INTRODUCTION: THE SENTINEL OF DILEMMA AND THE CONSTITUTIONAL EVOLUTION OF THE JUDICIAL APPOINTMENT.
One of the challenges that has been facing the independence and accountability of judicial appointments in India is the way they have been evolving. Articles 124 and 217 of the Constitution originally had a vision of a middle ground of consultation between the President and Chief Justice of India (CJI). Dr. B.R. Ambedkar clearly opposed absolute discretion by the executive as well as a judicial veto, and believed that both would result in court packing and an empire within an empire. Nevertheless, the 1970s political upheavals, including the 1973 Supersession Crisis and the Emergency, witnessed the executive use appointments to impose the subservient judiciary. The Supreme Court in a backlash to this historical trauma basically rewritten the constitutional script in the Three Judges Cases (1981-1998). This transformed the consultation process into the concurrence process putting the power of making an appointment fully in a Collegium of senior-most judges and making judicial independence a part of the Basic Structure of the Constitution.
It is true that the Collegium immunised the bench to political whims but also created a new black box of judicial self-selection in terms of lack of transparency and a diversity deficit in terms of women, SC, and ST communities. Moreover, the incessant war between the Collegium and the Executive has seen the introduction of so called pocket vetos as well as a crisis of vacancies forcing High Courts to go at half the size of their normal capacity and leaving cases stacked high. Conversely, most of the modern democracies, such as South Africa, Canada and Ireland, have effectively transitioned into Independent Judicial Appointment Commissions (JACS). These models take into consideration televised interviews, objective merit grids and accountability loops in order to achieve transparency without undermining quality. Even though the effort of a similar organization by India, the National Judicial Appointments Commission (NJAC) was defeated in the Supreme Court in 2015 due to violating the Basic Structure, the current statu quo is tense. It is now clear that the Middle Path 2.0 is urgently required that takes global best practices to substitute institutional opacities with a more open, efficient, and representative blueprint of justice.
Research Question
What is the extent to which the institutional architectures and practices of appointments in South Africa, Canada, and Ireland can offer a transformational model of reforming the collegium system in India to attain sustainable balance between judicial independence, openness to the populace, and institutional efficiency?
Research Objective
To make accurate institutional and normative conclusions about the legal system of South Africa, Canada and Ireland through the judicial appointment systems. The lessons are supposed to help in reforming the current collegium based system of India such that there would be less transparency and less delay and yet the essence of judicial independence would be still felt.
Methodology
This study employs a comparative doctrinal and qualitative legal framework. The discussion is constructed around the main constitutional material, such as Articles 124 and 217 of the Indian Constitution, 1996 South African Constitution and the 2023 Irish Judicial Appointments Commission Act. It is a chronological analysis of the “Judges Cases” (1981-2015) and includes evidence on the National Judicial Data Grid (NJDG) to estimate the practical effects of delays in appointment and diversity shortages. The methodology is aimed at establishing the functional similarities and the effective procedural interventions in the comparator countries who may be adapted to the Indian socio-legal environment.
THE DOCTRINAL METAMORPHOSIS: THE COLLABORATIVE CONSULTATION TO THE JUDICIAL PRIMACY
The selection of the judges of the higher courts in the Indian context is not just an administrative process, it is a serious constitutional sovereignty which defines the nature and survival of the Rule of Law. The history of this process shows a theatrical development of a system of complete judicial exclusivity out of the model of collaboration and executive leadership. This transformation was more of a reaction in defense to political excess and this has led to a Basic Structures reading which has succeeded in protecting the judiciary in the same manner it aims to safeguard democracy.
The framers also made the construction of judicial selection a joint effort between the executive and the judiciary. The original idea contained in art 124 and 217 of the Constitution was that the President of India would appoint judges with consultation with the Chief Justice of India (CJI)1. In the Constituent Assembly debates, Dr. B.R. Ambedkar tried to express a view of prudent balance, opposing, respectively, the notion of executive discretion, which he was afraid would become a political kind of packing, and the notion of a judicial veto, which he thought would make the judiciary an empire within an empire2. The decided middle way, that of consultation, had been left openly malleable to facilitate the maturation of the institutions of the young Republic by mutual respect and institutional comity.
