In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up. Now, after a meeting held on September 16, the body has made proposals to alter the existing composition of various High Courts. When these recommendations are notified, new Chief Justices will be appointed to as many as eight different courts, five existing Chief Justices will swap positions with others, and a slew of puisne judges will be moved to new courts.
A need for transparency
These recommendations are seen as reflective of a new and proactive collegium. A resolve for swiftness is fine as far as it goes; clearing up vacancies is a minimal requirement of a functioning system. What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions. These misgivings are usually seen in the context of a battle between the executive and the judiciary. Less evident is the effect that the failings have on the status of the High Courts. Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.
For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court. The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court. Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion. We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts. This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs. But whatever the rationale, surely the public has a right to know.
The middle course
Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary. To that end, the process of appointing and transferring judges assumes salience. But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.
The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”. That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit. Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court. In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.
Where primacy rests
In this design, there is no mention of a “collegium”. But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”. What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”. Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.
This procedure has since been clarified. The collegium for appointments to the Supreme Court and for transfers between High Courts now comprises the CJI and his four senior-most colleagues, and for appointments to the High Courts comprises the CJI and his two senior-most colleagues. When appointing judges to the High Courts, the collegium must also consult other senior judges on the Supreme Court who had previously served as judges of the High Court under consideration. All of this is contained in a “Memorandum of Procedure” (MoP). But there is, in fact, no actual guidance on how judges are to be selected.
The NJAC and after
In 2015, Parliament sought to undo the labyrinthine procedures put in place by the Court through the 99th Constitutional Amendment. The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public. But the Court scuppered the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution. In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.
To be sure, the NJAC was far from perfect. There were legitimate fears that the commission might have resulted in the appointment of malleable judges. Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution; that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.
But when the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten. A new MoP, for instance, is nowhere in sight. The considerations that must go into the procedure for selecting judges is left unexplained. The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean. Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.
In the case of the latest set of recommendations, five Chief Justices of High Courts have been reshuffled. Our constitutional scheme envisages no power of administrative superintendence in the Supreme Court over the High Courts. But when transfers are made routine, when the process of appointing Chief Justices to High Courts is shrouded in secrecy, a de facto system of oversight is put in place.
Getting back the shine
It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with. Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution. Achieving this will no doubt require more than just a tweak in the process of appointments. But what is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
When Chief Justices are moved around with alacrity, and when they are accorded tenures lasting a matter of months, at best, it is impossible for them to make any lasting changes. At some point we must take seriously the task of reforming the existing scheme, because the status quo is ultimately corrosive of the very institutions that it seeks to protect.
Suhrith Parthasarathy is an advocate practising at the Madras High Court
