How Judges Are Appointed: UK, India and Pakistan Compared

How are judges appointed in the UK, and what can India and Pakistan learn from it? Mian Ashiq Hussain argues that the answer matters far beyond the courtroom. The way judges are chosen decides whether a judiciary is merely independent of other institutions or also accountable to the people it serves, and South Asia, in his view, has struggled to get that balance right.

In How Constitutions Flourish or Fail, he compares three models: Britain's independent commission, India's collegium of senior judges, and Pakistan's Judicial Commission, which has swung from judicial control to executive control in little more than a decade. This essay follows that comparison and the reform he proposes.

Why does the way judges are chosen matter?

Because the rule of law rests on public confidence in the courts. The author holds that the judiciary must be independent, but that institutional independence does not mean judges are free from accountability or efficiency standards. A sound appointment system balances the two; if people lose faith in the courts, he warns, they settle disputes in the streets.

He also links appointments to the quality of judging. A judge chosen on merit, he writes, can stand firm against outside pressure, while a judge who owes his elevation to the patronage of senior colleagues may remain under their influence. Internal independence, meaning freedom from the sway of senior judges, personal bias and the temptations of power, matters to him even more than freedom from the executive. Selection through personal acquaintance also shuts out most of the eligible talent in a country, and falls hardest on women lawyers with little access to judicial social circles.

How are judges appointed in the UK?

Since the Constitutional Reform Act 2005, an independent Judicial Appointments Commission recommends qualified applicants for judicial posts. Its chair must be a lay person, most members are chosen through open competition, and judicial members are a minority. Britain's most senior judge has no hand in picking judges.

Before 2005, the author notes, the Lord Chancellor chose judges while also presiding over the House of Lords, sitting as the most senior cabinet minister after the Prime Minister, and acting in practice as head of the judiciary. British judges were still regarded as fiercely independent. The reform separated the judiciary from the executive on the principle that justice should not only be independent but be seen to be independent.

The author describes the commission's make-up in detail. Alongside the lay chair, its fourteen other members include five judicial members, five lay members, two professional members drawn from the legal professions, one non-legally qualified judicial member and one tribunal judge. The chair and eleven others win their places in open competition; the Judges' Council picks the remaining three judicial members. The design aims to widen access and diversity so that the courts do not become the preserve of a few hundred families. For the author, it is a workable model of the separation of powers.

Collegium system vs NJAC: what happened in India?

India's Supreme Court created the collegium in 1993, in the Advocates on Record Association case, so that senior judges in effect choose new judges. When Parliament replaced it with a National Judicial Appointments Commission in 2014, the Court struck down the 99th Amendment and the NJAC Act, and the collegium survived.

The author treats the collegium as an offshoot of the basic structure doctrine, which he sees as an extra-constitutional response to weak political institutions. The premise, adopted in both India and Pakistan, was that the way judges are appointed is inseparable from judicial independence. He notes that the ruling against the NJAC drew severe criticism from the Indian government and from constitutional lawyers, and cites Mia Swart's observation that many believe judges, like other public officials, should be subject to outside supervision.

The criticism he gathers comes largely from inside India. Commentators point out that the collegium has no basis in the text of the Indian constitution, and that it rejected transparency and concentrated the judiciary in a few families and elites. A former Supreme Court judge, Ruma Pal, described consensus within the collegium being reached through trade-offs that produced dubious appointments, and Justice Jasti Chelameswar questioned whether the system had secured an independent and efficient judiciary. Robert Stevens, author of The English Judges, put the principle bluntly: "Judges choosing judges is the antithesis of democracy."

How did Pakistan's 26th Amendment change the Judicial Commission?

It swung control from the judges to the government. Judges had held a majority on the Judicial Commission under the 18th Amendment. The 26th gave most seats to the government side, let it regulate court procedure, and added annual performance reviews of judges. The author calls this a leap out of the frying pan into the fire.

The story starts with the Al-Jehad Trust case of 1996, in which the Supreme Court read "consultation" with the Chief Justice as meaning his concurrence. That gave the Chief Justice the dominant role in appointments and made Pakistan, after India, the second country where senior judges effectively appointed judges. The Charter of Democracy of 2006 proposed a commission in response, but in the author's analysis its design would have made the Prime Minister the kingpin of appointments.

