ON 25 JUNE THIS YEAR, the Madras High Court Advocates Association (MHAA), a large, motley crew of practising lawyers in Chennai, made an unusual demand. They wrote to the chief justice of India and his four most senior colleagues—the “collegium” responsible for selecting judges to the higher judiciary—requesting that a list of 15 people recommended for elevation to their High Court’s bench be rejected. The list of persons nominated by the Madras High Court’s acting chief justice, in consultation with his two most senior colleagues, “falls far short of the standards set out in the various judgments of the Supreme Court,” the MHAA wrote in the first of a series of representations. What’s more, the proposed candidates had been selected, according to the MHAA, based on a number of extraneous criteria, including caste, religion, office affiliations and political considerations.
Their assertions were soon echoed by the Forum for Integrity in Governance, a Chennai-based civil society coalition. On 24 July 2013, the group, which comprises, among others, the advocate Prashant Bhushan, the former civil servant and adviser to the United Nations BS Raghavan, and former Railway Board chairman YP Anand, wrote to the president of India demanding that he turn down the controversial list of proposed judges. “We understand,” said the forum, “that [the judges] are being chosen on divisive considerations and intense, unhealthy lobbying.” Since then, according to news reports, eight of the 15 nominees have been cleared by the Supreme Court’s collegium, and await only the president’s official seal on their appointments.
Charges of prejudice have been levelled against such collegia before. In May 2013, more than 1,000 lawyers of the Punjab and Haryana High Court’s Bar association signed a resolution, contesting the recommendation of seven nominees for elevation to the court’s bench. The candidates, selected from a pool of lawyers and judges of the lower judiciary with more than ten years of experience, were ill-suited to the rigours of judicature, according to the Bar. “Nepotism and favouritism is writ large,” the lawyers wrote. “We all need to rise to the occasion and oppose such recommendation.”
As it happens, these remonstrations come at a time when the central government has been hankering for a new method to appoint judges in the country. The chief justice of India, P Sathasivam, (as his predecessor Altamas Kabir did) reiterated his support in June this year for the collegium system, an extra-constitutional method devised by the Supreme Court in the early 1990s to allow the chief justice and his or her colleagues primacy in matters of judicial appointments. But the government, with the apparent backing of the opposition, is intent on pushing through a bill in the monsoon session of Parliament to amend the constitution and establish a National Judicial Commission. This proposed body will be chaired by the Chief Justice of India and is likely to consist of the two other senior-most judges of the Supreme Court, the Law Minister, the Leader of the Opposition, and an independent member.
The process of making judicial appointments has undergone a few significant revisions since Independence. When the constitution was being prepared, ensuring an autonomous and disinterested judiciary was continually at the forefront of the Constituent Assembly’s thoughts. The drafters, wrote historian Granville Austin in The Indian Constitution: Cornerstone of a Nation, “went to great lengths to ensure that the courts would be independent, devoting more hours of debate to this subject than to almost any other aspect of the provisions.”
The constitution says, in broad terms, that judges to the Supreme Court are to be appointed by the President in consultation with the Chief Justice of India and such other judges that he deems fit. Judges to the high courts are also to be appointed by the President, after consulting the Chief Justice of India, and the governor of the concerned state and the chief justice of the concerned high court. Plainly read, the appointment of judges to the higher judiciary is essentially the prerogative of the executive, given that the President is mandated to act according to the advice of the Council of Ministers.
But, according to senior advocate Fali S Nariman, a convention was fashioned in the 1950s, which saw the executive rarely, if ever, deviate from the opinion of the Chief Justice of India. It was only in the 1960s, Nariman explains in his autobiography Before Memory Fades, that things began to change. The preceding decade had seen the government’s “avowed policy of abolishing the old zamindaris” come unstuck at the hands of the Supreme Court. The judges’ edict that compensation for expropriated land meant a “full compensation”, was rendering the government’s policy implausible. This difference starkly divided the two branches of the State, Nariman writes; it began, among other things, to undermine the unspoken consensus between them. By the 1970s, the popular convention that had hitherto prevailed was slowly replaced, and the executive began to assert its privilege over judicial appointments.
This trend was given legal imprimatur in 1981 when a bench of seven judges of the Supreme Court ruled (via a slim majority), in what is now known as the “First Judges Case”, that the recommendation of the Chief Justice of India was not binding on the executive. The President, the court held, was merely required to consult the Chief Justice. The decision was well in keeping with a plain, textualist reading of the constitution, but its impact proved costly: in its immediate aftermath, the recommendations of the Chief Justice of India were often ignored.
Then, in 1993, a bench of nine judges in the “Second Judges Case”, at the behest of the Supreme Court Advocates-on-Record Association, reconsidered the process, but Justice JS Verma’s majority decision came to establish a completely new system of appointment. Pre-eminence, Verma wrote, would be given to the opinion of the Chief Justice of India and his two most senior colleagues. The prerogative in appointments of judges was, in one wide sweep, transferred from the executive to the judiciary. The “collegium” scheme that the court thereby designed was meant to give “function” to the constitution: an imaginative exercise to make the document more workable. But it was intrinsically an affront to the concept, and the practice, of separation of powers that the judiciary ordinarily found befitting to assert. The decision was re-affirmed in 1998, when the second of the Vajpayee-led governments sought clarifications on the workings of the system, and recent attempts to have these decisions reconsidered have proved futile.
