Proposed judicial appointments commission is not the whole answer.
On February 14, the Supreme Court’s collegium withdrew from the law ministry the names of 12 persons recommended by the collegium for elevation as judges of the Madras High Court. The panel may have brought to a halt the controversy over the merits of the proposed nominees. But it has done little to address the problems of opacity and inconsistency in the present procedure for appointing judges.
In January, a senior advocate, R. Gandhi, had filed a PIL in the Madras High Court, questioning the list of persons nominated for elevation by the court’s collegium, which was also apparently vetted by the Supreme Court’s panel. It argued that the list — and the process of appointing judges — suffered from a lack of transparency. But the real issue at stake was casteism in the selection process.
After the Madras HC granted an interim order of “status quo,” effectively forbidding the ministry from processing the list of nominees, the registrar general of the court moved the Supreme Court. The Supreme Court transferred the matter to itself and vacated the high court’s interim order. This, on paper, enabled the government to proceed with appointing the persons nominated by the collegium. But now, the Supreme Court’s collegium has retracted the list altogether, adding another layer of opacity to an already secretive process. The retraction would seem to be an admission of the failings of its own selection procedure.
Consider what the Constitution tells us, in broad terms: judges to a high court are to be appointed by the president in consultation with the chief justice of India (CJI), the governor of the concerned state and the chief justice of the concerned high court. Read simply, the prerogative lies with the executive, that is, the president, who ought to act according to the advice of the council of ministers, which is based, no doubt, on consultations with other such persons as mandated. In the initial years after the Constitution came into force, the executive, as a matter of convention, made appointments only with the concurrence of the CJI. But the government slowly began to tweak this tradition: while the CJI was consulted, his concurrence wasn’t always sought.
In 1981, a bench of seven judges of the Supreme Court sanctioned this trend in S.P. Gupta vs President of India and Others, holding that the opinion of the CJI was not binding on the government. The executive, according to the court, held the trumps. The decision may have upheld the basic text of the Constitution, but it also proved calamitous. In the aftermath of the decision in S.P. Gupta, appointments were routinely made with blatant disregard for the CJI’s opinion. To correct this anomaly, the Supreme Court, in 1993, reconsidered its decision. But in doing so, the court virtually rewrote the provisions of the Constitution, fashioning its own system of appointments, which has proved extraordinarily obfuscatory.
In Supreme Court Advocates-on-Record Association vs Union of India, the court assumed the power to appoint judges to the higher judiciary. The authority was vested with the CJI, who, it held, would have primacy on all matters of appointment and would be assisted by two judges of the Supreme Court. The decision was reaffirmed in 1998, in the presidential reference case, albeit with minor modifications. The primacy now shifted from the CJI to a collegium of judges, comprising the CJI and his or her four most senior colleagues. A similar collegium was also established for high courts, where the chief justice of the concerned high court would nominate prospective appointees, together with his or her two most senior colleagues.
As is apparent, the system maintains no fidelity to the text of the Constitution. But what is most disappointing is the Supreme Court’s failure to structure a system that would lend credibility to appointments: a transparent, institutionalised set-up, where merit (which, no doubt, will have to be carefully defined) will be the sole criterion. What we have today is a system, which, on top of being extra-constitutional, is also deeply flawed.
The proposed judicial appointments commission, which will replace the collegium system, if passed by the Lok Sabha, is also not the answer to our problems. We need a system closer to the British model, where a commission independent of both the executive and the judiciary selects candidates based solely on merit. We should be striving towards a system of judicial appointments that keeps faith with both the independence of the judiciary and the principle of separation of powers, on which our Constitution rests.
The writer is an advocate in the Madras High Court