What India can learn from appointment process of the US Supreme Court judge Brett Kavanaugh

The American public recently witnessed appointment of a US Supreme Court judge Brett S. Kavanaugh, which was extremely partisan, controversial and fraught with emotions. The Indian judiciary can learn a lot from this appointment process. If we keep aside all the controversies of the appointment and focus on the process itself, what stands out is the transparency of the entire process.

The whole process was open to public and owing to the controversies surrounding the appointee, received widespread media coverage. Contrast this to the under-the-wraps appointment of Indian Supreme Court and High Court judges. The judiciary, under the garb of remaining independent, has invented a collegium system which is a black-box to the public.

The judges, amongst themselves, through some process unbeknownst to public, appoint another judge. One can only hope that the selection process is a logical one, there is no way to know the rationale. The appointee is further vetted by the Ministry of Law, they can only give their recommendation, the power of appointment rests solely with the collegium.

In America, once a president has nominated a candidate, the usual background check is carried out by FBI, just like the Law Ministry does in India. This is where the similarity ends, the further vetting in the US is carried out by a nomination committee consisting of democratically elected members of House and Senate (equivalent of lower and upper houses of Indian Parliament). For Brett Kavanaugh, this received widespread media attention owing to allegations of sexual harassment. In the process, his political leanings, his views on the controversial topics such as abortion as well as his drinking habits were discussed threadbare, publicly. It is the public aspect of appointment, which we must note, because just like our MPs, Supreme Courts’ judges, through their decisions and directives, can significantly affect life of general public. So, While the lives of politicians are public, nothing is known about judges of Supreme Court. This assumes greater, and graver, significance because we cannot vote out the judges and they hold their positions of great power for a long time – and hence, their appointment must receive greater scrutiny.

In a democracy, nothing should be above the will of people. This is our case, and in case of America, is the elected body. Modi government had taken a step in the right direction by introducing National Judicial Appointment Committee to bring in similar level of transparency in the appointment of judges. The constitutional amendment bill had received a very rare unanimous support in both upper and lower houses and was passed with every single member, save one, voting in favour of the bill. All of this, only to be overturned by the Supreme Court. The ground of rejection: “change in basic structure of constitution”.

Our constitution has taken many ideas from American constitution. As an example, the concept of federal structures comes from American constitution, so does the idea of judicial independence. In America’s 200+ years of existence, there hasn’t been any threat to judiciary’s independence. American judiciary is as independent as Indian judiciary. However, it has not usurped the powers of executive and legislature and has submitted itself to the will of the people in appointment of judges.

The constitution gives an extraordinary amount of power to the judiciary, and for all the right reasons. Without these powers, the system of checks and balances will fall flat on its face. At the same time, it is important for judiciary to realise that they are just one part of this whole concept on democracy in which peoples’ will is supreme. They must let themselves be chosen through a transparent and open system in order to restore peoples’ faith in this pillar of democracy.