Nonetheless, the vision of cooperative politics of the 1950s was broken by the 1970s and 1980s political realities. The power of appointment could be turned into a weapon as the executive bypassed the three senior-most judges in order to appoint a Chief Justice who was seen to be a supporter of the ideology of the government, the so-called Supersession Crisis of 19733. This period of inconvenient judge transfers and the suspension of fundamental rights during the Emergency (1975-1977) had caused a raw institutional trauma in the judiciary causing a defensive response the ultimate consequence of which was to change the balance of powers in the most fundamental way.4
At first the Court was also submissive to the executive. In the case of the First Judges Case (1981) (S.P. Gupta v.Union of India). A literal view of the Constitution was followed by most of the Supreme Court, which held that the term “consultation” did not entail the meaning of concurrence5. This ruling was a confirmation of the primacy of the executive, in that as much as the President was obligated to carry out a relevant discussion; the ultimate decision, characterized by predominant authority, was left with the Central Government. This position is usually attributed to the still not forgotten trauma of the Emergency and unwillingness to face strong political leadership straight on.6
In the 1990s when the Court had to deal with mounting executive intrusion and a lengthy vacancy pile-up, the Court conducted a constitutional re-interpretation masterpiece. In 1993 the S.P. Gupta precedent was overturned in the Second Judges Case, with a nine-judge court authority stating that judicial independence was an indivisible component of the Basic Structure of the Constitution7. The Court claimed that the latter independence is a sham promise when the executive has control over the point of entry into the bench. As a result, the consulting was redefined by the courts as concurrence which was obligatory and the authority to appoint had passed over to a Collegium of senior most judges.8 The Court argued that CJI was the most appropriate to determine the legal skills and integrity of prospective members of the judicial family because he was the leader of the judicial family and therefore non-partisan.
This doctrine was later developed in the Third Judges Case (1998), an advisory opinion that added to the Collegium the CJI and the four senior-most judges when appointing to the Supreme Court9. Most importantly, it developed a strict reiteration protocol: in case the Collegium unanimously reiterated a recommendation by the time the executive had sent it back to reconsideration the appointment would become obligatory to the President10. This legalized a system of judicial self-selection which is virtually unique in contemporary democracies. Although this period was highly celebrated because it prevented the populist overreach of the bench, it also started getting criticism because it had shifted the process to be a black box in which certain merit and minutes deliberations were completely confidential.
This contemporary form of this raw independence has led to great system failures, chief of which have been a crisis of lateness and a deficiency of social diversity. Due to the now being an attrition battle between the Collegium and the Executive regarding appointment, the rate of vacancy in High Courts is not uncommon at above 40. The government is widely known to employ pocket vetos, which sit on recommendations months, even years unrequested, with neither official rejection nor approval, and which create a massive backlog of millions of cases, and denies the ordinary citizen the right to justice in a timely manner11. Moreover, Collegium selections have continued to be informal and therefore a network-based structure which has given rise to a judiciary which does not fully represent the lived realities, pluralistic identity of the Indian people. The number of women, Scheduled Castes and Scheduled Tribes being represented is also woefully low, and it forms an echo chamber on the bench, which jeopardises the long-term social legitimacy of the judiciary.
The state tried to fit in with the global trend by the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act of 2014 that tried to introduce the hybrid commission to the Collegium. The Fourth Judges Case (2015) however, did not find the NJAC constitutional as the Supreme Court found the inclusion of the Law Minister and the possibility of disallowing the Law Minister by eminent persons to be an impermissible usurpation of judicial independence12. Although the Court recognized that the Collegium system was imperfect and it had to be improved, it demanded the fundamental principle that the prioritization of the judicial role in the ultimate decision-making procedure.
