By returning 43 out of 77 names recommended by the Supreme Court collegium for the appointment of judges in high courts, the Centre has discarded the principle of primacy of the Chief Justice of India (CJI) in appointments and transfers of the higher judiciary. In theory, the last word still belongs to the collegium, comprising of the CJI and four other senior judges of the Supreme Court (SC). In reality, the political executive is vetoing judicial selections.
Executive despotism in judicial appointments is a pre-condition for the debasement of democracy. The rejection of the collegium’s selections is akin to Indira Gandhi’s grievous assaults on judicial independence. In the 1970s-1980s,the government worked on the project of a “committed judiciary” by controlling judges’ appointments and transfers. The National Judicial Appointments Commission Act enacted by the NDA government gave the political executive, and two “eminent persons” chosen by it, final say in the appointment (or transfer) of judges. By striking down the NJAC, the court restored the collegium’s primacy.
It is undeniable that the collegium system bred improbity in some cases. The SC’s record in dispensing justice has also been patchy. It failed to give full justice to the victims of three state-supported riots: The 1984 anti-Sikh massacre, the 1992-93 Mumbai carnage and the 2002 Gujarat killings. Its judgement in the T.M.A. Pai Foundation case put fetters on the right to education. Justice A.K. Ganguly called this unconstitutional in his book Landmark Judgements. The 2013 NEET judgement, quashing single entrance tests for the medical course, impacted students. (The order was recently recalled by the SC). Some years ago, a CJI was publicly indicted for wrongfully taking up cases involving substantial corporate interests.
However, it was the SC that cancelled the 2G telecom spectrum licenses and the 214 allocations of coal blocks, granted dishonestly and illegally by the UPA regime. After May 2014, when several institutions meekly surrendered before the new government, the court upheld federal democracy and reinstated elected governments in Arunachal Pradesh and Uttarakhand.
In other constitutional and statutory institutions, where appointments are controlled by the political executive, the party which wins an election gives positions to cronies, relatives and friends. The positions of state governors, heads of academic institutions, even vice-chancellors of many universities, is telling. Will it be any different if in the appointment of judges as well, the executive has the ultimate power?
The appointment of A.N. Ray as Chief Justice of India in 1973 by superceding three judges; the mass transfer of 16 high court judges during Emergency in 1976 and the second supercession of the senior-most judge in appointing the CJI in 1977, are some egregious subversions of the judiciary by Congress governments.
The Janata government, elected to correct the wrongs of the Emergency, brought the Constitution (Forty-fifth Amendment) Bill 1978 (Bill No. 88 of 1978), providing that even the independence of the judiciary could be done away with through a public referendum. Fortunately, the proposed amendment failed for lack of majority in the Rajya Sabha.
Soon after being elected, the present government scuttled senior lawyer Gopal Subramanium’s appointment as a SC judge. As amicus, Subramanium had assisted in the investigation of the Sohrabuddin Sheikh encounter case, leading to Amit Shah’s arrest. Though the collegium had the power of re-nominating Subramanium, in which case the government was bound to accept it, he withdrew his consent, citing government’s malafide intent.
It will be interesting to see how the collegium deals with the current 43 names. The present crisis underscores the wide powers the government has, even under the collegium system. An adverse intelligence report, no matter how dubious, is enough to imperil the chances of even the most upright candidate.
Historically, chief ministers have had a significant say in the appointment of high court judges. The 14th report of the Law Commission of India (LCI) noted, “Chief minister has a hand direct or indirect in the matter of the appointment to the High Court Bench. The inevitable result has been that appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations, and likes and dislikes have a free play.” The LCI’s 80th and 120th reports made similar observations. The Arrears Committee (1990) observed, “Chief ministers have come to think that filling up vacancies on the High Court Bench is a matter of patronage, political or otherwise.”
Though, on paper, between 1983 and 1993, only seven judges were appointed without the CJI’s consent, in reality, many judges “were actually foisted on the judiciary” (Chapter 5, Vol. 2 of The Arrears Report). The pernicious influence of the executive on judicial selections may partly explain the failure of several high courts in protecting civil liberties and fundamental rights and ruling decisively in cases of corruption.
The current regime’s attempts to exercise the power of veto in judges’ selection will imperil our democracy. “Men are more often bribed by their loyalties and ambitions than by money,” said Justice Robert H. Jackson. Governments can appoint judges as governors, vice-president, even the president of India. The last thing we want them to do is to start appointing judges as well.