The Supreme Court's supremacy

It should not be challenged, yet judges should not select judges

In recent weeks, media reports have carried statements made by the vice-president and the law minister that the selection procedure for Supreme Court judges needs to be reviewed. In 2014, the National Judicial Appointments Commission (NJAC) Act was approved overwhelmingly by Parliament, under which the Chief Justice of India (CJI), the next two senior judges of the Supreme Court, the Union law minister and two other eminent persons would be members of the NJAC. In 2015, the Supreme Court struck down the NJAC Act as it was deemed to have violated the basic structure of the Constitution. Consequently, a collegium, which consists of the Supreme Court and the four senior-most judges, has continued to select judges for the Supreme Court and high courts.

About half a century ago, in April 1976, Supreme Court judges subordinated their sense of justice to favour the central government in the infamous habeas corpus case. The details are at, https://main.sci.gov.in /jonew/judis. And, during 1975-77, the CJI transferred inconvenient high court judges at the government’s bidding. Since the mid-1970s, Indian governments have often pushed for the selection of favoured judges to high courts or Supreme Court positions. On a related note, in 2002 the Justice M N Venkatachaliah Commission recommended that a National Judicial Commission (NJC) should be set up, which would include the CJI, two senior-most Supreme Court judges, the Union law minister and one eminent person suggested by the CJI. This Commission recommended that the proposed NJC would select Supreme Court judges.

The Supreme Court does not require that its judges declare their assets, even though government officials and those who contest elections are required to do so. Judges have too often accepted positions immediately after retirement as members of tribunals, the Rajya Sabha and even as governors. In some instances, serving judges have declared their loyalties to the ruling dispensation in public, and were rewarded with government determined appointments shortly after retirement. Yet, Indians hope that despite the flaws of some judges, as an institution, the Supreme Court would stand firm against the excesses of Indian governments.

Illustration: Binay Sinha

Article 348(1) of the Constitution stipulates that high court and Supreme Court proceedings are to be conducted in English. Unfortunately, the Supreme Court has often appointed judges whose knowledge of English is minimal. The following quote is from a Supreme Court order passed by Justice D Y Chandrachud and Justice Sudhanshu Dhulia on August 1, 2022: “The judgement of the (Himachal) High Court is utterly incomprehensible”. The unintelligible gobbledygook quoted below is from the State of Himachal Pradesh versus Himachal Aluminium & Conductors case and is illustrative of innumerable high court judgements: “However, the afore bar or embargo, against the institution, of the extant writ petition before this Court, where through, annulment(s) of the impugned Annexures, is tried for.”

To guard against a lack of basic writing skills and overall education it is necessary to institute a competitive examination administered by a body nominated by the Supreme Court. This should be a separate, tailor-made examination for entry to a Judicial Service from which all judges could be selected. As it happens, some months back, I asked a highly regarded retired Supreme Court judge whether such a written examination plus interview would be practical and desirable. Without any hesitation this judge responded that such an examination-based entry to judicial service is necessary.

Presently, there are about 40 million cases pending in India’s lower courts, another 5.6 million in high courts, and 70,000 in the Supreme Court. Judges are often responsible for the multiple adjournments and appeals that they allow stretching over decades. The central and state governments too should be held accountable since they are litigants in far too many cases. Given this huge pendency of cases, should the Supreme Court involve itself with cases related to the Board of Control for Cricket in India, places of religious worship or demonetisation? Lower courts could dispose of such disputes unless systemic implications are involved. Incidentally, the Supreme Court is yet to dispose of petitions against anonymous donations to political parties via electoral bonds, which was introduced in January 2018.

The checks and balances against government favouritism have not worked for several other categories of significant appointments. For example, governors of states, election & police commissioners, the comptroller & auditor general, and director of the Central Bureau of Investigation have been often appointed for their fawning support of those in power. It is a sad reflection of India’s election processes and our electorate that we get governments whom we cannot trust to select impartial and competent individuals for crucial positions. Any proposal to insert government nominees into the process of selecting judges would make India go from the frying pan to the fire in terms of judicial impartiality and probity.

Obviously, India needs incorruptible judges. Going forward, all judges should be required to declare their assets while in service and on an annual basis for another 10 years after retiring. As for selection of competent judges, the Supreme Court could set up a committee with seven members, which would include the Chief Justice, four senior-most judges of the Supreme Court plus two non-government eminent persons. The specific criteria for selection to high courts and the Supreme Court should be spelt out in bullet point format, and this information should be readily accessible on the Supreme Court’s website. Such a committee should not have any government nominees or inputs. With a view to promoting consensus-based appointments, any two persons on this selection committee should have a veto and be able to block the nomination of potential judges. At the same time, the government should have the right to reject nominees of the selection committee. However, this right of the government should come with the caveat that the government’s detailed reasoning for rejecting any name must be tabled on the floor of both Houses of Parliament.

j.bhagwati@gmail.com. The writer is a distinguished fellow at the Centre for Social and Economic Progress, former Indian ambassador and World Bank treasury professional