The appointment of judges of the Supreme Court should not, in an ideal world, be subject to any kind of controversy. But in India, where things are far removed from the ideal, there is controversy about the issue. Article 124 of the Constitution states that “Every Judge of the Supreme Court shall be appointed by the President… after consultation with such of the Judges of the Supreme Court and of the High Courts… as the President may deem necessary.’’ The judiciary took this to mean that judges would appoint judges without any interference from either the executive or the legislature. The position was somewhat modified in 1993 when the Supreme Court instituted a collegium system. But this did not take away the right of judges to appoint themselves. This situation was questioned in 1998 by the then president of India, K.R. Narayanan. There has thus been an ongoing attempt to find a different method of appointing judges. The outcome is the judicial appointments commission which the cabinet instituted and has now decided to make into a constitutional body. This process, most right-minded people will agree, should be completed as soon as possible and without friction. Once this happens, there will be greater openness in the way judges are appointed and much less criticism of the judiciary being a self-appointing body.
As befits his position, the chief justice of India will be the head of the JAC. The JAC will consist of the law minister, two of the senior most judges of the Supreme Court, the law secretary and two persons of eminence to be selected by the prime minister, the chief justice of India and leaders of the Opposition in both Houses of Parliament. This structure of membership guarantees that the JAC would have within it enough checks and balances. It is a self-evident truth that in the real world it is impossible to form a selection process that is entirely foolproof. But prima facie the composition of the JAC has struck a nice balance. However, there are doubts of a different kind about the functioning of the JAC. How will this august body, for example, resolve differences when and if they arise? By majority? Or will all decisions be taken through consensus? It is possible that such questions will be answered through practice and some amount of trial and error.