Netas, legal eagles spar over how to pick judges

The political class wants greater say in the way judges are selected. This could lead to friction with the judiciary


Deevakar Anand | September 3, 2014

The three pillars of democracy are at war. The executive, aided by the legislature, has an upper hand over judiciary in the ongoing turf war over the national judicial appointments commission (NJAC) bill, 2014.

The Narendra Modi-led government proposes to turn over more than two-decade old collegium system of selection of judges of the supreme court (SC) and high courts (HC). The political class is united on the issue. On August 13, it was evident in the Lok Sabha, and later in the Rajya Sabha. With barely one or two MPs registering their meek opposition to the NJAC, the bill sailed through in both the houses with support from opposition parties. For the NJAC bill to get a constitutional reckoning, the government also got an amendment bill passed in parliament.

The contention? Judicial overreach and that the collegium system had outlived its utility. Law minister Ravi Shankar Prasad said parliament must not refrain from the authority it has been given for enacting law. “If it (the bill) is challenged, then we will see it. Why must parliament be wary of using its powers? Parliament must have full trust in its ability to pass the law,” he said in the Rajya Sabha.

According to the bill’s draft, it “seeks to broadbase the appointments of judges in the SC and HCs, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointments of judges.”

The NJAC bill doesn’t define who would be the two eminent persons to be members of the panel and that makes it vague.

Justice Vishweshwar Nath
Khare, former CJI

Judicial circles, on the other side, echo constitution expert Upendra Baxi’s views. “There are aberrations but where is the empirical evidence that collegium system has failed?” he told Governance Now.

The professor of law at the university of Warwick and former Delhi university vice chancellor is sceptical about scrapping the collegium. Baxi is of the view that independence of judiciary and judicial review is an essential feature of the constitution. Primacy of judiciary in appointment of judges is implicit in that. “And since the bill alters that basic constitutional structure, the government ought to have consulted the judiciary and made the bill constitutionally compatible before tabling it in parliament ,” he says.

Barely two days before the Lok Sabha passed the bill on August 13, chief justice of India (CJI) RM Lodha minced no words in an open court. There were concerted efforts to vilify the collegium system, he said while hearing a petition on justice Manjunath’s appointment as chief justice of Punjab and Haryana high court.

What gives the executive ground for scrapping the collegium is the flaws and opaqueness it has developed over the years and serious allegations of SC and HC judges selected through the collegiums being compromised.

There are aberrations but where is the empirical evidence that collegium system has failed?

Upendra Baxi
constitution expert and former DU vice-chancellor

But while most eminent jurors agree the collegium system had flaws and had become opaque over the years, many believe tinkering with it and the constitution in the manner, as being done in this case, is not a great idea.

Justice Vishweshwar Nath Khare, who was the 33rd CJI (December 2002 to May 2004), says, “The NJAC bill doesn’t define who would be the two eminent persons to be members of the panel and that makes it vague.

“The veto power for any two members will lead to unpleasant deadlocks and over the years, will result in a compromise formula between the executive and the judiciary wherein both will start accommodating each other’s choices on case specific basis. This will result in selection of poor quality of judges,” says Khare, who was one of the legal experts – along with Fali S Nariman, Soli Sorabjee, Shanti Bhushan, and Upendra Baxi, among others – the ministry of law and justice consulted before proposing the NJAC bill.

By August 21, four petitions challenging the constitutional validity of the NJAC bill were filed in the apex court. One of them by the Supreme Court Advocates on Record Association (SCAORA) was settled (that is, finalised with inputs from) by senior lawyer Fali S Nariman. “The NJAC bill takes away the primacy of the collective opinion of the CJI and the two senior-most judges of the SC as even if all three senior-most judges collectively recommend an appointee, the appointment is liable to be vetoed by the other three members -- one of whom is part of the executive (minister in government) and the other two ‘eminent persons’,” said the petition.

The move to replace collegium with NJAC entails far-reaching effects on judiciary, as it adjudicates on the decisions and work of the executive and the legislature.

SCAORA secretary Vipin Nair, through whom the petition was filed, says that even though advocates agree on record that the collegium system faltered in some cases, what the NJAC proposes is to allow the executive a free hand.

