Who picks whom?

Debates of the 1940s return as the government and judiciary lock horns over appointment of judges and election commissioners

- Soni Mishra

How appointments would be made to two crucial Constitutional institutions-the higher judiciary and the Election Commission was at the centre of some of the most engrossing discussions in the Constituent Assembly as it drafted the Constitution. The debates dealt with the correlation between the method used to appoint these officials and the impact this might have on their independence and impartiality.

The Constituent Assembly did debate whether the judiciary should be given primacy regarding the appointment of judges and whether it should initiate the process rather than the executive. Members emphasised the need to preserve the independence of the judiciary by insulating the process from political influences. Ultimately, the Constituent Assembly rejected the proposal.

It stated, under Article 124(2) of the Constitution: "Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted."