After spending a few years in seclusion following the Watergate scandal, Richard Nixon granted British journalist David Frost a series of exclusive interviews in 1977. During their conversation, Frost asked Nixon if he believed the President could do something illegal if it was in the best interest of the nation. Nixon’s response, “Well, when the President does it, that means that it is not illegal,” has long been remembered as a controversial and problematic statement.
It is somewhat reminiscent of the argument in support of the collegium system of judicial appointments in India. By interpreting certain provisions, the judiciary has empowered itself to select its own successors, even if this power is not explicitly granted under the Constitution. This raises the question: whether the ends can justify the means?
Collegium system’s evolution
The process of appointing judges in India has been the subject of multiple judicial decisions, the first of which is S.P. Gupta’s case (1981). This case involved several petitions that raised important constitutional questions about the appointment and transfer of judges and the independence of the judiciary.
One issue that arose was the validity of the Central government’s order that declined to appoint two judges despite recommendations from the Chief Justice of India. A seven-judge bench of the Supreme Court ruled that the government was not bound by the views of the CJI in the appointment of judges. However, this precedent was later overturned in SCAORA v. Union of India (1993), in which a nine-judge bench held that the government was bound by the advice of the CJI in the appointment of judges, after consultation with the two senior-most judges of the Supreme Court. This decision paved the way for the current collegium system of appointment.
The debate over judicial appointments resurfaced in 1998, when the apex court issued an opinion in response to a question of law raised by President K.R. Narayanan regarding the collegium system. This opinion further solidified the system, expanding the collegium from three to five judges and supposedly clarifying many aspects of the appointment process. Despite subsequent challenges, the apex court has consistently upheld the system, reaffirming its status as the established method for appointing judges in India.
The evolution of the judicial appointment process raises questions about whether the Constitution intended for such a system in the first place. The fact that the issue has been revisited on three separate occasions suggests that there are problems with the current method of appointment. As we prioritise the integrity and independence of the judiciary, it is crucial to address the flaws in the appointment process and seek a solution that ensures fair and impartial judicial appointments.
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Appointments in other jurisdictions
The Indian Constitution is a masterful blend of borrowed ideas and originality. Among others, it takes inspiration from both the written constitution of the US and the unwritten constitutional traditions of the UK, incorporating key elements such as the independence of the judiciary, the process for removing judges, and the rule of law. Given the significant influence of these countries on the Indian legal system, it may be worthwhile to consider their approaches to appointing judges as a potential reference point.
The processes for appointing judges in the US and UK differ significantly. In America, the judges of the federal courts are appointed by the President with input from the Senate. This allows the President to shape the judiciary to align with their ideology and priorities. In contrast, the Judicial Appointments Commission of England and Wales, an independent body, is responsible for appointing judges in courts and tribunals in the UK. The Commission comprises 15 members, with three representatives from the judiciary and the remainder selected through open competition. This system allows for a more diverse and representative selection of judges, rather than being influenced by the political leanings of the executive or judicial patronage. Perhaps a systemised blend of both these models is suitable for Indian conditions.
The purpose is not to diminish India’s sovereignty or blindly adopt the approaches of other countries. Rather, it is to consider the potential value of learning from the experiences of others and evaluating how they may be applied within India’s constitutional framework. Moreover, mere involvement of the executive in judicial appointments does not automatically undermine judicial independence. The specific details of the appointment process, including its structure, are important factors to consider rather than making assumptions based on broad and general perceptions.
Also read: Not just collegium, govt also to blame for lack of diversity among judges
Flaws in our system
A system that makes a grand claim has the onus to fulfil that claim in order to be deemed effective and trustworthy. Despite its claims of independence and impartiality, the collegium system is plagued by serious weaknesses and flaws that have had a detrimental impact on the functioning of the judiciary.
An example of a flawed appointment under the collegium system is that of Justice Soumitra Sen to the Calcutta High Court in 2006. Justice Sen’s appointment was made despite allegations of misappropriating funds while serving as a court-appointed advocate in a dispute between two public sector undertakings. The collegium not only cleared his appointment but withheld information about the person they were elevating as a judge, demonstrating a lack of transparency and accountability in the process.
