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Judiciary at the Crossroads – An Eternal Debate on Judicial Appointments by Abhilasha S G & Medha M Puranik

The Authors: Abhilasha S G & Medha M Puranik are Law Students Studying at School of Law, Christ University, Bangalore

INTRODUCTION

The judiciary is one of the pillars on which the edifice of the constitution is built. The role of judges is indispensible in the delivery of justice. The judiciary seeks to ensure that all the organs of the state are within its powers, thereby ensuring rule of law. Besides this, the judiciary assists in the progression and protection of the society by preventing injustice in addition to being an arbiter of disputes and upholder of the rights of citizens. The judiciary is a means for bringing about social change for the betterment of the citizens and democracy of India. It is an interpreter and guardian of the constitution of India. In view of the above aspect, it becomes extremely essential to ensure that the right persons sit in the prestigious position of judges. The quality of the judiciary depends upon the individual judges. Thus, the proper selection of judges is of paramount importance.

The method of appointing judges has undergone a sea change from pre-independence era to the present decade. It is well recognized that whatever be the system, the administration of the law and the quality of justice would depend a great deal on individual judges as much as in the institution of the judiciary as a whole. The integrity, qualification, training and experience of a person is of utmost importance in the selection of the judges and the modality of selection, with a view to achieve that objective is therefore of vital concern.[i] The judiciary is a unique institution in a democracy which curtails transgressions of constitutionally assigned powers of the executive and the legislature while simultaneously administering the laws made by it. Its role necessitates independence in very real terms.

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The debate on judicial appointments revolves around the crux of the matter as to who has the power to appoint judges. The significance of every single appointment to the Supreme Court or a High Court was emphasized in the majority opinion in the case of K. Veeraswami v. Union of India.[ii] It said:

“A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system…a judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof”.

GENISIS OF SYSTEM ON APPOINTMENT OF JUDGES

The aspect of judicial appointments is rich and varied in issues. The whole debate of judicial appointments boils down to the question – who is to judge who judge us. Under the Government of India Act, 1919 and the subsequent Government of India Act, 1935, appointments to the High Courts were the prerogative of the Crown with no specific provision for consulting the Chief Justice in the appointment process.  According to the text of the Constitution, Articles 124 and 217 deal with the appointment of Supreme Court and High Court Judges respectively. Under the scheme of our constitution, both the judiciary and the executive must have a say in the appointment of judges and they are required to act in harmony and cooperation.  After extensive debate, the Constituent Assembly ensured that no appointment could be made without consulting the Chief Justice of India by incorporating the consultation part in the Constitutional provisions mentioned above.[iii] It is seen from these two articles that the views of the constitution framers was to balance the power of appointment of judges from various constitutional authorities, but however, the term ‘consultation’ has come under intense scrutiny by the Supreme Court.

The origin of judicial appointments is in the landmark case of S.P. Gupta v Union of India[iv], which is famously known as the First Judges Case. Prior to this, the President was granting short term extensions to additional judges and there were transfers of several judges of High Courts. Such acts of the executive came to be challenged in this case. The major issues amongst other issues relating to transfer of judges was whether the opinion of the Chief Justice was to be given primacy over other constitutional functionaries and whether the President was bound by the advice of the Chief Justice in matters of judicial appointment. The decision was held in favour of the executive.

P.N. Bhagwati stated that “the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.”[v] He also mentioned that “If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion. But it is only consultation and not concurrence of the Chief Justice of India that is provided in Cl. (1) of Art. 217.”[vi]

Further, the majority held that the decision of the President cannot be challenged in the Court either on the mala fide intentions or on the ground that it was based on irrelevant considerations. The Judges case, therefore, virtually gave the President the power of veto over the appointments.[vii]  One newspaper termed this a ‘New Year’s Gift’ for the executive.[viii]  Ironically, when justice P N Bhagwati, who delivered the majority judgment in the first judges case, became Chief Justice of India in July 1985, his recommendation of names of judges to be appointed in the highest court were not acceptable by the government. The government relied on his own majority judgment in the First Judges Case and those names were not accepted.[ix] Noted jurist Late H.M.Seervai has criticized this judgment and called it “null and void” for not following the mandatory provisions of article 145(4) and (5) which are not a matter of form or technicality but a matter of substance.[x]

