From the primacy of the executive in choosing judges to a limited role for it, M J Antony traces the swinging pendulum and the issues arising from the lack of transparency.
The Constitution of India, though unwieldy and adipose with over a hundred amendments, does not lay down detailed procedures for the selection and appointment of judges of the high courts and the Supreme Court. The relevant articles (124 and 217) only say that the President shall appoint judges after consultation with the Chief Justice of India in the case of Supreme Court judges. In the case of high court judges, the Chief Justice of the high court as well as the Chief Minister and the governor are consulted.
During the early decades of the Constitution, conventions and constitutional propriety were respected to a large extent. The calibre of the judges who adorned the benches then has not been matched since then. In the later period, especially during the Indira Gandhi regime, ‘consultation’ was gradually reduced to mere ‘information’ to the Chief Justice of the choice of judges. The joke then was that judges should know the law minister, not necessarily the law.
The bar attempted to change the situation in 1981 when political vendetta and arbitrariness were apparent in some transfers and non-appointment of additional judges of high courts. Some members of the bar moved the Constitution bench of the Supreme Court. After some six months of continuous hearing, seven judges wrote separate judgments which ran into more than 1,000 pages (SP Gupta vs Union of India). The court conceded primacy to the executive and asserted that “it was open to the central government to override the opinion given by constitutional functionaries”. Consultation did not mean concurrence, it affirmed.
The judgment agitated the bar and the judiciary. After a decade of discussion, the Supreme Court bar moved the court again. The nine-judge Constitution bench then reversed the view of Judges Case I, as the 1981 judgment was called. The new Judges Case II of 1993 laid down rules which were nowhere in the Constitution. Nor in the minds of the founding fathers like Dr Ambedkar.
The concept of ‘collegium’ consisting of the Chief Justice and two senior-most judges of the Supreme Court was introduced in Judges Case II. Later, the number was increased to a total of five in a Presidential reference, called Judges Case III. It was a pure invention of the judges and according to Article 141, what the court declares is the law of the land. Following this decision, it was the collegium that took crucial decisions which were sent to the government for final approval of the President. The government might object to any name, but the initiative was with the judiciary. Thus India became the only country in which the judges appointed judges behind a veil of secrecy. There are no standard answers for questions like: How are the candidates selected? What are the criteria? How are the names vetted?
The executive could not protest much against its loss of power as the word of the Supreme Court is final. Now it is the legal profession which is again agitated by the working of the collegium. The new system, like Orwell’s Animal Farm, only shifted power from one set of individuals to another. For one thing, the iron curtain of secrecy is still there, highlighted by the RTI case being fought by the Supreme Court in the Delhi high court. There is no denying of reports about sharing of spoils. Each retiring member of the collegium is said to have the privilege of naming a judge for elevation, much like a divine boon. Then, there is the universal phenomenon called “Uncle Judges”. When an advocate is elevated as a judge in the court in which he had been practising for a long time, he will have many lawyer-relatives there. These relatives stand a better chance for selection to the bench.
The ongoing alarums and excursions over the choice of Justice P D Dinakaran of the Karnataka High Court to the Supreme Court, holding up all appointments, has become the triggering point for an acrimonious debate on a better system of selection and appointment of judges of the higher judiciary. The crisis was long coming. Last year, a courier was daft enough to deliver a cash bag at the front door of a judge of the Punjab and Haryana high court, mistaking one Yadav for another. A few months later, the judiciary’s woes multiplied when a judge of the Calcutta high court was involved in another financial scam. There were several other ignominies of a lesser degree, spread over various courts.
The legal profession found support recently from the Law Commission which recommended the jettisoning of the present collegium system. Referring to the constitutional provisions on appointment of judges to the higher judiciary, its report handed over to the law minister in August this year said it was a “beautiful system of checks and balances” providing a balanced role to both the executive and the judiciary. “The delicate balance has been upset” by the Supreme Court’s judgments, which gave primacy to the collegium. “It is time the original balance of power is restored,” the commission said and suggested that it was for the government either to seek review of the judgments or enact a law restoring primacy to the executive in making appointments.
On the other hand, Chief Justice of India, Justice K G Balakrishnan, maintains that the present system has been working well. Some ex-chief justices also find merit in the system. In any case, the Chief Justice has no choice but to follow the rules set in Judges Case II.
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The present system, however, has not eliminated tension between the executive and the judiciary, which has always marked the selection process. There have been instances of the government rejecting the names recommended by the collegium and vice versa, though the details are not available from behind the opaque curtain where all these happen. According to Judges Case II, the government can seek a second opinion from the collegium and it can refuse to appoint a person recommended by the collegium provided it gives reasons.
The one point on which almost everyone agrees is that the system should be changed, and a more transparent process should be introduced. Though the other arms of the state also need correction, the judiciary needs urgent attention as it is the last resort of the citizens. However, at present no one knows how to clean up the Augean stables. The Judges Cases had recommended the establishment of a national judicial commission. The committee to review the working of the Constitution set up in 2000 had also recommended it to tackle corruption, which is an issue linked to selection and appointments. At present even the Chief Justice is helpless to tackle corruption as there is no institution or convention to deal with the problem. The idea of a national commission is again mired in controversy and a bill was allowed to lapse some years ago. Both the government and the judiciary are ambivalent on the proposal. The three crore arrears in the courts are bad enough; loss of credibility of the judiciary could be fatal for the country.