Federalism in judicial appointments

It is erroneous to conceive the issue of judicial appointment as a tussle between the executive and the judiciary for a final say in the process of selection to the higher judiciary. Picture shows the Madras High Court. Photo: V. Ganesan   | Photo Credit: V_GANESAN

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 (NJAC Bill). The judgment is correct, but not for the reason that the Bills are faultless. The Bills are yet to attain the status of law as defined under Article 13 of the Constitution. A premature opposition to the legislative move is antithetical to the facets of deliberative democracy. Article 111 of the Constitution empowers the President to return the Bills for reconsideration, which implies the possibility for modifications. Article 368 says an amendment of the Constitution could be done generally when a Bill is passed by “a majority of not less than two thirds of the members present and voting” in each House. Proviso to Article 368(2) clarifies that in certain cases, ratification by the legislatures of at least one half of the states is mandatory. The Union judiciary and the High Courts in the States come within the ambit of this proviso. This would mean that in a federal system, despite the clearance by Parliament, States do have a say in any attempt for a major constitutional amendment concerning the judiciary. It is therefore incorrect to think that the Bills mark an end in themselves. As such, there is scope for further debate and a need for it.

A failed experiment

The collegium is not just a failed experiment, but has also been undemocratic. Therefore, the real issue is whether the proposed amendment by way of Article 124A, B and C would really democratise the method of appointment. It is erroneous to conceive the issue of judicial appointment as a tussle between the executive and the judiciary for a final say in the process of selection to the higher judiciary. The present Bill is designed in such a way that both the judiciary and the executive have a role in the process. It is generally perceived that just two members can veto the majority decision in the NJAC and therefore the mechanism is defective. I would, however, say that this is a scientific device to oust the ineligible — provided the system is fair and transparent.

> Read: Safeguarding judicial autonomy

But the system is not supposed to be transparent, going by the text of the proposed amendment. Functionally and structurally, the NJAC would perpetuate many of the basic deficits and perils of the collegium in a different manner. A secret process without any benchmark that does not even accept the need for assessment of inter se merit would be constitutionally legitimised. No discussions, no notifications, no applications, no interviews, no consultations and ultimately no democratisation either in the process or in the institution. Openness and transparency are the sine qua non for any fair method of selection.

Conceptual flaws

There is a serious conceptual flaw with the present legislative design. An uncomfortable dichotomy between the constitutional provision and statutory scheme emerges through the new move. While the 99th Constitution Amendment Act would create space for the new NJAC, its composition and voting pattern are designed not by the amended Constitution, but by a statute, namely the NJAC Act. This would indicate that even the sole advantage of the NJAC i.e., the requirement for support of five out of the six members for a valid selection is vulnerable to statutory amendment by a simple majority in Parliament. Thus, even without a constitutional amendment, the limited virtues of the proposed NJAC would be taken away.

Federalism is a basic feature of the Indian Constitution as held by the Supreme Court in S.R. Bommai (1994). On account of the NJAC, it is not the “basic feature” of judicial independence that is endangered, as is widely misconceived. The judiciary and the executive at the centre will annihilate even the limited role for the States in the selection process in the High Courts. Going by the text of Article 217 of the Constitution, even after its alteration by the Supreme Court in the Second Judges case (1993) and Third Judges case (1998), the Governor of the State and the collegium at the High Court level have a participative role in selection of judges in the High Courts. In the system now proposed, the NJAC or the President of India is not bound by the recommendation of the Chief Justices of the High Courts or the Governors. 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. Section 6(7) says the views of the Governor will be elicited but, again, those 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.

A clean judiciary is a constitutional imperative for any working democracy

The NJAC thus needs to be restructured and its procedure revamped. Before ratifying the Bills mechanically, it is for the State legislatures to seriously ponder over the matter, for the issues are closely associated with the state’s role in the appointment process.

The illustrative case of the U.K. needs to be emphasised in the Indian scenario, for it shows how the federalist values are incorporated both in the structure of the Commission and in the procedures adopted. The Constitutional Reforms Act (CRA), 2005 in the U.K. was substantially altered by way of the Amendment in 2013. At present, there is a 15-member Commission doing the job of selection of judges to the higher judiciary and tribunals. Selection commences with an open vacancy notification.

> Read: A fatally flawed commission

It is again a paradox that despite the promise for equality of opportunity in public employment guaranteed under Articles 14 and 16 of the Constitution, an eligible person in India cannot apply for judgeship in higher judiciary. Nor is there any system of open nomination. In the U.K., the concept of equal opportunity is not alien to judicial appointments. The notification is followed by a series of statutory consultations. The criteria for appointment as a Supreme Court judge are indicated in Sections 50 to 52 of the statute. The Appointment Commission 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, therefore, not just a matter of Centre-State relation. It is, on the other hand, a device to ensure participative role for the representatives of the States constituting the nation, in the decision-making process. The larger the body, the greater the democratic content. In a vast country like ours, a six-member committee is undemocratic due to its centralist features. Even the laymen are part of the Commission in the U.K. It is no more an employment generation scheme. Continued and repeated consultations and screening in the British system ensure that no ineligible hand is inducted to the higher judiciary. The only valid criticism against the method in the U.K is that selection becomes a time-consuming process. But there is no allegation of judicial corruption. Nor is there allegation of sycophancy or nepotism. India too can afford such procedural fairness, for the same would ensure a clean judiciary, which is a constitutional imperative for any working democracy. But the Bills in their present form are conceptually sterile and incapable of bringing in radical reforms. This situation calls for dynamic legislative activism at all levels.

(Kaleeswaram Raj is a lawyer practising in the Supreme Court and Kerala High Court. E-mail: )

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Printable version | Oct 16, 2021 8:41:39 AM |

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