Problems and difficulties in the appointment of judges began to surface themselves. In consequence of this decision, the judiciary had political overtones and bias that were devoid of merit which also undermined judicial independence. It gave the executive powers to manipulate appointments. As a result, the appointments and transfers were done in arbitrary and selective manner. One such instance was during the emergency of June 1975 to January 1977; Chief Justice A N Ray had directed transfer of judges from one high court to another, not on the basis of exigencies of work but solely because those judges had decided certain important cases which had political overtunes against the central government. They were known as ‘punitive’ transfers.[xi]

Thus, in the backdrop of the excessive interference of executive in the judicial independence, the collegiums system came about as a result of the case, S.C.Advocates on Record Association v. Union of India[xii] in 1993 (and by a follow up president’s reference to the court in 1998.) This case is commonly known as the Second Judges Case. The case came about as a public interest writ petition filed in the Supreme Court by the Lawyers Association questioning several debatable and grave matters concerning the judges of the Supreme Court and the High Courts. The two important questions in this case were- whether the chief justice of India has primacy over judicial appointments and transfers and whether these matters were justiciable.[xiii]

The collegium system as the name suggests is basically the appointment and transfer of judges decided by a collegiums consisting of Chief Justice of India and two senior-most judges of the Supreme Court. The majority were of the view that Chief Justice was best equipped to know and assess the caliber of the candidates and their suitability and thus emphasized his role. The judgment held that the decision of chief justice was not his individual or personal decision but an opinion formed collectively by a colleguim. This case essentially tried to protect the independence of the judiciary. As per this case, the government’s view can be disregarded by the collegiums by reasserting its choice. The executive had little or no role in the appointment of judges as a result.[xiv] However, the selection of judges through collegium is not present in the constitution.

In 1998, during the second of the three Vajpayee governments, a presidential reference was made to the Supreme Court on issues arising out of the Second Judges’ Case.[xv] This is known as the Third Judges Case[xvi]. Nothing great came about from this case. In the Third Judges case the composition of the collegium was enlarged to address the concerns about ‘error and disagreement’ elements within collegium consultation and grave allegations of arbitrariness on the part of Chief Justice of India, the concept of “primacy” of the collegium over the executive was strongly reinforced.[xvii]

The Third Judges Case clarified that the Chief Justice should act as a part of the collegiums that consists of four senior most judges of the Supreme Court. Under this ruling the executive can ask the collegium to reconsider any of their recommendation. But if the collegium unanimously reiterates its recommendation then the appointment must be made.[xviii] By increasing the collegiums from two senior-most judges of Supreme Court to four senior most judges of the Supreme Court apart from the chief justice, it can be inferred that the court felt safety in a larger number as it would reduce bigotry and arbitrariness. The criticisms of the third judges case is that seniority of supreme court judges doesn’t always imply superiority of wisdom and also, what is the harm in consulting all the Supreme Court judges for appointing a High Court judge to be a Supreme Court judge

COLLEGIUM SYSTEM: A CLOSED DOOR APPOINTMENT

 Process of appointment of judge to higher judiciary, by way of collegium system, operated with high level of secrecy. Functioning of collegium system was opaque, which led to various speculations like wrong appointments, nepotism and corruption. Over the years, on various issues, credibility of the judiciary is under question. The collegium system has been criticised for its impracticality, lack of transparency and improper implementation.[xix] Besides the collegium’s deliberations are secret; the system is not transparent and the choice of a judge is only known when his name is forwarded to the government for formal appointment.[xx] Judges were qualitatively becoming illiterate and character wise dubious largely because the collegium has no investigative machinery or obligatory principles for selection. Consequently, favouritism, nepotism, casteism and other extraneous considerations spoilt the selection. In the absence of a performance commission, corruption started to creep into the process of judicial functionalism. Aghast, corruption and mediocrity, favouritism and influence had frequently been imputed to judges.[xxi]  Fali S Nariman also stated that “If there is one important case decided by the supreme court of India in which I appeared and won, and which I have lived to regret, it is the decision that goes by the title – Supreme Court Advocates on Record Association v. Union of India.[xxii] “The collegium,” senior lawyer Rajeev Dhawan says, “has created a cabal in court and we know nothing about how this cabal functions”.[xxiii]  In consequence, various unsatisfactory appointments were made. As a result, the judiciary became self-appointing.