The 18th Amendment of 2010 reversed that proposal. Its Judicial Commission gave serving and retired judges a built-in majority, which Justice Mian Saqib Nisar described in a dissent as unprecedented. A Parliamentary Committee was given a veto by three-fourths of its members, but the 19th Amendment required it to give reasons that the Supreme Court could review, which left it toothless. An era of judicial supremacy followed. The 26th Amendment then turned the imbalance the other way, and the International Commission of Jurists also criticised its effect on judicial independence. The author observes that earlier attempts by the executive to tame the judiciary eventually faded, and expects these changes may not endure either. The wider debate on amending the constitution is traced in Constitutional Amendments in Pakistan: Who Holds the Pen?

Can judges be independent and accountable at once?

Yes, the author argues, provided no single branch controls appointments. He draws on Justice Asif Saeed Khan Khosa's dissent, which held that independence concerns how judges decide cases after taking the oath, not how they are chosen. Sharing the appointment power among institutions is the usual way democracies achieve both.

Khosa J. also read the constitutional separation of the judiciary from the executive as a separation of functions, not isolation between institutions. The author adds Paul Bovend'Eert's point that appointment powers should be divided among the executive, legislature and judiciary, since a judiciary without democratic oversight becomes a state within the state.

The comparative picture supports him. In about 40 countries, including New Zealand, Canada, Australia, Japan and Finland, judges play no part in choosing judges. In about 30, parliament has an important role, and in about 30 more, including South Korea, Switzerland and the United States, the executive makes appointments, subject either to parliamentary approval or to advice from independent commissions. Many American states elect judges, which, as Jack Knight of Duke University has noted, makes them more accountable but perhaps less independent.

Which model works best?

The author favours a broad-based, independent commission on the British pattern, adapted to Pakistan. Judges and law officers would be a clear minority, chief justices would have no role in appointments, most members would be recruited on merit through open competition, and eligibility for judicial office would be widened beyond a narrow pool of advocates.

In outline, he suggests a commission of about fifteen members in which judges and the Attorney General or Advocate General hold around five seats, with the rest drawn from diverse fields such as higher education, constitutional law, science, research and economics. The commission would be renewed every five years, would test and interview applicants, and would keep merit lists from which it sends panels of candidates when vacancies arise. In the semi-presidential system he favours, a directly elected President would make the final choice from those panels, a design explored in Semi-Presidential Systems: Examples and Lessons.

He would also open the doors wider. Pakistan's constitution already lets experienced civil servants and long-serving judicial officers qualify as High Court judges, but in practice recruitment comes almost entirely from advocates. He would apply all the eligibility routes equally and broaden the experience that counts for the Supreme Court. His wider critique of the courts, from suo motu powers to delay, appears in Ivory Towers of the Judiciary and Progress.

Frequently asked questions

What is the collegium system?

It is the practice, created by India's Supreme Court in 1993, under which the senior-most judges in effect select new judges. The author notes it has no basis in the text of the Indian constitution and argues it weakens public confidence by letting judges choose their own colleagues.

Who appoints judges in the UK?

An independent Judicial Appointments Commission, set up under the Constitutional Reform Act 2005, recommends qualified applicants. It has a lay chair, most of its members are selected through open competition, judges are a minority, and the country's top judge has no say.

What happened to India's NJAC?

Parliament created a National Judicial Appointments Commission through the 99th Amendment and the NJAC Act of 2014. The Supreme Court declared both unconstitutional, keeping the collegium in place. The author notes the ruling was severely criticised by the Indian government and by constitutional lawyers.

What did the 26th Amendment change?

It rebuilt Pakistan's Judicial Commission so that most members are under the government's control, allowed the government to regulate court practice and procedure, added annual performance oversight of judges, and created constitutional benches in the Supreme Court and High Courts. The author sees it as a move from one imbalance to another.

Read the full argument

The book examines judicial appointments alongside accountability, specialised courts and the wider reform of the justice system. Read it in How Constitutions Flourish or Fail, and find more of the author's writing on his author page.

Related reading: Ivory Towers of the Judiciary and Progress, The Basic Structure Doctrine: India, Germany and Pakistan and Constitutional Amendments in Pakistan: Who Holds the Pen?