The Modi government has got down to business pretty quickly to insert itself into the appointment of judges to the Supreme Court and the High Courts. Parliament has speedily passed the 99th Constitutional Amendment to create a National Judicial Appointments Commission, and another Bill mandating its procedures. The commission consists of the Chief Justice of India, his two seniormost colleagues, the Law Minister and two eminent persons. The persons last mentioned are to be chosen by the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha. The commission is to recommend persons for appointment as Chief Justice and other judges of the Supreme Court and the High Courts. The Bills as enacted were not circulated for public discussion and comment, although discussion on the broad contours of such a body has been going on for several years.The collegium
These enactments will replace the system which has held sway since 1992. In that year, the Supreme Court virtually rewrote the constitutional provisions which gave primacy to the government in such appointments, obliging consultation with the judiciary but not more. By a rather extensive use of its powers of interpretation, the court equated “in consultation with” to “concurrence of,” and thereby secured to itself the last word. It solidified this constitutional coup by vesting this power with its seniormost justices, thus creating the collegium which has held centre stage in controlling appointments to the higher judiciary viz. the Supreme Court and High Courts. In a remarkable interchange of roles, the court ruled that it would consult the government but not require its concurrence. For 22 years the heads of the Indian judiciary have enjoyed a power which is unparalleled the world over — that of having the first and last word in determining who joins its ranks. This has rankled successive governments, who could do little since public opinion seemed to be in favour of trusting the court rather than the political executive which had never quite got over the taint of wanting a committed judiciary, from the days of Indira Gandhi and Mohan Kumaramangalam.
The collegium has few supporters today. Jurists, retired judges, Bar leaders, political commentators and of course politicians seem to have made common cause in demanding that it be replaced with a broad based commission which joins other branches of the State with the judiciary. The collegium has been criticised for being opaque and secretive, and blamed for several controversial decisions. However, before the requiem is sung, fairness requires an ode. By insulating the judiciary from political influence at all the stages of appointment and further elevation and transfer, the collegium in effect did secure the independence of the judiciary; this major achievement should not be lost sight of now. It provided a measure of stability and some comfort by reposing such vital decision-making in the top bracket of the country’s most respected institution. Many appointments to the Supreme Court came under the seniority flag, with representation for region, minorities and women. It may have left out some of the best, but there was a predictability and foreseeability about most appointments which reduced lobbying and extraneous influence. Judges to the High Court were picked through a process involving its senior judges, with confirmation by the collegium. Certainly, cases exist of favouritism promoting unsuitable appointments or prejudice blocking deserving candidates — and these have been highlighted — but this has thrust into the shade the hundreds of cases of sound and deserving persons becoming and performing well as judges. Unfortunately, the collegium’s insularity negated the principles of transparency and participation, values which, ironically, have been embedded into our administrative jurisprudence by the judiciary. Names of prospective appointees were not shared, nor the criteria for evaluation. The Bar had no role to play. These factors ensured that when the institution came under challenge, it lacked popular backing. Indeed, if the collegium had not distanced its natural allies and given lawyers a role in its functioning it may not be facing extinction today. Governments may challenge a handful of unelected judges, but few politicians want to tangle with the numerous members of a vociferous profession.Bill and procedures
Proponents of the new Judicial Commission have made reassuring statements that the judiciary has the biggest say in its working and that its independence is not compromised. At first glance, yes; the judges are the largest single block in the composition of the body. The devil, however, is in the details, in this case the procedures mandated in the second Bill. Consider a couple. If any two members express disagreement on a candidate, the appointment cannot go through. Thus, in any selection, the unanimity of the three judicial members counts for naught if they cannot carry two out of the remaining three with them. This provision needs to be reconsidered. It will inevitably lead to an impasse, and since the country desperately needs judges, compromises will be made to secure consensus, leading to the entry of compromised candidates. Another serious problem arises with regard to the selection of the two eminent persons. They hold a crucial, perhaps even the determinative position. They can block an appointment by themselves, and in a disagreement between the judges and the Law Minister, their vote will swing the matter towards, or away from, the judges. In the all important selection of these members, the Chief Justice can be outvoted by the Prime Minister and the Leader of the Opposition. It would have been in the fitness of things to have provided a clause that no person can be appointed in this category to whom the Chief Justice is opposed, or at least to provide that there should be consensus. One hopes that at least a healthy convention will be established — that the Chief Justice has to concur in the selection of the eminent persons; but in our systems, conventions usually surrender to expediency.Choosing candidates
Ultimately, the system will succeed or fail on the one test — has it selected the best judges of capacity and independence? And here lies the basic truth — this will not come only from efforts of the chosen six. The judges on the collegium carry tremendous judicial workloads, the Law Minister runs a large ministry, and the eminent persons too will have important activities from which they gained their eminence. None of them can spare much time to attend to the selection of members of the higher judiciary who number close to 950, with over 200 vacancies, and an annual entry of about 100. A proper selection process mandates that every prospective appointee must be carefully evaluated — for ability, merit and above all, integrity. The names should be disclosed and complaints and objections looked into and evaluated. And every candidate must be interviewed. These judges deal with questions of life and death, public policy issues of vast import, corporate and property matters, matrimonial and custody claims. They have more powers than heads of corporations and bureaucracies. And yet, currently, the selecting authority does not even meet them before making the appointment; our senior collegium judges are too busy. The members of the proposed commission are also unlikely to find the time. That is why the commission needs to be backed up by a full-time search committee, composed primarily of retired judges along with other reputed members who will bring the time, the care and the circumspection to this task. In other countries, there are exacting methods to discard and choose candidates. The United States has the Judiciary Committee of the Senate comprising 18 members; it has the resources to unearth and examine every aspect of the candidate’s record. The United Kingdom has its Judicial Appointments Commission that comprises 15 judicial and lay members, with a staff of 70.
The permanent Search Committee proposed here to aid the National Judicial Appointments Commission has to function in a transparent way, involve the Bar and other stakeholders, and then present its evaluation to the commission. And crucially, this record of facts, investigation, examination of complaints and findings must become public knowledge. The Bill has the necessary preamble of transparency, participation and accountability in its Statement of Reasons; creating such a Search Committee is the way to translate platitude to performance. If we can cure or avoid the legislative snares, and bring in a full-time body to do the groundwork for the commission, we would marry efficiency to the sunshine processes of democracy. And then it will not be easy to reject the good names, nor bargain for the undesirable, for a watchful media and an informed public will step in.
(Sriram Panchu is a senior advocate. E-mail: firstname.lastname@example.org )