CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

Gender


JUDICIAL APPOINTMENTS: RETROSPECT AND PROSPECT


Our Constitution has taken up the charge of transforming a hierarchical society into a modern equalitarian democracy. In a Parliamentary democracy based on a written Constitution, it is the role of the Judiciary (predominantly the Supreme Court) to interpret it. The court itself has supposed the role of the guardian and interpreter of the Constitution of India. For the purpose of interpretation, the independence of the Judiciary from any external source, including the political executive needs to be ensured. To that end, the Constituent Assembly introduced a number of significant provisions.

For example, salaries and allowances of the judges are charged from the Consolidated Fund of the State; removal of the judges of the Supreme Court can take place only through impeachment by Parliament. On the contrary, the Constituent Assembly did not see the vesting of the ultimate power of appointing judges on the executive as an infraction of the principle of judicial independence. It viewed such power as a vital component for the checks and balances required to ensure that no organ of the government turns tyrannical. A broad process of consultation was mandated to validate the system for the appointment of judges with the ultimate authority resting with the President of India. The confusion lay in the role that the Chief Justice was meant to play in making appointments. Should the final say lie with the Judiciary (the CJI) or the executive (the President)? The essay will elaborate on the manner of judicial appointments, in retrospect and its prospects.

ARTICLE 124 (2) and ARTICLE 217 (1)

"every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted." (Art 124 [2])

"every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court,.."(Art 217 [1])

None of the Constitutions of the Commonwealth countries, or the Constitution of U.S.A., provides for "consultation" with the head of the judiciary or any other member of the judiciary in the matter of appointment of Judges. Only our Constitution does and it could not have been lacking a raison d'etre. This provision is attributable to the belief that at our stage of development and having regard to the propensity of the Executive (to control every organ of State and every institution of governance), they cannot be vested with the sole power of making appointments to judiciary, an equivalent wing of government. The requirement of consultation with not only the Chief Justice of India but with certain other Judges at the Supreme Court and High Court level in Article 124 and Article 217 is an indication of the concern the founding fathers had with ensuring a system of checks and balances between the organs of the government.

CASES RELATED TO JUDICIAL APPOINTMENTS

In Union of India v. Sankal Chand Himatlal Sheth, 1977, the Supreme Court declared that the word "consultation" did not mean "concurrence". The Court held that the opinion of the Chief Justice in making transfers was not binding on the executive and a departure from the CJI's recommendation to the President can be refused for "cogent reasons". In the 1980s, the executive used this decision of the Supreme Court to override recommendations of the CJI in both making transfers and in the appointment of judges to the higher judiciary.

While this decision was partially affirmed by a majority of seven judges in the First Judges Case, the Union of India v. S.P. Gupta in 1981, the Supreme Court dramatically altered its position in the Second Judges Case. A backlash to the arbitrary nature of making appointments by the executive was natural and was followed by the 67th Constitutional Amendment Bill, 1990, which proposed the creation of a National Judicial Commission composed of serving judges headed by the CJI.

In the case, 1993, the Supreme Court ruled that the word "consultation" in Articles 124 and Article 217 denoted "concurrence," and that primacy in making judicial appointments should be accorded to the CJI. He/she would refer to the two senior most judges of the Supreme Court and send his/her recommendation to the executive who will be bound to follow the same.

This decision was later affirmed with certain modifications in the Third Judges Case in 1998. In the Presidential Reference by K.R. Narayanan to the Supreme Court to clear out what the word "consultation" meant further evolved the doctrine and created a system wherein judges would be appointed by a "collegiums" consisting of the CJI and four senior-most judges of the Supreme Court. Though the Executive would make the actual appointment, it would have no other role in the appointment of judges to the High Court or Supreme Court.

Through the Second and Third Judges cases, the Supreme Court practically appropriated upon itself the command to appoint judges. By actualising all the powers, a concern expressed by James Madison, father of the American Constitution came to the fore: "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective," he said, "may justly be pronounced the very definition of tyranny."

