At the nub of the appointment issue is a five-decade-old tussle for power between the state and the Union executives and the determined attempts of the judiciary to free itself of Constitutional checks and balances.
We have followed an asymmetric system since 1993. Appointments to the SC are made by the President on the basis of recommendations of a "collegium" of the Chief Justice of India (CJI) and two senior SC justices, courtesy a SC judgment which interpreted the term "consultation" by the President of India, as used in the Constitution, to mean "concurrence" of the CJI. This simple device substituted government control with control of the "collegium" of judges who operate like a self-regulating "guild".
More From This Section
For appointments to a high court we continue to follow the Constitution's provisions. The President appoints judges after consultation with the governor, who in turn acts on the advice of the state government; the chief justice of the high court and the CJI. In practice, the Law Commission notes, politics intervenes frequently and the government's opinion is given primacy.
Neither system works well. The collegium system depends heavily on the incentives of the "judicial guild" to retain its credibility. This is suspect. CJIs have very short tenures, often even less than a year, and hence little motivation to ruffle political or even "guild" feathers. Most of the senior justices in the collegium have navigated the hazards of getting appointed earlier as high court judges and are well adjusted to the status quo in which keeping your desk clean, remaining below the radar and shunning disruptive innovation is a winning strategy.
Conversely, a government-controlled system of appointments is as non-transparent, as ineffective in promoting merit, and as compromised. Going back to the future is clearly not an option.
What then of the Judicial Commission system, first proposed by the Law Commission in July 1987 and subsequently converted into a Bill in 2013, as one of the last, legislative gasps of the UPA-II government?
The idea of broad-basing the selection process in an empowered, multi-stakeholder Commission is attractive. But we need to get some things right.
First, be specific. The settled good practice is to define the criteria for selection very specifically to limit discretion. The Constitutional provisions specifying eligibility do not measure up.
A retirement age (65 years) is specified but not a minimum tenure - nor a maximum age at the time of appointment. Hence the malaise of short tenures due to "mercy promotions" of retiring judges will continue.
A position-based eligibility of having been a judge of a high court for five years or an advocate of a high court for ten years or being an "eminent jurist" is specified - but is too generic to establish relevant expertise.
Unfortunately on the issue of selection criteria, the Bill only states that persons of "ability, integrity and standing in the legal profession" would be recommended.
Second, how can promotions be based on merit, rather than seniority? Clearly, time spent in a position is not a good determinant of capacity to excel at a future job, as the Peter Principle famously outlined. The real problem has been to find a suitable substitute for the blunt, but easily measured, metric of seniority. The fear of inequity, if criteria other than seniority are used, is mostly due to the discretionary application of the generic selection criteria and the manner in which seniority, as a selection metric, was abandoned.
The practice of passing over judges was initiated in 1973 when the government started a new practice of selecting a CJI "committed" to social change rather than to the status-quoist ideology of protection of fundamental rights of citizens. It was reiterated in 1977 for appointment of the CJI and for elevation of two judges from the high courts to the Supreme Court.
The involuntary transfer out of their states of 16 high court judges in 1976 for the first time was viewed as yet another assault by the executive on the independence of the judiciary. The fact that these events are closely linked to the proclamation of the Emergency in 1975 and the systematic erosion of citizen rights which accompanied it just served to garnish the public perception of subversive executive intentions.
The Judicial Commission Bill does partially address the need to dilute the lingering bad faith and tug-of-war between the government and the judiciary.
It proposes a statutory commission consisting of the CJI; the two most senior judges of the Supreme Court; the Union law minister; and two "eminent" persons who would be selected for a non-renewable tenure of three years by a collegium consisting of the PM, the CJI and the Leader of the Opposition in the Lok Sabha. It also takes away the power to transfer judges of the high court from the state government and vests it with the Commission.
How serious are its shortcomings?
If it is not the government's intention to tilt the balance further towards centralisation, the erosion of state government powers can easily be addressed by special provisions for (1) associating the chief justice and the law minister of the relevant state with the Commission and by (2) associating the CM, chief justice and leader of the opposition with the collegium for selecting a state-specific panel of two "eminent" persons.
The more serious shortcomings are with respect to the absence of smart selection criteria even though options exist. Why not specify a minimum number and types of cases adjudicated or represented (for advocates), and specify the minimum proportion which should have remained uncontroverted in appeal, as an indicator of legal "ability"?
Why cannot the complete absence of a past or existing criminal record (a charge-sheet being issued being the Lakshman rekha or red line) be clearly stated as an indicator of "integrity"?
Why cannot the term "standing" in the legal profession, not be specified in a more granular manner?
An autonomous Commission can effectively nudge the judicial system towards its intended Constitutional mandate; apolitical, enlightened and efficient application of the rule of law and protection of the fundamental rights of private entities, against encroachment by the executive or the legislature. But the real questions are: (1) is there a common intention to fix the problem and (2) are we using the proposed Commission as a Trojan horse to centralise control over the judiciary?
The writer, a retired IAS officer, is advisor to the Observer Research Foundation