The recent public outcry for reforms has just skirted the judiciary, but it could be in the eye of the next storm if at least two issues are not sorted out urgently. They are the method of appointments to the higher judiciary and the removal of those who are found unfit for the office. The latter issue was played out half in the Rajya Sabha this month and is slated to continue in the Lok Sabha next month.
Both are abstruse constitutional questions that would not raise decibels in the maidans or TRP ratings, but are vital nevertheless. The first issue, that of appointment, has a chaotic history of three decades, in which the Supreme Court swung from one extreme to the other. Even now, it is waiting for a solution. Each time a Constitution Bench tried to rearrange the deck chairs, it has caused further disarray. The problem has bloated in the meanwhile.
Recently a Bench of two judges drafted 10 questions and referred them to the Chief Justice with a request to form a larger constitution Bench to reconsider the judgments of three earlier such Benches (Suraj India Trust vs Union of India). Since the earlier Benches consisted of seven or nine judges, the reconsideration should be done by a Bench of 11 judges or more. This duty comes at a time when seven of the 28 judges will retire this year. In a Catch-22 situation, the method of appointment itself is the question that looms before the remaining brethren.
The Constitution does not prescribe a detailed procedure for appointment of judges. Article 124 (2) talks in general terms and says the president shall appoint judges after “consultation with such of the judges of the Supreme Court and the high courts as the President may deem necessary.” In the first “judges case” of 1982, S P Gupta vs Union of India, there were jaw-breaking arguments for months over the meaning of “consultation”. Does consultation mean “concurrence” of the executive and the judicial authorities? In a 1,000-page judgment by seven judges, the answer given by the majority was no. Consequently the power was with the judiciary. Since the judiciary had just recovered from the ravages of the 1976 internal emergency, there was a howl of protest against the judges who took this view. They were accused of giving a big handle to the executive, even after the bitter experience of the emergency.
This angst led to the second “judges case” in 1993, heard and decided by a larger Bench. In this judgment, AOR Association vs Union of India, the court interpreted the provision of the Constitution in such a way that it ousted the role of the executive for all practical purposes and vested the power in a “collegium” of senior judges. This was purely an invention of the judicial mind, never thought of by the founding fathers.
It was seen as an aggrandisement of power by the judges with a sleight of their pens. The guns were now turned from the direction of the executive to the judicial collegiums, which functioned without transparency, spawning dark rumours. The public was put somewhat in the position of Buridan’s ass, between the executive and the judiciary. The president then referred a few weighty questions to the Supreme Court for its response. It returned the reference with some cosmetic touches to the system, but the Chief Justice of India retained primacy. It is this arrangement that is now under the scanner.
The Law Commission, in its 214th report submitted in 2008, has suggested an equal role for the judiciary and the executive in selection and appointments. It analysed the three judgments and recommended their reconsideration for clarity on the issue. In the Suraj case, the Attorney General has also acquiesced in this reference.
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The injudicious way in which the 1993 judgment came to be delivered figures in the paper submitted by counsel that was specially appointed by the court to assist it. Amicus curiae quotes a dissenting judge who was a member of the nine-judge Bench headed by the then the Chief Justice, J S Verma, and criticises his brethren for ignoring the principle of collectivity in decision-making. According to Justice M M Punchi, who himself became the Chief Justice later, the majority judgment was a bunch of individual opinions drafted by the majority over the summer vacation without prior consultation among judges. Narrating the events, he wrote that he was overtaken when a draft opinion was thrust on him, dashing all hopes for a “free and frank discussion.”
The 10 questions now before the court are substantial. Some of them are: whether its earlier judgments amounted to amending the Constitution, from where does the idea of collegiums arise, whether words in the statute can be made redundant by judicial interpretation, whether the judiciary alone can appoint judges keeping out the executive and whether the language of Article 124 (2) can be altered by court’s pronouncements. The court should answer these “expeditiously” (its favourite word) and not wait for another mortification like the ongoing impeachment proceedings.