“Barter System of Appointments”: The Debate Over The Collegium System And The NJAC

By ATUL DEV | 29 September 2017

On 25 September, Justice Jayant Patel of the Karnataka High Court submitted his resignation to the president of India, reportedly after the president proposed transferring him to the Allahabad High Court. Patel was first appointed to a high court in December 2001, as an additional judge in in the Allahabad court. He was transferred to the Karnataka High Court in February 2016, where he was the senior-most judge after the chief justice in the state. His transfer to Allahabad was proposed less than a month before SK Mukherjee, the present chief justice of the Karnataka High Court, will complete his term, on 9 October. If he had accepted the transfer, Patel would have been the third in seniority among the judges in Gujarat.

The circumstances surrounding Patel’s resignation have invited criticism from many. During his stint in Gujarat, Patel had directed the Central Bureau of Investigation to conduct a probe into the death of Ishrat Jahan, a 19-year-old resident of Mumbai who was allegedly killed in an encounter Gujarat in 2004. Further, Patel had seemingly been passed over for elevation in the past. In September 2016, the president appointed five chief justices, four of whom were junior to Patel. In February 2017, the Supreme Court recommended nine names for appointment as chief justices of various high courts—Patel did not feature in the list, although he was senior to all those who did.

In the cover story for the June issue of The Caravan, Atul Dev reported on the former chief justice JS Khehar and, in particular, the tussle between the judiciary and the executive over the appointment of judges to higher courts. Dev examines how, through three landmark cases known as the First, Second and Third Judges cases, the Supreme Court held that appointments to the judiciary by the president must be on the basis of recommendations of a collegium of Supreme Court judges comprising the chief justice of India the next four senior-most judges. Though the Constitution only mandates that the decision must be after “consultation” with the chief justice, the court held that the concurrence of the judiciary was necessary for judicial appointments.

In 2014, the parliament passed the 99th constitutional amendment and the National Judicial Appointments Commissions Act, which sought to replace the collegium system of appointments and remove the primacy of the judiciary’s opinion. In October 2015, the Supreme Court struck down both the amendment and the NJAC act. In the following extract from his cover story, Dev discusses the arguments surrounding the NJAC debate, including the threat of political interference in the appointments process.

The Narendra Modi government locked horns with the judiciary over the question of appointments even before it passed the NJAC Act. In June 2014, a month after the government came to power, the Supreme Court collegium, headed by Chief Justice RM Lodha, recommended four names for appointment to the Supreme Court: Rohinton Nariman, Arun Mishra, Adarsh Kumar Goel and Gopal Subramanium.

As per the existing procedure, the government conducted background investigations on the proposed candidates through its intelligence agencies. For the first time since the introduction of the collegium system, the government sent a name back to the collegium. It asked that Subramanium’s appointment be reconsidered.

Subramanium withdrew his name from consideration and, in a letter addressed to Lodha, alleged that he was being targeted for displaying “independence and integrity” when he assisted the court twice in a case involving the 2005 encounter killing of Sohrabuddin Sheikh in Gujarat, then ruled by Narendra Modi. Amit Shah, Gujarat’s former minister of state for home affairs, was facing legal scrutiny in the case—and on Subramanium’s suggestion, the Supreme Court had barred Shah from entering Gujarat in 2010; he was allowed to return only two years later. In his letter, Subramanium said he was “sorry that the Supreme Court did not stand by me.”

“See, our prime minister is someone who has been on the wrong side of the judiciary,” a senior advocate in the Punjab and Haryana High Court told me. “So he understands the importance of judges—from the trial court to the Supreme Court.” He pointed out that, in 2012, when the Supreme Court-appointed special investigation team filed a closure report declaring that it had not found prosecutable evidence against Modi in the 2002 Gujarat pogrom, “there was a three-day function in Gujarat as a sort of the thanksgiving. So whatever facade he maintained outside, it was clear that he was hit hard by the judicial intervention in that matter.” (Zakia Jafri, the wife of the former MP Ehsan Jafri, who was killed in the riots, filed a review petition against the decision of the lower court to accept the SIT’s report; her petition is pending before the Gujarat High Court.)

Within three months of the Modi government coming to power, the NJAC Act was passed in both houses of parliament. By the end of 2014, it was ratified by 16 state legislatures and signed by the president.

The act proposed a six-member body to oversee the appointments and transfers of judges. The commission was to be headed by the Chief Justice of India, and its members were to be the second and third most senior Supreme Court judges, the law minister, and two “eminent persons” who would be appointed by a panel comprising the chief justice, the prime minister and the leader of the opposition. One of the two eminent persons would be either a woman or a member of a minority community, scheduled caste or scheduled tribe.

The act came into force in April 2015. That same month, the Supreme Court admitted a batch of petitions, including one filed by the Supreme Court Advocates On Record Association, challenging the constitutional validity of the NJAC. A five-judge bench led by Khehar began hearing arguments on 27 April.

The government argued that the NJAC would restore the constitutional mandate of checks and balances that, it claimed, was disturbed in 1993 by Verma’s judgment [in the Second Judges Case]. The attorney general, Mukul Rohatgi, emphasised that earlier drafts of the constitution presented in the constituent assembly had suggested that a panel be appointed to oversee the appointments process. He argued that Ambedkar had advocated the executive’s participation in judicial appointments. The word “consultation” in the constitution, Rohatgi said, could not possibly have meant “concurrence.” The government also put forth other arguments, among them that in the collegium system the independence of judges depended on their conscience, and nothing else; and that the Supreme Court had acted as a “third house of the parliament” while passing the judgment in the Second Judges case. It even criticised the judiciary for failing to grant relief to the victims of the communal riots of 1984 and 2002.

