Judicial appointments: Judiciary's independence is paramount but need to check ‘imperium in imperio’

In August 2009, the Supreme Court collegium recommended the elevation of Justice P D Dinakaran, who was serving as the Chief Justice of the Karnataka High Court. As reported by The Hindu, soon after the news of his proposed elevation was leaked, Chennai-based Forum for Judicial Accountability sent representations to the former Chief Justice of India, KG Balakrishnan, and other judges of the collegium that Justice Dinakaran had allegedly indulged in land grabbing in Tamil Nadu’s Tiruvallur district.

There were serious charges against him related to disproportionate assets, passing questionable judicial orders, and various other corruption allegations.

An impeachment proceeding was initiated against Justice Dinakaran but he resigned before it could lead to his removal. However, the statutory committee that probed the charges levelled against him found as many as 12 charges of corruption to be prima facie tenable.

In a highly implausible scenario stories of his misconduct and misdemeanours would not have reached the corridors of the Supreme Court. But if it did, his proposed elevation raised serious questions on the process of appointing judges to the higher judiciary. This was one of the cases that came to light, there are many that are brushed under the carpet. The collegium system had shown many such cracks over the years.

Concerns on functioning of collegium system

Recently while speaking at the National Cultural Diversity Summit of Asian Australian Lawyers’ Association Inc, former Chief Justice of India (CJI) NV Ramana made certain observations regarding the collegium system which once again brought the much-debated issue of the process of judicial appointments to the fore.

Justice Ramana said that concerns raised in different quarters, including by the government, lawyers’ groups, and civil society, relating to the functioning of the Supreme Court collegium system “cannot be ignored or brushed aside and definitely merit consideration”.

Before Justice Ramana’s comment, on 17 September, Union Minister of Law and Justice Kiren Rijiju called for rethinking the collegium system, pointing out that there are some valid concerns about the existing process.

Process of appointment of judges and allied concerns

The appointment of judges to the High Courts and the Supreme Court in India is made through a collegium that consists of the Chief Justice and four other senior-most judges. The names approved by the collegium are sent to the government which had a minimum role of providing intelligence inputs on the candidates and at most can seek reconsideration of a candidature by the collegium for once.

The collegium system has been criticised on the ground of being totally opaque in its functioning, for the fact that it is a complete closed-door affair; with no established selection procedure or qualification requirements being in place. Collegium has complete autonomy to decide upon the names to be appointed as judges.

In 2011 former Supreme Court judge Ruma Pal, while speaking at the 5th VM Tarkunde Memorial Lecture organised by Tarkunde Memorial Foundation and the People’s Union for Civil Liberties, made a very pertinent point when she said: “Judicial independence cannot exist without accountability. There is a need for an effective mechanism for enforcing judicial accountability.”

She added, “The mystique of this process (of appointments) is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot, therefore, be ruled out that howsoever highly placed maybe these individuals, the process may on occasions(sic) result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off.”

Factors behind criticism of judicial appointment process 

The process of judicial appointments in India has been criticised for promoting nepotism and lack of transparency. In an interview with the author in 2018, noted lawyer and jurist Rajeev Dhavan said, “There is nepotism in judicial appointments. Many worthless people have entered high courts and the Supreme Court. The only answer to such nepotism is a rigorous process at both collegiums (High Courts and Supreme Court)”.

NJAC Act

To address concerns raised regarding the functioning of the collegium the incumbent government in 2014 passed the ninety-ninth constitution amendment with the purpose of establishing a National Judicial Appointments Commission (NJAC) (which was to have a representation outside judiciary) for the appointment of Supreme Court and High Court judges.

However, the constitutional validity of the act was challenged in the Supreme Court and the Supreme Court in October 2015 struck down the NJAC Act.

Justice Jasti Chelameswar, who was the sole dissenting judge in the NJAC case, raised serious questions over the working of the collegium. In his dissenting note, he wrote: “Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to the public and history, barring occasional leaks.”

“To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said, adding that Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances — a fundamental principle in Constitutional theory.

Rohatgi in an article published in a book — Appointment of Judges to the Supreme Court of India: Transparency, Accountability, and Independence — edited by Arghya Sengupta and Ritwika Sharma, makes some important observations regarding collegium.

While explaining the evolution of the collegium system he writes, “The operation of the collegium system in the last two decades has created much dissatisfaction. One of the major concerns is that the reasons for substantive appointments and non-appointments made by the collegium were not known because of the completely opaque nature of the process. Also, certain egregious appointments raised serious apprehensions about its suitability.”