Since the NJAC judgment there has not been a good working relationship between the two branches. The evolution of the literalism that characterized the situation in 1981, through the judicial exclusivity of the present day, demonstrates a judiciary that has managed to defend judicial independence but has been unable to explain that same judicial independence with the conditions of the current times. The sentinel on the qui vive has defended its own perimeters with such exceptional vigour, but the consequent shroud of opacification has exposed it to imputations of being undemocratic and narrow-minded.13 Once the Indian Republic advances further into the 21st century, the Judges Cases doctrinaire is being put to the test by a much more transparent public. It needs to be a step towards the light, to abandon the concealed logic of the 1990s in favor of something more open and participatory, which can be a way of upholding judicial primacy, of opening the door to the light of objective merit and social representation.
THE GLOBAL ARCHITECTURE OF JUDICIAL SELECTION: A FUNCTIONAL COMPARATIVE ANALYSIS
The pursuit of a perfect judicial appointing system is an international constitutional dilemma with all democracies having to decide how to stop judicial system party politics at the same time as making the bench answerable to the people who elected them. Whereas the Indian model has retrenched into a model of complete judicial self-selection, a comparative survey of South Africa, Canada, and Ireland shows a substantial change to hybrid commission based models. Jurisdictions imply that judicial independence is not a delicate phenomenon that has to be isolated of all external interactions, but is a quality of an institution that can be enhanced by transparency, diversity of stakeholders and an objective criterion based on merit14. It is possible to determine the spectrum of so-called independence with accountability by examining the three different models, which provides a normative alternative to the existing Indian stalemate.
The South African model in the Judicial Service Commission (JSC) is probably the most radical break away of the secretive black box model in India15. The JSC was established as a result of the 1996 Constitution, which was aimed at changing the face of a judiciary that was characterised by the loopholes of the apartheid regime to a pluralistic court that represents the South African people. Judicial candidates are interviewed publicly and often on TV, which is the most prominent aspect of South African system. Such kind of radical transparency puts the merit of a candidate in the limelight and allows the citizenry to observe the process of evaluating the legal philosophy, integrity, and fidelity to constitutional values of a judge. This means that merit is dealt with as a social norm and not as a judicial discretion. South Africa has shown that transparency does not undermine a judge, on the contrary, it gives him or her a social mandate and democratic legitimacy which can never be attained under a secret process16.
Compared to the publicity-seeking nature of the South African JSC, Canada offers an image of the efficiency of soft-law by using Independent Judicial Advisory Committees (JACs)17. The Canadian system focuses on a back-end, tough vetting procedure, in which committees of lawyers as well as laypersons review and assess applicants to published merit grids. Such grids not only evaluate social awareness and professional integrity, but also the legal excellence. Although the executive branch still has the ultimate authority to appoint people, it is limited by a long tradition of picking the lists of favorites included into those lists that were recommended by these committees18. This model demonstrates that executive intervention is not necessarily toxic of judicial independence as long as it is directed by some objective and pre-established standards. Moreover, the Canadian experience has had a much positive result in promoting the gender diversity since diversity is explicitly incorporated into the definition of judicial merit.
A modern example of institutional development is Ireland, which just recently revamped its process of appointment with the Judicial Appointments Commission Act of 2023. The Irish system which was historically criticized as easily influenced by political patronage has now taken a step towards rewarding merit instead of political affiliation by a merit-based commission19. Another distinct and crucial element of the Irish model is the justification clause, that demands that the government must give a reasoned published justification in case it opts to appoint a candidate who was not ranked, as the best choice by the Commission20. This forms a quantifiable accountability cycle whereby in case the executive does not follow the advice of the experts he or she must do so before the eyes of the people. This model directly solves the issue of the problem of opaqueness by compelling the political arm to explain its decisions through objective criteria, instead of political expediency.
