A recent news report had it that the Law Minister had written to the Chief Justice seeking a place on the collegium for a representative of the government. Amidst a flurry of denunciations, the Minister denied making the request, saying he only had in mind a place on a potential search and evaluation committee to put forth names of candidates for judgeship. Perhaps he should have done what he said he didn’t; and perhaps that would get us out of this huge controversy that the collegium system has become.
A place at the deciding table is not an unreasonable request for the government to make, considering that the Constitution envisaged appointment of judges by the President, after consultation with the Chief Justice and other judges. The Supreme Court swung this power over to a body packed exclusively with judges and called it the collegium. Over the years, while it has functioned reasonably well it has also made startling errors of commission and omission. One point on which it has been repeatedly upbraided, by the Bar and commentators and also respected retired senior judges, is its opacity, insularity and lack of transparency. There is little defence to this charge.
Nobody in their right minds wants to shift this back to executive control and decision, and indeed even the government is not desirous of that. Its NJAC effort in 2015 envisaged a body where three senior most judges were equal in number to the others who consisted of the law minister and two eminent persons. That, mind you, was enacted by the unanimous vote of Parliament and required State Legislatures. The Supreme Court struck it down using the basic structure formulation, saying that it endangered the independence of the judiciary. A principal ground was that two members could effectively veto a proposal, so the judiciary could be obstructed. Jagdeep Dhankhar has targeted the basic structure doctrine in the cross-hairs of his vice-presidential rifle; that is unwise since the doctrine only establishes the inviolability of the essential features of our republic, without which it can become a Talibanised autocracy. He is also mistaken in saying that a transient Parliament is supreme. It is the Constitution which is supreme and all organs of State must function within its limits, and all laws must pass the constitutional test which it is the duty of the Court to administer.
However, that still leaves open the sore point of judges being exclusively appointed by judges, and one may take it that unless properly resolved, it will continue to fester and damage the relationship between the court and the government. That is one where there must be a check and balance and a drawing of the line, but must also aim for a functional cooperation where needed. The executive is a stakeholder and its voice needs to be heard on the making of judicial appointments. We are not comfortable with taking away judicial primacy, but that should not equal judicial exclusivity. And we need a method which obviates constant back and forth and delay and raising of untenable objections. And one which is not devoid of transparency. Is it so very difficult to create a system which responds to these basic needs?
There is a certain advantage to giving people a place on the table. It compels them, all of them, to be reasonable and not take stands that they cannot justify. It permits the key questions “why” and “why not” to be asked. It forces discussants to disclose their reasons and back them up, or withdraw their proposal or objection. If denied this place, an entity which considers itself a stakeholder resorts to obstruction and delay and does this conveniently from its own premises free of contradiction and explanation.
Coming to composition, let us avoid the pitfall the NJAC fell into. Have five members, three judges, let them have the majority so that there is no fear of overruling the judiciary. Given the Indian context, it is undeniable that this is what most of us would feel safer with. One seat for the Law Minister who can come ready to place the government’s views, listen and discuss. And accept the finality of the decision. That puts an end to obstructive delay sometimes amounting to denial.
And it’s time the Bar raised its hand for a seat on the table. For several reasons. One is that it is an excellent source for inputs about the deservedness or otherwise of lawyers aspiring for judges, and similarly of judges in line for elevation. A candidate may be able to get past a judge who knows him little, or get a pass from a judge who knows him too much, but will find it difficult to pass the test of keen observation and analysis of lawyers done over the years. The Bar is a vital stakeholder; senior judges will retire soon but lawyers have to suffer a deficient newcomer, or benefit from a good one, for years to come. Of course, one must pick a strong, independent and neutral voice for the Bar, which has access to good lawyers across the country. The President of the Supreme Court Bar Association may fit the bill. This would also take care of another objection to the NJAC composition, that the eminent persons it envisaged had little connection with the world of lawyers and judges.
One important lesson from my mediation practice is that when both sides dig deep into their conflicting stands, one must look for solutions that give each side most of what it most needs, and very often that can be different for each side. This scenario is such a case – primacy for one, participation for the other. Another lesson is for both to contemplate the alternatives to resolution – in virtually all cases it is discord and damage and breakdown of relationships. It is from such realisations that wise choices must be made.
The writer is Senior Advocate, Madras High Court
