Opinion Indira Jaising writes | Law Minister Kiren Rijiju’s letter to CJI DY Chandrachud: Fox in the henhouse

Is there a need for a search-cum-evaluation committee? If the answer is in the affirmative, then what should be the composition of such a committee? More importantly, what should be the criteria for such appointments?

Convention has it that the senior-most judge of the high court is appointed as chief justice of the high court, though not in his or her parent high court. Convention also has it that ordinarily it is only chief justices of high courts who are appointed to the Supreme Court, regard being had to geographical representation of states in the Supreme Court. Hence, the criteria for appointment of chief justices of the high court and judges to the Supreme Court are already clear. Thus, it would seem that there is no need for a search-cum-evaluation committee. What we need, instead, is the criteria for such appointments when the rule of seniority is being departed from.

The zone of consideration is already limited as mentioned above, hence a search-cum-evaluation committee can add nothing to this convention. Evaluation of judicial performance is again the function of the judges of the Supreme Court who are best placed to evaluate the judgments of the judges proposed to be appointed to the Supreme Court. That apart, judicial decisions are very often subject to rigorous academic critique in reputed legal journals — a known method of evaluation of judgments. In these circumstances, the suggestion by the Law Minister that the search committee should include representatives of the government is outrageous.

It is a cleverly disguised proposal intended to be the first step by the government to enter the Collegium, which comprises of judges exclusively.

The proposal will be destructive of the principle of separation of powers on which the Constitution is premised and which forms part of the basic features of the Constitution. It is the judiciary, of all institutions, which is supposed to provide counter-majoritarian checks and balance to the functioning of the government. To suggest that the very same government should be on a committee charged with a duty of appointing judges who perform the function of checks and balance, would be to destroy the very function of the court to keep a check on other branches of government. This would be akin to inviting the “fox to the henhouse”.

In the NJAC case, the Supreme Court held that representation by the government on the selection committee would destroy the independence of the judiciary. This suggestion is an attempt to bypass that judgment.

There are only two known ways of altering the law declared by the Supreme Court. First is to alter the basis on which judgment is rendered by the court, by appropriate legislation which will again stand the scrutiny of the court. And another is by way of seeking the overruling of the judgment by a larger bench. The government of the day has done neither. Instead, high constitutional functionaries including the Vice President and the Law Minister have been making statements, which go contrary to the judgments of the Court, in an attempt to marshal public opinion against the judiciary and attempt delegitimising of the institution as a whole.

If the government is indeed serious about changing the manner and method of appointment of judges, nothing prevented it from enacting a statute after the striking down of the NJAC Act. This route has consciously not been adopted. In hindsight, it seems clear that it was not considered necessary to enact such a law since in any event appointments have been made in consultation with the government and the government has been comfortable with all the judges that have been appointed since then.

There is no known case of the Collegium having recommended a name for the chief justice or to the Supreme Court who has not been appointed by the presidential warrant.

It is more likely than not that any suggestion by the Collegium that is deemed uncomfortable and is opposed by the government has been dropped by the judiciary. It is worth recalling that Justice NV Ramana was the last CJI who was initially appointed during the UPA government. All other CJIs since then have been appointed under the NDA government.

This is not to suggest that there is nothing wrong with the selection criteria of appointments to the high courts.

The search has to begin there. Significantly, the Law Minister’s letter does not spell out the criteria to be followed for appointments to the high courts. It is here that I believe the problem lies. At the stage of appointment of judges, a search and evaluation will be very much in order but by a committee consisting of judges. Appointment must be made on criteria laid down and published in advance.

The one sure way of choosing the best available candidate is to allow the expression of interest and self-nomination which will overcome the present shortcoming of the system of appointment of judges so that the zone of consideration is enlarged and publicly known. It is this system of self-nomination which will ensure diversity of class, caste, creed, sexual orientation, leading to an understanding of the plurality and diversity that we need to see on the bench.

The writer is a senior advocate and former Additional Solicitor General of India