The juxtaposition of these three models and the Indian Collegium reveals the differences in the stakeholder participation. In India, the fear that a scintilla of executive presence would upset the basic structure was the rationale behind the rejection of the National Judicial Appointments Commission (NJAC) in 201521. Nevertheless, the South African, Canadian and Irish systems show that the inclusion of non-judges, known as lay participation is an important safeguard against judicial insularity. These laypeople who include academicians, and the representatives of the civil society, offer a public-eye outlook that is usually absent in purely judicial debates. Non-judicial stakeholders can make sure that the bench is not an echo chamber of like-minded elites by recruiting candidates based on their temperament, social empathy, and what should be seen as public-facing integrity so that the bench can be a dynamic institution that is sensitive to a pluralistic society.
These jurisdictions are also systematically taking care of the issue of procedural efficiency and chronic vacancies, which is a significant crisis in the Indian High Courts. Canada and Ireland stress on a structured set of schedules and stages of appointments to make sure that the halls of justice are not vacant in a case of bureaucratic inertia22. Canada has advisory committees that are required to give shortlists early in advance of the expected retirements so as to facilitate a smooth transition. This is further enforced by the new system in Ireland by the justification requirement which is such that the administrative processing of files is not used as a means of political leverage or pocket veto. This is quite different to the Indian experience where due to the absence of set timelines, the executive can sit on recommendations over years. Based on the comparative evidence, it appears that the problem of the war of attrition between branches is greatly diminished when a system is constructed on the basis of published procedures and mandatory turnarounds.
Eventually, the comparison of the architecture of South Africa, Canada, and Ireland, demonstrates that a gold standard of judicial appointment does not exist, yet there exist universal principles of good governance and can be implemented. These countries have not only outgrown the dualism of the binary decision making of Judicial Primacy vs. Executive Dominance dichotomy but of establishing systems of hybridity that are more resilient and more firmly rooted in democracy23. They have demonstrated that even when the executive or the laypersons are involved, it does not necessarily result in the committed judiciary as long as the process is framed by objective standards and social checks. To India, it is a lesson that in the 21st century, genuine judicial legitimacy is on the principle of transparency, diversity and collaborative governance. With the procedural guarantees of these overseas models India will be able to leave behind the shroudy logic of old times and create an appointment system as representative and independent as the democracy it is protecting.
NJAC EXPERIMENT AND GLOBAL COMMISSIONS: COMPARATIVE STUDY OF TRANSPARENCY, STAKEHOLDERS AND DIVERSITY
In 2015, the National Judicial Appointments Commission (NJAC) collapsed and it became a clear turning point in the history of Indian constitutional life, as it was considered a failed experiment in transitioning to a multi-stakeholder system of judicial appointment. Although the Supreme Court invalidated the NJAC as an international anomaly on the path to protecting judicial independence, this ruling left India alone in the global community in following a system of absolute judicial self-selection24. Comparative analysis of the NJAC experiment with the working systems of South Africa, Canada and Ireland shows that the Indian crisis of opaque and non-diverse systems is not an inevitable consequence of gain independence, but an outcome of a particular institutional design that does not have any external checks.25
The biggest area of difference between the Indian Collegium and the global commission models is transparency. The process of selection in India is by secret process and no minutes are made public and no formal guidelines on merit are made public. The NJAC tried to bring some level of statutory transparency, which was seen by the judiciary to threaten the basic structure. 26Conversely, the South African Judicial Service Commission (JSC) consists of a culture of radical transparency in which applicants to the high bench are subjected to publicised televised interviews27. This enables the citizens to observe how a judge evaluates his/her legal philosophy and integrity. Although Canada and Ireland do not use public interviews, both countries are transparent with rigorous merit grid and annual reports which report the demographical and the professional background of the appointees.28
Another aspect on which the NJAC was fundamentally different compared to its counterparts in the world is the role of stakeholders or the non-judicial or lay members. The existence of the Union Law Minister and two of the eminent persons made the NJAC invalid mainly because the Supreme Court was fearful that this would enable the executive to be captured. 29In South Africa, Canada and Ireland, however, the introduction of lay members is regarded as a crucial protection against judicial insularity. Such members are offering a so-called public-eye view that is a counterbalance to the technical legal orientation of judicial members. The Commission in Irish 2023 reforms is meant to have a check on the unilateral veto that no one group including the judicial system can have without an explanation of the reasons.30