“The collegium was founded in an invalid interpretation of the Constitution, since the institution of the collegium has no constitutional warrant and was the creation of the Court pursuant to the Second Judges case. These principled and practical deficiencies in the operation of the collegium led to several reform proposals across the years which materialised in the form of the 99th Amendment Act and the NJAC Act,” writes Rohatgi.

Rohatgi in his article also put forward another important argument to counter the view that the presence of the Law Minister as one of the six members in the proposed NJAC would have amounted to ‘vitiating’ the selection body and would have affected the independence of the judiciary.

He writes, “From 1950 to 1993, judges were appointed by the executive in consultation with the Chief Justice of India. The era produced some of the finest judges in the history of independent India. Further, no other comparable system in the world provides for judges appointing judges.”

Independence of judiciary: Primary issue for makers of Indian Constitution

Ensuring and safeguarding the independence of the judiciary was of paramount concern for the framers of the Indian Constitution. Constituent assembly debates provide ample testimony to the fact that those tasked with the making of the Constitution were of the firm view that an independent judiciary was the most essential prerequisite for the democratic functioning of the state.

Every shred of executive upper hand in the appointment of the judges of the Supreme Court and High Courts was carefully pruned out to ensure the independence of the judiciary.

The members went to the extent of recommending an appointment of judges for life so that there is no temptation before any Supreme Court judge of the possibility of his being offered any office of profit after retirement.

It was also argued that to maintain the independence of the judiciary it needs to have sufficient control over its own establishment because if the establishment looks for preferment or for promotion to other quarters, it is likely to sap the independence of the judiciary.

The method of appointment of judges was debated in great detail. In fact, the maximum number of amendments proposed in the constituent assembly was related to the article dealing with the appointment of judges. Article 103 of the draft Constitution stated that judges of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose. The requirement of ‘consultation’ also became a matter of intense debate as the majority of members wanted the consultation to be binding and wanted the consultation to mean concurrence.

However, the Constituent Assembly also took into consideration the fact that it does not want to create what one of its members TT Krishnamachari called an imperium in imperio, i.e. completely independent of the executive and the legislature and operating as a sort of superior body to the general body politic.

Ambedkar’s view

Dr BR Ambedkar also made it clear that granting unfettered supremacy to the judiciary in its functioning is not desirable.

He said, “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that that is also a dangerous proposition.”

The ‘Second Judges’ case and institutionalisation of collegium

The Constituent Assembly gave primacy to the executive as the consultation with Chief Justice was not to be treated as concurrence. However, it was the ‘Second Judges’ case, that institutionalised the collegium system and established the primacy of the judiciary in judicial appointments.

Arun Jaitley, the former Union Minister of Law and Justice, in the above-mentioned book discusses in great detail the problems with the collegium system and also makes a vital point that “for the process of judicial appointments to be more systematic and efficient, it is imperative that certain process-related details are clearly outlined”.

He writes, “The discussion on reforming the appointments process should not only concentrate on who appoints while overlooking the need to address how appointments are made. Merely changing the authority which appoints judges without specifying certain process-related details would not address issues relating to the quality and competence of judges appointed. Such a constricted outlook towards the appointments process would possibly lead to throwback to the genesis of the collegium.”

He further added, “To this end, the most imminent process-related details that must be etched out are, first, streamlining the process of shortlisting candidates, and second, laying down certain objective criteria for selection of candidates. To begin with, the process for shortlisting/nomination of potential appointees should be appropriately specified so as to give clarity on the number of people who have been considered by the collegium. Names cannot simply be picked out of a hat, as is often the impression that is rightly or wrongly held regarding the functioning of the collegium.”

“Sunlight is the best disinfectant”

Judicial ‘primacy’ in the appointment of judges ensures the independence of the judiciary. However, the collegium system instead establishes judicial ‘supremacy’ devoid of any accountability making it an imperium in imperio.

Any criticism of the collegium is not meant to undermine the independence of the judiciary. It is not meant to favour a system that in any manner takes away the autonomy of the judiciary. It is only meant to highlight the pitfalls of the collegium system and call for putting in place a system that is more transparent, with wider representation that would enhance its credibility and people’s faith in the judiciary.

After all, the apex court itself accepted that “sunlight is the best disinfectant”.

Any criticism of the collegium is not meant to undermine the independence of the judiciary. It is only meant to highlight the pitfalls of the collegium system.

The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.

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