SYSTEMIC ERRORS OF THE "COLLEGIUM" SYSTEM

1. The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees; 2. A closed-door affair without a formal and transparent system with all power wresting with the

collegium which is not accountable to anyone for the appointments it makes. 3. The limitation of the collegium's field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates and appointments largely based on favouritism and biasness. 4. Personal animosity has resulted in the delay or denial of appointments to the Supreme Court. 5. Moreover, the system is not in the scheme of the Constitution. It evolved by virtue of judicialinterpretation and through it the judiciary has appropriated all the powers upon itself.

Several moves have been made to undo the flaws of the "collegium" system, the recent one being the introduction of the National Judicial Appointments Committee Bill, 2014 in the Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad in August. This Bill was passed in conjunction with the 99th Constitutional Amendment Bill. These two bills have sought to reinstate both the position of the executive and the primacy of the CJI in making transfers and appointments of judges. The NJAC bill seeks to establish a Commission that would have power to make appointments and transfers. It will be a body whose constitutionality will be established by the 99th Constitutional Amendment. According to the NJAC bill the Commission established would comprise six members. The CJI would be its ex-officio chairman, two senior Supreme Court judges, the Union Law Minister and two "eminent" persons. The Bill does not mention the qualifications of the eminent persons. They will be chosen by a Selection Committee comprising of the CJI and two persons belonging to the political executive - the Prime Minister and the Leader of Opposition.

FEATURES OF THE NJAC BILL

1. Reference to Commission for filling up of vacancies

The Central Government will make a reference to the NJAC about vacancies in SC and HCs.

Existing vacancies will be notified within 30 days of the Act entering into force.

Reference will be made six months in advance of vacancies arising from expiration of term.

Reference will within 30 days of occurrence of vacancies due to death or resignation.

2. Procedure for Selection of Supreme Court judges

Chief Justice: The NJAC shall suggest the name of the senior-most judge of the Supreme Court for appointment as the CJI provided she/he is considered fit to hold the office.

SC judges: The NJAC shall propose names of persons on the basis of their ability, merit and other criteria specified in the regulations.

Veto power of members: The NJAC cannot put forth person's name for appointment if any two of its members do not agree to the proposal.

3. Procedure for Selection of High Courts judges

Chief Justices of High Courts: The NJAC is to recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across all High Court judges in India. The ability and merit have to be considered.

Appointment of other High Court Judges: 

Nominations: Nominations shall be sought from Chief Justice of the concerned High Court. 

Eliciting views: The NJAC shall nominate names for appointment of High Court judges andforward them to the Chief Justice of the concerned High Court for his views. 

In both cases, the Chief Justice of the High Court shall consult the two senior-most judges ofthat High Court and any other judges and advocates as specified in the regulations.

Views of the Governor and Chief Minister: The NJAC shall obtain the views of the Governor and Chief Minister of the state before making recommendations.

4. Transfer of chief justices and High Court judges:

The NJAC is to make recommendations for transfer of Chief Justices and other judges of the High Courts.

5. Power of the President to require reconsideration

The President may require the NJAC to re-examine the recommendations made by it.

If the NJAC makes an undisputed proposal after such rectification, the President shall make the appointment consequently.

Critics of the NJAC Bill accuse it of curbing the independence of the judiciary. The proponents argue that involving the political executive would ensure that checks and balances are maintained between organs of the government which had been lost since the 'collegium' system came in place. The veto clause has also come under criticism - any two members of the Commission can disagree to support any recommendation which even means overriding the Chief Justice's opinion. The bill seeks to balance the role of the executive and judiciary in making appointments and transfers of the judges of the higher judiciary. Moreover, the proponents establish their point by further arguing that the bill is not altering the basic structure of the Constitution. In fact it is amending the unconstitutional path that the collegium system had taken of appropriating all appointment making powers unto itself. The Constitution clearly mentions that the appointments are to be made by the President who is the executive head and the CJI and senior judges have an advisory role only.

The proposed system accords the judiciary not merely a consultative but also a determinative role. The pre-existing provisions, which the drafters of India's Constitution inserted to ensure judicial autonomy, continue to remain in force. It is only the process of appointments, which was arrogated by the judiciary unto itself, which has been calibrated by the proposed Constitution Amendment. Proponents argue that this realignment is both in keeping with the original intent of the Constitution's framers and also with the larger principle of separation of powers.

(The views in this paper are of the writer Shruti Sharma and not necessarily of CPA)