To be truly transparent

Only a full-time commission, which is independent of the government and the judiciary, can impart transparency and credibility to the system of appointments to the higher judiciary

The Constitution of India gave the higher judiciary another important function in addition to adjudication of disputes: to regulate the executive and legislature to stay within the bounds of their powers — to prevent the executive from violating the laws, the Constitution and the fundamental rights of people guaranteed by the Constitution, and the legislature from violating the Constitution. The Supreme Court was anointed the final arbiter of the Constitution, and in 1973, in the landmark Kesavananda Bharati case, it held that even a constitutional amendment could not violate the basic structure of the Constitution.

For this reason, the independence of the judiciary from the executive and legislature has been regarded a cornerstone of the Constitution, and the Supreme Court has held it as an inviolable part of the basic structure of the Constitution. It is on this basis that the Supreme Court, in the Second Judges Case in 1993, took over the power of appointing judges from the executive to itself, holding that the government’s primacy in appointing judges would also compromise the independence of the judiciary. The independence of the judiciary was seen not just as functional independence but independence in manner of appointments.

Opacity in appointments

Since then, a collegium of three/five senior-most judges of the Supreme Court have had the decisive say in selecting judges to the Supreme Court/high courts. This creative reinterpretation by the Supreme Court of the Articles of the Constitution dealing with appointment of judges has improved independence of the judiciary, inasmuch as judges appointed subsequently are less liable to be politically partisan or be influenced by the executive. It has, however, not fully solved the problem of independence, since judicial independence is also compromised by the lure of post-retirement jobs in commissions and tribunals, in the hands of the executive, or the permission for foreign trips for judges, also in the hands of the government.

When the power to appoint was with the government, especially in the later years, the government often used it to appoint politically partisan or subservient judges. Also, since there was no transparency, appointments were often arbitrary and nepotistic. With appointments taken over by the judiciary, the government’s ability to influence the appointments and thus appoint politically partisan or pliable people got reduced, but the problem of nepotism and arbitrariness continued. The collegium also did not lay down any criteria for appointments or any method for evaluating candidates on those criteria. It also did not lay down any system for transparency in appointments. Thus, appointments continued to be made in an arbitrary and nepotistic manner with the people not being informed about who was going to be appointed and on what basis. Earlier it was said that in order to become a judge, one did not need to know the law but the law minister. It is now said that one need not know the law but the existing collegium of judges to become a judge.

In order to regain some control over appointments, the government introduced the National Judicial Appointments Commission (NJAC) Act. This Act provided for a selection committee of six people, which included three senior-most sitting judges of the Supreme Court, the Law Minister, and two persons to be selected by a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. It also provided that the Secretariat of the Appointments Commission would be in the Law Ministry. It further provided that any two members of the NJAC could veto the recommendation of the other four.

Government vs judiciary

Experience has shown that the Prime Minister and the Leader of the Opposition (who also hopes to become Prime Minister) are usually in agreement about appointing weak and pliable people to regulatory institutions and those who select members of such institutions, in order to weaken regulation of the political class. There was thus justified apprehension that the NJAC would dilute independence of the judiciary by giving the government a significant say in appointments. Therefore, the Supreme Court struck down the constitutional validity of the amendment introducing the NJAC as well as the NJAC Act on the ground that it diluted the independence of the judiciary which was part of the basic structure of the Constitution.

However, the Supreme Court did not take this opportunity to lay down any system of transparency in selection of judges. On the other hand, it left it to the government to devise a memorandum of procedure for selecting judges, which would have to be approved by the Chief Justice of India. This has resulted in the government trying to introduce clauses that could enable it to veto any recommendation on national security considerations. The memorandum of procedure is therefore stuck, with no agreement in sight between the government and the Chief Justice of India. The government is using this to delay appointments recommended by the collegium. Judicial appointments have thus become hostage to the fight between the government and the judiciary on who should control appointments.

Need for a full-time body

The Campaign for Judicial Accountability and Reforms has for long recommended that selection to the higher judiciary must be made by a full-time (not ex officio) body, which is independent of the government and the judiciary and which goes about the selection in a rational and transparent manner. The business of selecting hundreds of judges in a year to the higher judiciary, if done properly, would require at least a thousand candidates to be considered and comparatively evaluated over multidimensional criteria in a fair and rational manner. This would require a full-time body, which could devote itself to this process, with a large secretariat. The job cannot be done by an ex officio body of judges and the law minister, who are extremely busy persons.

There also needs to be some transparency in the selection to prevent arbitrariness or nepotism. Minimum transparency would require that the criteria for selection of judges be made known, the comparative evaluation of candidates also be made known, and names of shortlisted/selected candidates announced before appointment, so that those who have relevant information about the candidate can send it to the appointing authority. Basic criteria to judge the competence of a candidate should include integrity, competence, judicial temperament, common sense and sensitivity towards the problems of the common man, among others. A system modelled on the British Judicial Appointments Commission, which follows a method to evaluate candidates based on predetermined and set criteria, is well worth considering.

The members of the selection authority could be retired judges or even laypersons and should be selected by a broad-based selection committee in which the government and the judiciary play a role, but not a dominant one. It is only such an independent full-time body that can be expected to select judges in a fair and rational manner.

End the turf tussle

While the Right to Information Act made the judiciary a public authority, the judiciary has stymied the right to information vis-à-vis itself and consistently refused to disclose information on its administrative or judicial functioning. Information on judicial appointments and pending judgments has been refused by the Supreme Court, that has challenged every decision of the Central Information Commission asking it to disclose such information.

Appointments to the higher judiciary are too serious a business to be left to people who do not have any time and who function without any system or transparency. It is imperative that a system for selection of judges be put in place and a full-time independent body be constituted to ensure that only those persons who are in tune with the egalitarian constitutional philosophy, and who have some sensitivity and understanding about the common people of the country are appointed.

The road to securing judicial accountability is long and hard, but proper accountability for such a powerful and vital organ like the Indian judiciary is essential for the survival of the rule of law and democracy in this country. The time has come for the people of the country, who are the real stakeholders in an honestly functioning judiciary, to assert themselves and demand for such a body to be appointed and this scuffle over judicial appointments to be laid to rest.

Prashant Bhushan is a public interest advocate and convener, Campaign for Judicial Accountability and Reforms.