While the Judiciary asserts primacy in appointments, the Executive’s delays, selective approvals, and political control over removal processes reveal a ‘constitutional ideal’ that is ‘frequently a constitutional fiction’
Suhail Khan
The parliamentary inquiry into Justice Yashwant Verma’s removal has reignited a profound and longstanding constitutional debate in India: the true independence of the judiciary, especially with respect to appointments and removals of judges.
While it is often asserted that the Supreme Court has encroached upon the executive’s prerogatives through its decisions, the reality is more intricately balanced. Although there is a prevailing belief in judicial overreach, the higher judiciary, including the Supreme Court and High Courts, continues to function within the established separation of powers. The current structure does not unsettle the executive’s role; instead, it reflects an ongoing negotiation between judicial autonomy and constitutional checks.
Judicial Appointments: The Executive’s Continued Shadow
The notion of judicial autonomy in the appointment of judges has long been debated in India. Landmark Supreme Court judgments have sought to shield the judiciary from external interference, particularly from the executive, by consolidating control over the appointment process.
Through S.P. Gupta and the NJAC judgment, the Supreme Court unequivocally asserted its primacy in recommending judges for the Supreme Court and High Courts. These decisions placed the Court ahead of the President, whose power in appointments is essentially derivative, anchored in the aid and advice of the Council of Ministers. While these rulings have been lauded for restraining executive activism and safeguarding judicial independence, executive influence has not been eliminated in practice.
Originally, the executive’s designated function was advisory, providing context on prospective candidates and, occasionally, returning recommendations to the Collegium for further consideration. Crucially, once the Collegium reaffirmed a recommendation, the executive was bound to proceed with it.
However, in recent times, the executive has diverged increasingly from its limited role. It has often delayed or withheld appointments, either by failing to act on Collegium recommendations or by persistently forwarding names back for reconsideration. A particularly problematic trend has emerged in which the executive selectively approves certain candidates from a list while deferring others. This practice disrupts the seniority-based hierarchy established by the Collegium and introduces opacity and discretion into the process.
Critics argue that the Supreme Court has exceeded its constitutional domain through its aggressive assertion of control over appointments, thereby encroaching on executive territory. Yet, the operational reality paints a different picture. The executive remains a powerful actor in appointment decisions. The issue is not the presence of executive involvement per se, but the symbolic nature of judicial autonomy in these procedures. The much-revered insulation of the judiciary from political interference is at best a constitutional ideal, but frequently a constitutional fiction.
Judicial Removal: Constitutional Rigour, Political Weakness
While appointments involve a dual structure with the judiciary and the executive, the removal of judges of the Supreme Court and High Courts is entrusted largely to Parliament.
Articles 124(4) and 124(5) of the Constitution lay down the substantive and procedural foundation for judge removal, operationalised through the Judges (Inquiry) Act, 1968. The only grounds for removal are “proved misbehaviour” or “incapacity,” as specified in Article 124(4).
The procedure turns on a motion supported by at least 100 Lok Sabha members or 50 Rajya Sabha members, depending on the initiating chamber. The Speaker (or Chairperson) must first admit the motion. Once admitted, an inquiry committee comprising a sitting Supreme Court judge, a Chief Justice of a High Court, and an eminent jurist is constituted to investigate the allegations and report to Parliament on whether the judge is guilty.
If the committee finds the judge culpable, the motion moves to a parliamentary vote. It must be passed in each House by a two‑thirds majority of members present and voting, as well as a majority of the House’s total membership. After approval by both Houses, the motion is presented to the President, who formally orders removal.
This rigorous and multi-step process reflects the framers’ intent to safeguard judicial independence by making removal procedurally formidable. Compared with the impeachment process in the United States, the Indian framework imposes a stricter threshold, emphasising the gravity of judicial exclusion.
Politicisation Of Removal: The Executive’s Indirect Leverage
Though the removal process is constitutionally situated within the legislature with equal roles assigned to both Houses, the executive wields considerable influence over outcomes in practice.
India’s parliamentary system typically grants the executive dominance in the Lok Sabha, enabling it to steer proceedings through the Speaker’s office. Even when the Rajya Sabha has a different political alignment, the executive’s majority in at least one House renders the removal mechanism vulnerable to political pressure, undermining its intended neutrality.
The removal case of Justice V. Ramaswami, the only completed inquiry to date, illustrates this politicisation. Despite the inquiry committee’s finding of misbehaviour, the motion to remove him failed in the Lok Sabha. The failure was not due to a lack of evidence but due to partisan voting and abstentions by the ruling party, highlighting the political dynamics at play even in constitutionally grounded judicial processes.
Moreover, an evident procedural loophole further weakens accountability: a judge under inquiry may resign at any point before the final vote. With no constitutional or statutory provisions to prevent resignation or to continue the process post-resignation, a judge may evade formal consequences yet still retain post-retirement benefits. This gap significantly undermines institutional accountability.
Conclusion: Constitutional Aspirations vs Political Realities
Although India’s constitutional framework envisages a judiciary firmly insulated from political influence, both the appointment and removal mechanisms continue to reflect significant executive influence. The judiciary’s autonomy in appointments, while robust on paper, is often curtailed through executive-induced delays, referrals, and selective approvals. Similarly, the parliamentary removal process, though designed to be rigorous, is susceptible to political manipulation, particularly through executive control of at least one legislative chamber. Procedural lacunae, such as the opportunity for a judge to resign mid-inquiry, further weaken accountability.
In sum, the theoretical design of checks and balances is increasingly tested by the executive’s de facto dominance, raising serious concerns about the depth and efficacy of judicial independence in India’s constitutional democracy. As long as procedural discretion and political strategy remain unaddressed, the executive will continue to loom large, undermining the ideal of a judiciary that is truly independent in both appearance and operation.
The writers in an LLM in Comparative Constitutional Law, Central European University, Vienna
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