What ensued during his judgeship, and his subsequent resignation, is well documented in history, and serves as a cautionary tale about the collegium system.
A more recent instance of the collegium’s failure is the case of Justice Akil Kureshi, who was passed over for promotion as the Chief Justice of the Gujarat High Court despite being the senior-most judge in the state. This decision was seen as being based on discrimination and favouritism rather than merit, raising concerns about the fairness and transparency of the system.
These instances demonstrate the need for reform in the collegium system in order to ensure a more transparent, accountable, and fair process for selection.
Also read: Ambedkar rejected collegium system, said CJI supremacy on judges’ appointment is dangerous
Rejection of NJAC Act
The SC judgment striking down the National Judicial Appointments Commission Act, 2014, is rightly criticised for its potential to become a roadblock to any meaningful reform of the appointment process for judges in India. While the NJAC Act, as enacted, had several contradictions and purportedly diminished the role of state governments in high court appointments, it is debatable whether the Act should have been altogether trashed.
Quite apparently, the Act did include some checks and balances that could have contributed to a more transparent and accountable appointment process. A key aspect of the Act was the composition of the Commission, which was to consist of the CJI, the two senior-most judges of the SC, the Union Minister of Law and Justice, and two “eminent persons” who would have been appointed by a committee consisting of the CJI, the Prime Minister, and the Leader of Opposition in the Lok Sabha. This diverse composition could have ensured a balanced yet representative selection process.
Furthermore, the NJAC was required to invite applications, hold interviews for judicial appointments, and make the proceedings of the interviews and the reasons for selection public. This transparency would allow the executive to participate in the selection process but ensure that appointments were made on merit and not lopsidedly to favour the ruling dispensation.
Also read: ‘Lack of understanding’, say ex-chief election commissioners after SC flags their short tenures
Reforming the system
The most politically correct “punching bag” ever conceived of in a democracy is the political executive. As such, people feel comfortable “landing punches” and not holding back when it comes to critiquing the government, and perhaps rightly so.
The impetuous attacks on the collegium of late by Vice President Jagdeep Dhankhar and the Union Law Minister Kiren Rijiju are indeed problematic and have renewed tension between the executive and the judiciary. However, this should not distract from the fact that the collegium system has its own flaws and challenges that need to be addressed. Surely, it cannot be that this organ is so “perfect” that there is no scope for improvement.
The Constitution mandates that the decisions of the Supreme Court are final. While it is important to respect the authority of the apex court, this does not mean that the law, as posited by it, is immune from critique or reproach. It is within the bounds of legality and judicial propriety to engage in discussions about the law and decisions of the Court, including the collegium system, in order to consider ways in which they may be improved.
It is important to approach these discussions from a legal and objective perspective rather than letting political or ideological biases cloud the discourse.
Long-term solution
It would be effective for both the executive and the judiciary to appreciate their respective boundaries and the delicate balance that must be maintained between them. While it is inevitable that there will be tension between these two branches in a healthy democracy, it is important to handle this tension in a mature and responsible manner. The well-being of the judiciary is at stake, and conflicts within the system can have both internal and external impacts, including on media perception and foreign investments in the country. A long-term solution would perhaps be to enact a well-drafted NJAC and the Judicial Standards and Accountability Bill, 2010.
The government has been criticised for selectively appointing some of the judges recommended by the collegium while delaying or ignoring the appointments of others, thereby altering the seniority of the judges. This has led to a situation where many high courts and the Supreme Court are operating with fewer judges than their sanctioned strength. It is instructive for the government to promptly address this issue and make timely appointments. Should it have reservations about a recommendation from the collegium, it must express them clearly rather than simply delaying a decision. It should not adopt the approach of “not taking any decision is itself a decision,” as famously stated by P.V. Narasimha Rao.
Debarshi Chakraborty is a practising advocate in Delhi. Views are personal.
(Edited by Tarannum Khan)