 Moreover, the collegiums did not lay down any criteria for recommending judges to be appointed. Thus, this would again give scope for favoritism and bias. The Presidential Reference also provides that every communication with the consultee has to be in writing and the views should be communicated to the Government. There is no indication as to what happens if there is no consensus among the consultees or if the majority disagrees with the Chief Justice of India.[xxiv]  The process was not open to scrutiny by public and seniority had become the criteria for judging merit. These were some of the weakness in the schemes.

These models for judicial appointments have been unsuccessful for not being democratically accountable. There have been various defects and loopholes which have emerged in the course of various models for appointments requiring the need to rectify by a new model which will stand the test of time. A modern and model appointment procedure for judges in the 21st century must look at competency, integrity, diversity, etc in an integrated and holistic manner.

Systems of judicial appointments come in four basic configurations:

  1. Appointment by political institutions;
  2. Appointment by the judiciary itself;
  3. Appointment by a judicial council (which may include non-judge members);
  4. Selection through an electoral system.[xxv]

India is the only constitutional democracy where the judiciary appoints its own judges. The working of the constitution has revealed that the Chief Justices have not been able to hold on against the determined executive action and even where the Chief Justice is in a position to assert his point of view, he can wholly be subjective in his approach. All these aspects are not conducive to the healthy growth of the institution of judiciary.[xxvi] Therefore there is an urgent need to restructure the prevalent scheme with new devised model.

NATIONAL JUDICIAL APPOINTMENTS COMMISSION: FUTURE PROSPECTS

This year in the month of August, the Lok Sabha and the Rajya Sabha have passed the National Judicial Appointments Commission Act, 2014 (NJAC Act) and the Constitution (99th Amendment) Act, to give constitutional status to the National Judicial Appointments Commission (JAC) to appoint judges to the Supreme Court and High Courts.[xxvii] The 99th amendment to the Constitution inserts three new Articles — 124A, 124B, and 124C. The NJAC, the amendment provides, shall comprise the Chief Justice of India as its ex officio chairperson, the two senior-most judges of the Supreme Court , the Law Minister, and two ‘eminent persons’ to be nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition. The NJAC will be responsible for making binding recommendations to the President for appointing judges to the Supreme Court and to various High Courts.

The main object of the Judicial Appointments Commission Bill of 2013 was to ensure transparency and equal participation of both executive and judiciary whereby there would be proper system of checks and balances. This Act primarily dealt with constituting a Judicial Appointments Commission (hereinafter referred as ‘JAC’), structure, composition, functions, procedure for short listing of the candidates and power of JAC to make regulations. This model has been followed by countries such as, Malaysia, England and South Africa.

One of the questions that arise on the enactment of the Act is whether the Judicial Appointments Commission can overcome the drawbacks of Collegium system. As per the text of amendment functionally and structurally, the NJAC is perpetuating many of the basic deficits and perils of the collegium in a different manner.

The UN Basic Principles on the Independence of the Judiciary provide that individuals “selected for judicial office shall be individuals of integrity and ability with appropriate training or qualification in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of Recasting the Judicial Appointments Debate Centre for Law and Policy Research race, color, sex, religion, political or other opinion, national or social original, property, birth or status…”[xxviii]

Openness and transparency are the sine qua non for any fair method of selection. NJAC, like Collegium system appointment to the judiciary is a mystique process without consideration of benchmark based on merit. Method of appointment does not involve a transparent and democratic process like discussions, notifications, applications, interviews and consultations. It is again a paradox that despite the promise of equality of opportunity in public employment guaranteed under Articles 14 and 16 of the Constitution, an eligible person in India cannot apply for judgeships in higher judiciary. Nor is there any system of open nomination. In the U.K., from where India has adopted NJAC, the concept of equal opportunity is not alien to judicial appointments. The criteria for appointment as a Supreme Court judge are indicated in the statute. The Appointment Commission as per Crime and Courts Act 2013 in UK has a participative, representative and a democratic character. England and Wales, Scotland and Northern Ireland are properly represented in the process of consultation.

Federalism is, not just limited to matters of Centre-State relation. It is, on the other hand, a device to ensure a participative role for the representatives of the States constituting the nation, in the decision-making process. Larger the body, greater is the democratic content. In a vast country like ours, a six-member committee is undemocratic due to its centralized features. Continued and repeated consultations and screening in the British system ensure that no ineligible hand is inducted to the higher judiciary.  India needs to adopt this procedural fairness to curb the problems of corruption, favoritism and nepotism and ensure clean judiciary that is inevitable for the harmonious functioning of the judiciary.