Perhaps the most obvious place of contrast lies in diversity in judicial appointments. The Collegium system in India has not been able to go beyond the stagnant demographics. Masculine statistics provided to the Parliamentary Standing Committee in 2023 revealed that around 79% of the High Court judges appointed since 2018 were belonging to the General Category and, therefore, there was a disproportionately low number of Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) judges31. On the other hand, the South Africa JSC has a constitutional obligation to keep in mind the necessity to have the judiciary as a reflector of the racial and gender mix within the country, which currently experiences a bench that is approximately 45 percent women and much more racially diverse than it used to be in 199432. In the same vein, Canadian model explicitly incorporates diversity as an essence of the so-called merit, which culminated in a gender-balanced Supreme Court in the past several years.33
These systems can also be differentiated by the problem of the efficiency of the procedures. This is a direct consequence of the war of attrition between the Collegium and the Executive, since vacancy rates in High Courts in India frequently go above forty percent34. Devoid of any timelines and a justification clause, the government is able to sit on the recommendations at any time. Canada Advisory Committees have a forward-looking mandate, which represents the planning of shortlists against a vacancy several months in advance35. The new system in Ireland afflicts a new element known as justification requirement in which the government must justify any delay or leaving the ranked list of the Commission.36
After all, it is the definition of accountability that is different between the global norm and the Indian model. In the case of the Indian Collegium the accountability is internal and judicial, the commissions of South Africa, Canada and Ireland have external and democratic accountability. The evidence provided by comparisons shows that the latter one is more capable of managing the complexities of a pluralistic society
THE INDIAN BLUEPRINT: INTEGRATING BEST PRACTICES AROUND THE WORLD TO AN NJAOC
The collapse of the 99th Constitutional Amendment and the consequential overruling of the National Judicial Appointments Commission (NJAC) in 2015 left the Indian Republic in constitutional stasis37. Although the result in the Fourth Judges Case by the Supreme Court was based on an authentic apprehension of a common law infringement by the executive, it has been used to shield an unsustainable status quo against substantial change. But even the Court itself did not fail to note that the Collegium should be improved38. The synthesis of the successful experience of South Africa, Canada and Ireland will allow India to go beyond the dichotomy between Exegetic and Judiciary, to National Judicial Appointments and Oversight Commission (NJAOC). This model is not in any way aimed at discarding the primacy of the judiciary but instead, it is meant to modernize it in a manner that independence is upheld in a transparent, inclusive and procedurally efficient process.
The major question learned during the failure of the NJAC was the issue of the so-called veto power by the non-judicial members of the body, which the Court considered as a danger to the Basic Structure39. To sail through this, the proposed NJAOC should be structured as a recommendative organization, in which the judiciary will still have a numerical advantage on final selections, though in which the process of making such selections will be shared with other interested parties. Similar to the South African Judicial Service Commission, the NJAOC should incorporate some members of the Bar, the Executive, and eminent persons representing the civil society40. These members would however serve mainly in the vetting and interviewing processes to comply with the Indian Basic Structure requirement. They would serve to offer a social audit into the candidates to make sure that the temperament, devotion to constitutional principles, and integrity of the judge is put to the test before his/her name gets to the ultimate voting point41. This can facilitate a multi-stakeholder perspective that does not and cannot take away the judiciary as the ultimate judge of the legal quality.
This new architecture should be based on transparency. The existing Indian system is full of a veil of secrecy which creates a lack of trust among the people and accusations of nepotism. Like the Irish Justification Clause and South African public interviews, the NJAOC ought to have a condition that the a summary of the reasons behind any recommendation be published42. Although televised interviews may be too radical in the Indian situation at the start, the Commission should at least make the selection criteria and a redacted copy of its deliberations minutes available. The judiciary can regain its institutional legitimacy by forgetting the black box thinking of the 1990s. Once the people are made aware of the reason why a certain judge was selected which is based on published merit grids as seen in Canada, the view of the judicial system changes to that of a perpetual elite rather than a democratic institution43.
