Recently, the Vice-President of India questioned the role of Chief Justice of India (CJI) in executive appointments, including the selection of the CBI director.

Chief Justice of India’s (CJI’s) consultation in Executive Appointments

• Appointment of Judges to the Supreme Court and High Courts: CJI (along with collegium of four senior judges of SC) is consulted by the President for the appointment of judges in the SC and the High Court.
• Appointment of Lokpal: The CJI is a member of the selection committee for appointing the Lokpal, along with the Prime Minister, Speaker of the Lok Sabha, Leader of Opposition, and an eminent jurist.
• Appointment of the Director of the Central Bureau of Investigation (CBI): The appointment committee comprises the Prime Minister as the chairperson, the leader of the opposition (LoP) in the Lok Sabha and the Chief Justice of India, or a Supreme Court judge nominated by him.

Positive Implications of CJI’s Involvement in Executive Appointments

• Checks and Balances: The CJI’s involvement ensures judicial oversight in key appointments.
• Judicial Independence:  In appointments like judges, the CJI’s role through the collegium system , reinforcing the independence of the judiciary.
• Merit-Based Appointments: The CJI’s consultation ensures that appointments are based on competence, integrity, and experience rather than political considerations.
• Transparency and Accountability: The CJI’s participation, especially in committees for Lokpal, CBI Director, and Election Commissioners, promotes transparency and ensures accountability in appointments to key institutions.

Concerns Associated with CJI’s Involvement in Executive Appointments

• Undermining of Democratic Principles: The CJI’s participation in the selection of the CBI director is inconsistent with democratic principles.
  • Such practices emerged due to judicial verdicts but emphasized the need to revisit them.
• Judicial Overreach: The executive governance by judicial decree can be described as a “constitutional paradox that undermines democracy.
  • The judiciary must not encroach upon executive and legislative roles.
• Threat to Separation of Powers: When institutions such as Judiciary exceed their constitutional mandates, it undermines the balance of power and weakens democratic governance.
• Judiciary’s Public Engagement: Judges’ statements beyond judgments may affect institutional dignity.
• Blurred Separation of Powers: The CJI’s involvement in executive functions can blur the separation of powers, as the judiciary is meant to act as an independent arbiter rather than a participant in executive decision-making.
• Accountability Concerns: While the CJI ensures accountability for the executive, the CJI’s own accountability in these processes remains limited, as there is no formal mechanism to challenge the CJI’s recommendations.
• Potential for Conflict of Interest: The CJI’s involvement in appointing officials who may later appear before the courts could create a perceived or real conflict of interest.

Judicial Activism Vs Judicial Overreach 

Way Forward

• Clear Guidelines: Establish codified guidelines for the CJI’s role in executive appointments to ensure consistency and reduce discretionary power.  
• Structured Consultation: Make the CJI’s consultation more structured and documented, ensuring transparency without compromising confidentiality.  
• Periodic Review: Regularly review the process of appointments to ensure it remains efficient and fair.  
• Broader Participation: In cases where the CJI is consulted, involving other senior judges can make the process more collective and transparent.  
• Inclusion of Neutral Members: Selection committees for key appointments like Lokpal, CBI Director, and CEC should include members from diverse backgrounds, ensuring no single institution dominates.  
• Parliamentary Oversight: A parliamentary committee can scrutinise recommendations without undermining the judiciary’s independence.