For the appointment of High Court judges, the NJAC Act, 2014 requires the views of the Governor and Chief Minister to be given in writing and “as prescribed by the regulations.” But the Act is silent as to what happens if the Governor or Chief Minister or both objects.[xxix] It is criticized that the Constitution (99th Amendment) Bill, 2014 and the National Judicial Appointment Commission Act, 2014 are both seriously flawed and contrary to elementary principles of constitutional law. Both laws will also be wholly unworkable in practice.[xxx]

In addition, there is no requirement for the eminent persons to be from legal background. There is no clarity as to what happens if there is a deadlock? Is there any quorum? What are the provisions for removal of the members of the JAC when necessary? What if the veto power is misused to appoint someone undesirable?

It is also important to note that the Supreme Court has dismissed a few writ petitions challenging the constitutional validity of the Constitution (99th Amendment) Bill and the National Judicial Appointments Commission Bill, 2014.

The detractors argue that the proposed laws vest excessive power in the executive, including a potential ability to veto nominations, thereby impinging on the independence of the judiciary.[xxxi] There is also a flaw is the failure to give supremacy to the views of the judges in the selection process. Also, the composition, structure, voting etc, is designed by a statute (NJAC Act) and it is not amended by the constitution. Thus, it is vulnerable to statutory amendment by a simple majority in Parliament or even by ordinance. This is another serious drawback. However, the better approach would be that the proposed Article 124A of the Constitutional Amendment be expanded to include the composition of the JAC and the process of appointment. If not, it will potentially be open to abuse by temporary majorities in Parliament, thus posing a threat to the rule of law.[xxxii]

Section 6(4) of the NJAC Bill envisages consultation with senior-most judges and eminent advocates in the High Courts. But their opinion is not binding on the NJAC in selecting High Court judges. Section 6(7) says the views of the Governor will be elicited but, again, these are not binding. Thus, those at the Centre, through the NJAC, will select the High Court Judges, despite their lack of familiarity with the institutions of High Courts and lack of State-level mechanism for an open system for assessment of individual merit. This nullifies the constitutionally guaranteed federal traits in the realm of judicial appointments.[xxxiii] Despite these drawbacks, it is seen that National Judicial Appointment Commission would be a better alternative to the collegium system.

CONCLUSION

In conclusion, by decentralizing the power to appoint by ensuring representations from various interest groups, it can act as a check on arbitrariness and prejudice. The NJAC might not be as broadly constructed as the U.K. Commission, but its constitutional sanction will infuse in the process of judicial appointments an enhanced democratic involvement.

 Though the new model is also subject to criticisms, by far, compared to the previous models of judicial appointments, the NJAC model seems to work better but only time will decide that.  It is suggested that supremacy must be given to the judiciary as long as they are accountable for their decisions.  At present, there is apprehension of NJAC perpetuating functional drawbacks of the Collegium system can be countered by adopting procedural fairness. Central government needs to come up with regulation ensuring transparent and democratic functioning of NJAC. It is also recommended that merit should be given weight as opposed to seniority. Diversity could also be encouraged in terms of gender, ethnicity, etc without compromising on merit.  The success of the new model   can only be decided by the test of the time, hopefully this a step forward in building a strong, independent and credible judiciary.

References

[i] Speech delivered in the seminar on Appointment of Judges conducted by the Bar Association of India and the Indian Society of International Law on 17-18 September, 1999.

[ii] (1991) 3 SCC 655.

[iii] John Varghese, Judicial Appointments- The domain game, SSRN electronic journal, p. 4 (2010).

[iv] S.P. Gupta v Union of India , A.I.R.1982 S.C. 149.

[v] Abhishek Sudhir, Restoring the judiciary’s credibility, The Hindu, (Nov. 15, 2014), https://www.thehindu.com/opinion/lead/restoring-the-judiciarys-credibility/article6242504.ece

[vi] Law Commission of India, 214th Report, 14.

[vii] Harsh Gagrani, Appointment or Disappointment: Historical Backdrop and Present Problems in the Appointment of Judges of Indian Judiciary, SSRN electronic journal, p. 8 (2009).

[viii]  Dua, ‘Study in Executive-Judicial Conflict’, p. 464.