In addition, the NJAOC ought to deal with the systemic lateness crisis with an officialized, T-minus 6 Months regulation. Among the greatest failures of the present Memorandum of Procedure is the absence of binding schedules, which enables the Executive to practice a pocket veto by holding files to ransom. An improved blueprint will require that the NJAOC initiates the selection process six months prior to a vacancy. In case there is a consensus on the Commission, the President should be obliged to express an objection within a specific time span of 30 days. Following the Irish example, in the event of a rejection of a candidate by the Executive, it would have to give a written, reasoned explanation44. In case the NJAOC reiterates the name at that time with a majority, then the appointment will become automatic and mandatory after 14 days. This does not leave the war of attrition between the branches, but the High Courts, where most Indians have, as a rule, a justice to the books of which, vacancies leave them crippled and helpless as a corpse.
Social diversity is not a good quality anymore but the necessity to a constitutional pluralistic democracy45. A way out can be the Canadian approach of considering diversity as part of merit and not as an alternative to it. The NJAOC must be compelled to go out of its way trying to identify underrepresented candidates, such as women, Scheduled Castes, Scheduled Tribes, and religious minorities. This does not involve introducing any hard-and-fast quotas, which would invite constitutional issues, but instead a “Diversity Mandate” in the Commission charter. The NJAOC ought to release reports of the demographic composition of higher judiciary in a yearly basis, developing a shame or honor system to compel the Commission to avoid the cycle of repetition of the network based selections. A bench which is a mirror image of the society which it serves, will be more stable, better placed to deal with the complex socio-legal problems of a diverse nation.
Lastly, this is the “Oversight” feature of the NJAOC which makes this proposal superior to the failed NJAC. At present, India already lacks a formal system to deal with grievances against the sitting judges other than the so-called nuclear option of impeachment, which is both politically infeasible and procedurally burdensome. India can provide a graded response to judicial misconduct by the creation of an Oversight Wing of the Commission, which will be a combination of retired judges and independent ombudsmen. Such wing would be dealing with grievances pertaining to judicial temper, judicial procrastination and minor ethical breaches so that judicial independence does not turn to be a defense of judicial unaccountability.46 This dual mandate, Appointment and Oversight, makes sure that the Commission will always be a watchdog who will preserve judicial integrity during the entire life of a judge and not only when he enters.
To sum it up, the suggested NJAOC blueprint is an extension of the Indian constitutional compact normatively. It recognizes that judicial primacy was an essential defensive shield in the 20 th century but should develop into a collaborative primacy in the 21 st century. A combination of radical transparency of South Africa, meritocratic vetting of Canada, and accountability loops of Ireland can allow India to have a system that is fiercely independent and highly accountable. The reform here is not, simply, a question of the mode of choice of the names; but of the giving of the sentinels on the qui vive a mode of choice which is as strong, representative, and democratic as the Constitution itself upon which they are sworn47.
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Footnotes
1. India Const. art. 124, cl. 2, art. 217, cl. 1.
2. 8 Constituent Assembly Debates 258 (May 24, 1949)
3. Granville Austin, Working a Democratic Constitution: The Indian Experience 278–81 (Oxford Univ. Press 1999).
4. Abhinav Chandrachud, The Informal Constitution: Unwritten Conventions of the Constitution of India 210–15 (Oxford Univ. Press 2014).
5. S.P. Gupta v. Union of India, AIR 1982 SC 149, 149 para. 30.
6. Madhav Khosla, The Indian Constitution 154 (Oxford Univ. Press 2012).
7. Supreme Court Advocates-on-Record Ass’n v. Union of India, (1993) 4 SCC 441.
8. Id. at 451–52.
9. In re Special Reference No. 1 of 1998, (1998) 7 SCC 739.
10. Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 J. DEMOCRACY 70, 75 (2007).