We rely today on a process that palpably impinges justice delivery. Not only is this process extra-constitutional, it also violates the constitution’s basic structure. (That the constitution’s makers, in spite of extensively debating the provisions, couldn’t get it right either says something about the complexities involved in tailoring an alternative and valuable system; any alternative must not only tackle the inherent opacity of the present process—including the need for clearly delineated criteria on what makes a candidate deserving of elevation—but must also ensure that the executive doesn’t transgress on the independence of the judiciary.)
The current protests over the collegium’s decisions decry the lack of candidates’ suitability, but past reports have often indicated that good candidates have been denied elevation, especially to the Supreme Court, largely due to the whims and fancies of the collegium. In an excerpt from his upcoming autobiography, The Story of a Chief Justice, published in Firstpost, UL Bhat, former chief justice of the High Courts of Gauhati and Madhya Pradesh, describes how he was denied a spot in the country’s top court due to his perceived “irreverence” to senior judges. In 2008, AP Shah (who would later author the historic Delhi High Court ruling on Section 377 of the Indian Penal Code) was denied elevation to the Supreme Court based, it was widely accepted, almost entirely on the bias of the collegium. Rebuffing Shah was “a travesty of justice,” said senior advocate Rajeev Dhavan, at the time. “The collegium works on rumours not facts.” Perhaps most symptomatic of the collegium’s failings was the infamous recommendation to the Supreme Court, of PD Dinakaran in 2009. Fortunately for the collegium, Dinakaran, who was facing a string of corruption charges, would resign as the chief justice of the Sikkim High Court amid lingering threats of impeachment.
Notwithstanding the fact that the President is now virtually bound by the Chief Justice of India’s recommendations, delays abound when the executive finds a candidate unsuitable for any reason. Many potential alternatives to the present process are no better, but the inevitable standoff between the two wings of government in the collegium system ultimately results in judges appointed by compromise, at the cost of transparency, and often merit (which is no doubt a complex concept by its own). Given that the Chief Justice and his colleagues lack the wherewithal to make nominations on their own accord, several posts lie vacant for months—and sometimes years—together, nurturing an ever-increasing pendency in litigation. As on 8 August, according to the Times of India, 280 posts are vacant across the country’s 24 high courts.
Before resorting to an urgent constitutional amendment to bring in place a National Judicial Commission, we need a debate on how best to implement the first principles of democratic governance. Merely fusing some members of the executive and the judiciary together in a commission is not an optimal solution, even if it seems so on the surface. But what is clear is that neither system so far—the one which afforded the executive the primacy and the one which gave the Chief Justice of India the final say—has helped in promoting transparency and merit. (For example, even a consultation with a high court’s chief justice can prove ineffective given that the chief justice is, by policy, appointed from a different state, rendering him incapable of making the best possible assessment.) We need to think about how a true separation of powers can be attained. How can such checks and balances as are necessary on the judiciary be instilled without allowing the executive the prevailing right on judicial appointments?
The United Kingdom’s model represents, if nothing else, a good starting point for deliberation. In 2006, the country ended 700 years of legal tradition by tasking a new “Judicial Appointments Commission” with the job of appointing judges. The commission is effectively a body divorced from all three wings of government, carrying out its work at arm’s length from the ministers. It comprises 15 members: two lawyers, five judges, one tribunal member, one magistrate, and six lay people, including the chairperson. It has a full-time staff of about 70 people, who assist the members in making the appointments. Vacancies are advertised, and lawyers are advised to apply for positions. Candidates are shortlisted solely on merit and undergo interviews, tests, and other selection processes that are in place. Merit is judged on the basis of intellectual capacity, personal capacity (integrity, independence of mind, objectivity), an ability to understand and deal fairly, authority and communication skills, and efficiency.
A National Judicial Commission would infuse an element of executive involvement to what is now the role of the collegium. But questions on what criteria are to be applied in assessing a candidate, the levels of transparency in nominations, the mode of collecting and assimilating details about the candidates, and other such important considerations, have been conveniently kept out of the public debate. The commission, in its present form, does not seem to confront a problem that is both theoretical and illustrative: the criteria we now use are so secretive that even if merit is one of them, we have little idea as to what constitutes merit. How will the Chief Justice of India and his colleagues (including potentially the Union Law Minister) sitting in New Delhi ascertain the qualities of an attorney, who has practised all his life, say, in Gangtok?
India needs two things: one, a commission divorced completely from the executive, which would nonetheless grant no primacy to the opinion of the Chief Justice; and two, a methodical, transparent approach in evaluating candidates. Without ensuring either of these fundamental requirements, any National Judicial Commission, to borrow the senior advocate Anil Divan’s aphoristic observation based on Justice PN Bhagwati’s phrasing in the First Judges Case, will retain the mystique of the “sacred rituals”, while merely increasing the number of “high priests” administering them.
Suhrith Parthasarathy is a lawyer and writer who currently practises as an attorney at the Madras High Court. He graduated in law from the National University of Juridical Sciences, and in journalism from Columbia University.