India's judicial rebirth: Let's fix how we select and remove judges
A Judicial Service Commission (JSC), inspired by South Africa and Kenya's transparent models, could regulate appointments and removals with oversight by the Rajya Sabha. We propose a bold JSC to end the 'uncle judge syndrome' and also rid India's judiciary of bad judges to deliver justice reliably.
Also Read: Call of justice: India should reform its process for the removal of judges
India's flawed systems: The current collegium for judge selection, established through the 'Judges Cases' (1981-1998), redefined 'consultation" under the Constitution's Article 124 as 'concurrence," giving judges control over appointments to counter Emergency-era (1975-77) executive overreach.
A 2015 Supreme Court ruling struck down the National Judicial Appointments Commission (NJAC) Act, which proposed a selection panel that would include the Chief Justice of India (CJI), law minister, judges and eminent persons, preserving judicial primacy. Justice Chelameswar's 2015 dissent highlighted the collegium's opacity: no records, irregular meetings and leaks.
Judge removal is nearly impossible under Articles 124(4) and 218, requiring a motion moved by 100 Lok Sabha or 50 Rajya Sabha members, an inquiry and a two-thirds majority in both Houses for 'proved misbehaviour or incapacity." Only two judges—V. Ramaswami and Soumitra Sen—have faced such a motion in India so far and both resigned before the process was completed.
Also Read: The judiciary cannot turn into a haven for the corrupt
Cost of inaction: The collegium's secrecy breeds familiarity, often called the 'uncle judge syndrome.' A 2012 study by George Gadbois found candidates with judicial family ties 37% more likely to be appointed.
This lack of diversity alienates litigants, like a rural woman seeking justice for domestic abuse or a Dalit entrepreneur fighting business discrimination. These individuals, often from marginalized communities, face systemic barriers and may feel that judges—mostly urban upper-caste men—are unable to relate to their struggles, leading to doubts over fairness. The 2019 CPIO vs Subhash Chandra Agarwal ruling mandated access to collegium decisions under India's Right to Information, but compliance has been weak.
From the 2012 cash-for-bail scandal to recent allegations, it is clear that corruption persists. India's long-drawn judge removal process protects wrongdoers, undermining the rule of law.
Also Read: A judiciary that refrains from judicial overreach can better serve the cause of justice
Let's consider South Africa's JSC. How does it function? Under Section 178 of its 1996 Constitution, the JSC has 23 members: the chief justice, members of parliament, lawyers, academics and presidential nominees, with public nominations for civil society inputs. It advertises vacancies, shortlists candidates and conducts public interviews, recommending appointees based on merit and diversity (Section 174).
By 2022, 45% of judges were South African by ethnic ancestry. Removals start with the Judicial Conduct Committee, which handles minor complaints and issues warnings. Serious cases go to a Judicial Conduct Tribunal, which investigates and recommends removal to the JSC. The JSC's decision is final, subject to oversight by a parliamentary committee.
Consider a specific case, that of South African judge, John Hlophe (2008-2024). In 2008, the Constitutional Court accused Western Cape Judge President John Hlophe of trying to influence a case involving former President Jacob Zuma. Civil society groups, including Freedom Under Law, filed complaints with the JSC, demanding action. The JCC initially cleared Hlophe, but a public outcry led to further scrutiny. In 2020, Deputy Judge President Patricia Goliath flagged Hlophe's misconduct, including racist remarks. After a tribunal investigation, the JSC recommended his removal in 2024, approved by a parliamentary committee.
Also Read: Complete justice: Article 142 should be invoked only in truly rare cases
Accountability lessons: Kenya too has a similar structure and also follows Common Law principles like South Africa and India. Other democracies show how to hold judges accountable without a gridlock. In the US, judges face removal for misconduct, with its Congress and civil society ensuring transparency. Germany's parliament and courts, with public inputs, remove judges who violate fundamental ethical principles.
The UK uses parliamentary panels, informed by civil society, to address judicial missteps. Nigeria's judicial council, backed by legislative oversight and public advocacy, flags and removes corrupt judges. Unlike India's complex removal process, these systems empower elected representatives and citizens to act decisively, balancing judicial independence with accountability and offering India a blueprint.
India needs a judicial service commission: A JSC modelled on South Africa and Kenya could transform India's system. Led by the CJI, it should include judges, the law minister, academics and civil society representatives to ensure diverse perspectives. The JSC should advertise vacancies, shortlist candidates via public interviews and recommend appointees. Civil society could nominate candidates and offer feedback.
For removals, the JSC would investigate complaints (including citizen petitions), refer serious cases to a tribunal and recommend removals to the President, with oversight by the relevant Rajya Sabha parliamentary standing committee to ensure fairness and prevent politicization. This panel should review JSC processes, hold public hearings and report to Parliament, thus ensuring transparency. Critics fear politicization, but transparency and civil society involvement would mitigate this risk. Justice Louis Brandeis' truism, 'Sunlight is the best disinfectant," would apply.
A judiciary for all: India's judiciary must reflect its social diversity and earn trust. Adopting South Africa and Kenya's JSC models can reform appointments and removals. The judiciary's black robes must not conceal corruption or elitism. A JSC, with stakeholders like civil society, can end the 'uncle judge syndrome,' let in sunlight and ensure a judiciary that upholds the rule of law for every Indian.
The authors are, respectively, vice president of Pune International Centre and secretary general of CUTS International.
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