11. Dep’t of Just. (India), Vacancy Position of Judges (Official Report, Jan. 2024); see also TATA TRS., India Justice Report 2022: Judiciary: Trends and Analysis (2023).
12. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1.
13. State of Madras v. V.G. Row, AIR 1952 SC 196.
14. Jan van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice 24–30 (Bingham Ctr. for the Rule of Law 2015).
15. S. Afr. Const. § 174, cl. 2.
16. Cora Hoexter & Morné Olivier, The Judiciary in South Africa 170–75 (Juta & Co. 2014).
17. Supreme Court Act, R.S.C. 1985, c. S-26 (Can.).
18. Off. of the Comm’r for Fed. Jud. Affs. Can., Guide for Candidates: Federal Judicial Appointments (2023), https://www.fja-cmf.gc.ca.
19. Judicial Appointments Commission Act 2023 (Ireland), s 9.
20. Id. § 51.
21. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1, 630.
22. Peter H. Russell, The Selection of Judges in Canada: A Quest for Balance, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD [page #] (Kate Malleson & Peter H. Russell eds., 2006).
23. SECURING JUDICIAL INDEPENDENCE: THE ROLE OF COMMISSIONS IN SELECTING JUDGES IN THE COMMONWEALTH 88–92 (Hugh Corder & Jan van Zyl Smit eds., 2017).
24. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1, 630.
25. Jan van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles 15–18 (Bingham Ctr. for the Rule of Law 2015).
26. Rehan Abeyratne, Upholding Judicial Independence in India: The NJAC Judgment in Comparative Perspective, 10 J. PARL. & POL. L. 559 (2017).
27. S. Afr. Const. § 178; see also Helen Suzman Found. v. Judicial Serv. Comm’n 2018 (4) SA 1 (CC) (S. Afr.).
28. Off. of the Comm’r for Fed. Jud. Affs. Can., Judicial Advisory Committees: Merit Criteria (2023), https://www.fja-cmf.gc.ca.
29. NJAC Case, (2016) 5 SCC 1, ¶¶ 712–15 (opinion of Khehar, J.).
30. Judicial Appointments Commission Act 2023 (Act No. 34/2023) §§ 12, 51 (Ir.)..
31. PARL. STANDING COMM. ON PERS., PUB. GRIEVANCES, LAW & JUST., DEP’T OF JUST. (INDIA), Report on Social Diversity in the Higher Judiciary (2023).
32. JUD. SERV. COMM’N (S. AFR.), Annual Report 2022/2023, 14 (2023).
33. Peter H. Russell, The Selection of Judges in Canada: A Quest for Balance, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD (Kate Malleson & Peter H. Russell eds., 2006).
34. DEP’T OF JUST. (INDIA), Vacancy Position of Judges in the High Courts (Official Statistics, Jan. 1, 2024).
35. Supreme Court Act, R.S.C. 1985, c. S-26 (Can.).
36. Judicial Appointments Commission Act 2023 (Act No. 34/2023) § 51 (Ir.).
37. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1.
38. Id. (Order on Improvement of the Collegium System, Dec. 16, 2015).
39. Rehan Abeyratne, Upholding Judicial Independence in India: The NJAC Judgment in Comparative Perspective, 10 J. PARL. & POL. L. 559, 570 (2017).
40. S. Afr. Const. § 178.
41. Jan van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles 32 (Bingham Ctr. for the Rule of Law 2015).
42. Judicial Appointments Commission Act 2023 (Act No. 34/2023) § 51 (Ir.).
43. OFF. OF THE COMM’R FOR FED. JUD. AFFS. CAN., Guide for Candidates: Federal Judicial Appointments (2023).
44. Id. § 51(2).
45. APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 45 (Kate Malleson & Peter H. Russell eds., 2006).
46. SECURING JUDICIAL INDEPENDENCE: THE ROLE OF COMMISSIONS IN SELECTING JUDGES IN THE COMMONWEALTH 210 (Hugh Corder & Jan van Zyl Smit eds., 2017).
47. State of Madras v. V.G. Row, AIR 1952 SC 196.