial selection optimises independence and risks opacity and self-perpetuation. Executive nomination with confirmation optimises democratic accountability and risks politicisation. Legislative election optimises representativeness and risks the party allocation of judicial office. Commission selection optimises merit and transparency and risks producing uncontroversial rather than distinguished appointments.

3. What did the Second Judges case decide? That consultation in articles 124(2) and 217 means concurrence; that the opinion of the Chief Justice of India, formed in consultation with his senior colleagues, has primacy in appointments to the Supreme Court and the High Courts and in transfers; and that the process is an integrated participatory consultative one in which the executive participates without having the last word.

4. Why is India the only system on this topic in which judges select judges? Because the Second Judges case construed the constitutional requirement of consultation as requiring concurrence, and because the attempt to replace that arrangement by the Ninety Ninth Amendment and the National Judicial Appointments Commission Act 2014 was struck down in the NJAC case as violating the independence of the judiciary and the primacy of the judiciary in appointments, which the Court held to be part of the basic structure.