[ix] Extracted from the autobiography of F S Nariman ‘Before Memory Fades An Autobiography’ Chapter 16, Hay House, 2010.

[x] H.M.Seervai, Constitutional Law of India (Silver Jubilee Edition 4th ed. Vol 1, 1991)

[xi] Supra Note 9.

[xii] S.C.Advocates on Record Association v. Union of India , A.I.R.1994 S.C. 268.

[xiii] Abhinav Chandrachud, The Informal Constitution-Unwritten criteria in selecting judges for the supreme court of India 121-122 (Oxford University Press 1st ed. 2014)

[xiv] T R Andhyarujina, Appointment of Judges by Collegium of Judges, The Hindu, ( Nov. 4, 2014), https://www.thehindu.com/opinion/op-ed/appointment-of-judges-by-collegium-of-judges/article66672.ece

[xv] Raju Ramachandran, Judicial supremacy and the collegiums, (Nov. 8, 2014), https://india-seminar.com/2013/642/642_raju_ramachandran.htm

[xvi] Special Reference No. 1 of 1998.

[xvii] Purushothaman, Purush, Higher Judicial Appointments in India – The Dilemma and the Hope: Trusting the Wisdom of the Generations (September 10, 2012). NUALS L.J. Vol. 8, 2014.

[xviii] Pran Chopra, The Supreme Court Versus the Constitution: A Challenge To Federalism 169 (Sage publication Pvt ltd, 1st ed. 2006).

[xix] N H Hingorani, Collegium System of Judicial Appointments : Constitutionally Invalid, (Oct. 28, 2014), https://www.lawyersupdate.co.in/LU/1/1591.asp

[xx] Supra Note 13.

[xxi]  V R Krishna Iyer, Time for change, Frontline, (Oct. 21, 2014), https://www.frontline.in/static/html/fl2805/stories/20110311280510600.htm

[xxii] Supra Note 9.

[xxiii] Anuradha Raman, Order Order Order!, Outlook, (Nov. 6, 2014), https://www.outlookindia.com/article/Order-Order-Order-/264322

[xxiv] Supra Note 6.

[xxv] United States Institute of Peace, Judicial Appointments and Judicial Independence, https://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf (last visited Oct. 30, 2014).

[xxvi] Law Commission of India, 121st Report, 41.

[xxvii] T. R. Andhyarujina, Don’t close the door on NJAC as yet, The Hindu, (Nov. 9, 2014), https://www.thehindu.com/opinion/op-ed/dont-close-the-door-on-national-judicial-appointments-commission-as-yet/article6350842.ece

[xxviii] Article 10, UN Basic Principles on the Independence of the Judiciary.

[xxix] Arvind P. Datar, A fatally flawed commission, The Hindu, (Oct. 26, 2014), https://www.thehindu.com/opinion/op-ed/national-judicial-appointments-commission-a-fatally-flawed-commission/article6326265.ece

[xxx] Ibid.

[xxxi] Suhrith Parthasarathy, Safeguarding judicial autonomy, The Hindu, (Oct. 22, 2014), https://www.thehindu.com/opinion/lead/national-judicial-appointments-commission-bill-safeguarding-judicial-autonomy/article6347268.ece

[xxxii] Recasting the Judicial Appointments Debate: Constitutional Amendment (120th Amendment) Bill, 2013 and Judicial Appointments Commissioner Bill, 2013

8-9 (Centre for Law and Policy Research, Working Paper No.1, 2014).

[xxxiii] Kaleeswaram Raj, Federalism in judicial appointments, The Hindu, (Nov. 2, 2014), https://www.thehindu.com/opinion/op-ed/federalism-in-judicial-appointments/article6416552.ece

BIBLIOGRAPHY-

 

WEBSITES-

 

  1. ssrn.com
  2. thehindu.com
  3. outlookindia.com
  4. lawyersupdate.co.in
  5. frontline.in
  6. india-seminar.com

BOOKS-

 

  1. Before Memory Fades An Autobiography by F S Nariman.
  2. The Informal Constitution-Unwritten criteria in selecting judges for the supreme court of India by Abhinav Chandrachud.
  3. The Supreme Court Versus the Constitution: A Challenge To Federalism by Pran Chopra.
  4. M.Seervai, Constitutional Law of India by H.M.Seervai.
  5. Choosing Hammurabi-Debates on Judicial Appointments by Santosh Paul

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