The fraught question of judicial appointments has drawn attention again, with Law Commission Chairperson Justice A.P. Shah’s suggested modifications to the current process. In the context of the Modi government’s rejection of Gopal Subramanium’s appointment to the Supreme Court, and Justice Markandey Katju’s allegations of political interference, these recommendations must be weighed carefully. The collegium system put in place after a 1993 Supreme Court judgment has been seen as a departure from constitutional text that gives the executive primacy in matters of appointment and transfer, but requires prior consultation with the judiciary.
Now, there is near unanimity among stakeholders on the need for a new balance between the independence of the judiciary and its accountability under the Constitution. There have been repeated demands to replace the collegium system with a Judicial Appointments Commission (JAC) with representation from the judiciary as well as the executive. At the same time, the unusual strength of the present executive has provoked fears that it may be more muscular in defining its role in appointments. More transparency in the selection and appointment process is the only way to settle these controversies.
The UPA had introduced two bills in 2013 to replace the collegium system with a JAC that would allow the composition to be decided by Parliament, include an equal number of members from the judiciary and the executive, and whose recommendations would not be binding on the president. Justice Shah’s recommendations, on the other hand, seek to preserve judicial primacy. In his version, the JAC would be a constitutional body. Second, it would have a majority of members from the judiciary (four out of seven).
Third, its recommendations would be binding on the president. Fourth, it would have its own investigative mechanisms and not rely on reports from the Intelligence Bureau, as is currently done. This last recommendation assumes significance in the wake of reports that the NDA used an IB report to reject Subramanium’s appointment. Selection processes aimed at keeping institutions accountable cannot rely on arguably the most unaccountable institution in the country. At the same time, an investigative process under a JAC in which the judiciary has primacy may also become compromised without greater transparency.
The judiciary is tasked with upholding the Constitution and being the final protector of individual fundamental rights. Any allegations of bias, interference and corruption lower its prestige and come in the way of its ability to perform its functions. Justice Shah’s recommendations in favour of ensuring judicial primacy are valuable but there is also a need to strengthen accountability. The judiciary should not have a veto on the appointment process. The debate surrounding its independence and accountability is crucial to democracy — the JAC will be truly reformist only if it finds the right balance between the two.