Dushyant Dave, arguing in favour of the NJAC, focussed his submissions on the image of the judiciary in the eyes of the public. “My lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court,” he said. “You will get a first-hand account of the rotting justice-delivery system. The kind of lawyers who are being appointed as judges is a disgrace.”

Ram Jethmalani was one of the lawyers arguing for the petitioners. He said that the NJAC Act was an effort to “subdue the judiciary” because the Modi government saw it as an obstacle to the implementation of its policies. He pointed out that the act was passed in both houses of the parliament without any substantial discussion on its merits—“because of the universal bias entertained by the legislature, against the judiciary.” The power the law minister wielded as the representative of the executive, Jethamalani argued, could lead to appointments being decided just on the basis of the minister’s vote. “Beware of all politicians at all times,” he said, quoting the American journalist HL Mencken, “but beware of them most sharply when they talk of reforming and improving the constitution.”

Anil Divan, also appearing for the petitioners, argued that the court had to take into consideration prevailing sociopolitical conditions while considering the merits of the NJAC Act. By October 2015, when the judgment was to be delivered, the Modi government had filled high positions in more than a dozen public institutions with eminently unqualified RSS ideologues. “It was a tricky situation for the bench,” a senior lawyer at the Supreme Court told me. “Surely a reform of the appointments process was in order, but the NJAC brought in government interference, which the court has been suspicious of ever since the Emergency. And this NDA government looks more like the Congress of the seventies than the Congress party itself.”

On 16 October, the bench voided the NJAC Act in its entirety, invoking the basic structure doctrine. Baxi, who in 1974 predicted that the Kesavananda judgment could become, “in some sense, the Indian Constitution of the future,” told me when I met him in December that “Kesavananda is the constitution now.”

Khehar, writing the majority judgment, said that the matter of appointments had been reviewed by constitution benches at the court several times in the past, and that the primacy of the judiciary had been well established as a constitutional norm. The government’s power to turn down a candidate on reasonable grounds, laid down in the memorandum of procedure, or MoP, Khehar argued, did allow the executive to participate in the process. “It is also not possible for us to accept,” he wrote, “that the judgment in the Second Judges case has interfered with the process of selection and appointment of Judges to the higher judiciary by curtailing the participatory role of the executive in the constitutional scheme of checks and balances.”

Khehar emphasised that Ambedkar had “rejected both the systems, where appointments to the higher judiciary were made by the executive, as well as by the legislature. Dr BR Ambedkar therefore, very clearly concluded the issue by expressing that it would be improper to leave the appointments of Judges to the Supreme Court, to be made by the President, on the aid and advice of the Council of Ministers, headed by the Prime Minister.” Given that Ambedkar had made this clear, Khehar concluded, the use of the word “consultation” in the constitution, where it recommended consultation with the chief justice and other judges, could not be read as carrying its “ordinary dictionary meaning.”

As to Ambedkar’s reservations about handing a veto on appointments to the chief justice, Khehar reiterated that the procedure laid down in the Second and Third Judges Cases was a participatory process between the two arms of the state. “We are satisfied that the entire discussion and logic expressed during the debates of the Constituent Assembly, could be given effect to by reading the term ‘consultation’ as vesting primacy with the judiciary, on the matter being debated,” he wrote.

Khehar also appeared to cast doubt over the robustness of civil society in the country. “An important issue,” he wrote in the conclusion of his judgment, “that will need determination before the organic structure of the Constitution is altered in the manner contemplated by the impugned constitutional amendment, would be whether the civil society … would be a deterrent for any overreach, by any of the pillars of governance? At the present juncture, it seems difficult to repose faith and confidence in the civil society, to play any effective role in that direction.”

He then quoted the senior BJP leader LK Advani, who had said, in June 2015, that the Emergency could happen again. “His views were dreadfully revealing,” Khehar observed. “In his opinion, forces that could crush democracy, were now stronger than ever before.”

He also noted that since the NDA government had come to power, the governors of 13 states and a lieutenant governor of a union territory had resigned. “A large number of persons holding high positions in institutions of significance, likewise resigned from their assignments, after the present NDA Government was sworn in,” he wrote. There appeared to be a system of spoils and patronage in place, he added, “wherein the political party which wins an election gives Government positions to its supporters, friends and relatives, as a reward for working towards victory.”

Even with the NJAC act struck down, few had faith in the collegium system. In his dissenting opinion in the NJAC case, Chelameswar had called for a “comprehensive reform of the system,” saying that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”

The former member of the higher judiciary told me that “there are no official meetings of the collegium.” According to this judge, “how this works is that they discuss prospective names wherever they meet.” The chief justice “discusses it one-on-one with other members of the collegium and there is no list that is prepared—nothing is on paper,” the former judge said. “And there is no scrutiny of judgments written by these prospective candidates—I mean they can’t show one instance when judgments of a person were examined by members of the collegium before that person is elevated to the Supreme Court. It is never done.”

I asked the former judge what the collegium took into consideration when appointing a candidate.

“They just talk, you know—somebody says that x is a good person,” the former judge replied. “That is all. They go by impressions. When a name is brought up, they consider what they recall about that name.” The former judge described it as a “barter system of appointments—give and take. One member of the collegium would say, ‘All right, I agree with your names but you add this particular name to the list.’ On the other hand, and this is how personal vendettas come in, one member could say, ‘I would agree with the other names if you take this one name out.’”

“I mean this is a farce, this whole collegium business,” the former judge said.

Atul Dev is a staff writer at The Caravan. 

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