The unfortunate status quo on appointments to the higher judiciary
- December 3, 2008
Uniquely among the constitutions of the world, the Indian Constitution (in Articles 124 and 217) requires the government to consult the Chief Justices of the Supreme Court and the High Courts before appointing judges. Every judge of the Supreme Court or a High Court shall be appointed by the President, and it will follow consultation with such of the judges of the Supreme Court and the High Courts of the states, as he may deem necessary. In the second and the third judges cases, the Supreme Court insisted that primacy had to rest in the opinion of the Chief Justice of India in the event of a disagreement, and added that the opinion of the Chief Justice would be the opinion of a collegium of senior Supreme Court judges. This was in contrast to the First Judges Case which had demanded a literal interpretation of constitutional provisions. The recent recommendation by the Supreme Court collegium to elevate justices H L Dattu, R M Lodha and A K Ganguly to the Supreme Court was the later stages of a process that has been followed since the Third Judges Case in 1998.
In the Second Judges Case, the majority noted B R Ambedkar’s statement to the effect that our judiciary ought to be independent of the executive. Once appointed, judges hold office until the age of superannuation. In fact, the dismissal of a judge requires enormous political will. The Constitution also makes detailed provisions for the structure, composition, powers and jurisdiction of the Supreme Court, of which only a few can be touched by ordinary legislative processes and that too, within constitutionally sanctioned limits. However, between 1973 and 1983, India witnessed a tussle between the ruling party and the judiciary. In 1973, three senior-most judges of the Supreme Court were superseded. The person appointed as the Chief Justice had held in favour of the Government in three important constitutional cases. Justice H.R. Khanna, who should have become the Chief Justice, had delivered a most courageous dissent during the Emergency. During the Emergency, from 1975 to 1977, sixteen High Court judges were transferred; after having displayed remarkable independence. Simultaneously, Indira Gandhi was being criticised for publicly stating the need for a committed judiciary, which would promote the political goals of the government.
Prior to April 3, 2006, the extent of the independence of the judiciary from the executive in the UK was quite unclear. Strangely, the executive, legislative and judicial functions of government met in the office of the Lord Chancellor. A political appointee and member of Cabinet, he is also Speaker of House of Lords and the most senior judge in the English court structure. The Prime Minister also advises the Crown on other senior judicial office holders like the Law Lords, and Appeal Court judges. Such apparent scope for political patronage had not gone without criticism. Tony Blair’s government announced significant constitutional reform on 12 June, 2003, designed to enhance the independence of the judiciary and to ensure clarity in the relationship between the Executive and the judiciary. As of 3 rd April 2006, the Lord Chancellors role as judge had ceased. In fact, the office survives only as a Minister of Justice and the Lord Chief Justice is now legally recognised as the head of the judiciary in England and Wales. Another far reaching initiative has been the constitution of the Judicial Appointments Commission, which will have responsibility for making selections for the appointment of all judicial office-holders. The newly constituted JAC has fourteen members, five of whom are judges and five are lay persons.
The system in place in India, designed to minimize political influence, does not preclude the Executive from suggesting names to the Chief Justice. The collegium of the first level (consisting of the High Court Chief Justice and senior High Court judges) would undoubtedly consider such names also. What happens practically is that by the time the recommendations of the first-level collegium reach the second for consideration, the Ministry of Law collects details about those recommended. The result of such enquiries would be forwarded to the collegium of the second level (Supreme Court). Only those names which the second collegium approves can be forwarded to the Law Ministry. The Central Government at this stage is not bound to advise the President of India to appoint the names approved. It is open to the Centre to send the names back to the collegium of the Supreme Court for reconsideration for any reason whatsoever. If the collegium, after reconsidering the recommendations in light of the points raised by the Centre, reiterates its earlier stand and the CJI makes the recommendation accordingly, then the Centre has to advise the President to appoint those recommended.
Following the decision in the Third Judges Case, the Constitution (67 th Amendment) Bill, 1990 proposed the formation of a National Judicial Commission based on the recommendations in the 121 st Law Commission Report. It was to consist of the Chief Justice of India, two senior Supreme Court judges, Chief Justice and two Judges of the concerned High Court. This Bill was never passed. The proposal for a National Judicial Commission was resurrected by the Constitution (98 th Amendment) Bill, 2003. If formed, it will consist of the Chief Justice of India, who shall be the Chairperson of the Commission, two senior most judges of the Supreme Court, the Union Minister in-charge of Law and Justice; and one eminent citizen to be nominated by the President of India in consultation with the Prime Minister for a period of three years.
Adding to the recent controversy on the matter, the Law Commission undertook to study the issue suo motu and made its disapproval of the status quo very clear. It recommended restoration of the earlier system of primacy of the Chief Justice of India. Its chairman (incidentally a former Supreme Court judge), Justice A R Lakshmanan observed that judges constituting the collegium were often “not conversant with the names and antecedents of the candidates and, more often than not, appointments suffer from lack of adequate information”. During the course of the study, the Commission also examined recommendations of the Parliament Standing Committee on Law, Justice and Personnel on the matter. Some time back, this committee headed by Rajya Sabha MP Sudarsana Natchiappan, had not only questioned the effectiveness of the collegium system, but also the “secret” manner in which the entire process of selection and appointment was handled by the collegium.
The role that Bar Associations could play in the appointment process has been a moot point for a while. Lamentably though, most Bar Associations are torn by internal strife and incapable of putting up a united face in the matter. However, this focus on the personality which makes the appointment will continue to stagnate the debate. For the constitutional guarantee of non-arbitrariness to make sense in the context of judicial appointments, the process needs to be transparent, eliminating all but the relevant factors. Any body that is empowered to make the selection must do so in a transparent manner, and be prepared to defend their choice.