Old conflict, new players
The conflict between the executive and the judiciary on who has an upper hand in the selection of judges is not new. The NJAC bill is the culmination of intermittent attempts in the last two decades to change the collegium system in place since 1993, and which is tilted in favour of judiciary.

Articles 124 and 217 of the constitution that refer to the procedure of appointment of judges to the SC and HC give the executive an upper hand in the process. According to Article 124, every SC judge should be appointed by the president after consulting the CJI and other judges of the SC and HCs. Article 217 stipulates that every HC judge should be appointed by the president after consulting the CJI, the governor of the state and the chief justice of that high court.

But through a judgment in 1993 in the noted ‘Second Judges’ case, the SC changed this process of selection of judges and brought the collegium system.

Though the convention of the executive taking the call in consultation with the judiciary worked well for over three decades, the tilt of supremacy towards the executive and public opinion against politically motivated judicial appointments led to the 1993 judgment.
For instance, in 1973, the Indira Gandhi-led Congress government bypassed three senior judges JM Shelat, KS Hegde and AN Grover to pick a pliable judge, justice AN Ray, as CJI.

In 1981, then law minister in the Congress government P Shivshankar issued a circular to obtain the consent of the HC judges to be transferred and posted to any HC across the country. This was seen as an attempt to compromise judicial independence.

Instances of gross political interferences led to a set of petitions in the SC in the late 1980s, one by SCAORA and  one each by lawyer Subhash Sharma and the Bombay bar association. In 1993, a five-judge bench headed by justice JS Verma turned the tables in the selection  process. The collegium system was established and it was ruled that in case of a conflict between the CJI and the president, the views of the judiciary would prevail.

In that judgment, the court interpreted the expression “consultation” with the CJI in appointments as “concurrence”, for a remedial measure to establish the judiciary’s primacy in appointments as against the executive’s.

In 1997-98 then CJI MM Punchhi recommended five names for SC judges but then president KR Narayanan refused  his assent and asked for opinion of the apex court on selection of judges. A nine-judge bench endorsed the same collegium as established in the ‘second judges’ case. The only change it brought was that as against two senior-most judges, the collegium would thereafter have four.

The ‘second judges’ case establishing the collegium came under scanner not only for lacking transparency in selection of judges but several jurors termed it ‘counter-majoritarian’. The logic behind this is that though judges exercise enormous powers in matters of governance, they are, unlike the executive, not answerable to the people.

In the light of several cases of judicial impropriety against senior judges, this sense became more pronounced. During the debate over the NJAC bill in the Lok Sabha, Trinamool Congress’ MP Kalyan Banerjee alleged that the chief justice of the Gujarat high court, justice Bhaskar Bhattacharya, was not elevated to the supreme court, as he failed to attend a function in which the CJI was present.


In place since 1993, the SC judges have so far been selected by a panel (called collegium) comprising the CJI and four senior judges of the same court. In the case of high courts, judges are appointed after a collegium of the particular HC proposes the name which then is cleared by a three-member SC collegium headed by the CJI. One of the other two judges in the SC panel must have been associated with that particular HC in the past.



The new system proposes a six-member body consisting of the CJI, two senior-most judges of the SC, union law minister, and two other eminent persons picked by a panel comprising the prime minister, leader of opposition and CJI. If any two of these members veto a selection, it will not go through.

Legal expert Zia Mody in her book ‘10 Judgements That Changed India’ writes that “within two decades (since the collegium system is in place), we have moved from one extreme to the other: from a judiciary controlled by the will of the executive to a judiciary with theoretically unbridled and unchecked power. Today, there is no institutionalized system of making recommendations for the appointment of judges. The lack of transparency in the process has impacted the Supreme Court’s legitimacy—legitimacy it must desperately preserve, given the super-administrative role it has undertaken in the Indian democratic set-up.”

Jutice JS Verma who wrote the ‘second judges’ case later regretted the judgment in an interview. It had been misunderstood and needed a rethink, he had said.

In 2000, the NDA government set up the National Commission to Review the Working of the Constitution under former CJI MN Venkatachaliah. It advocated participation from both judiciary and executive for selection of judges, but refrained from making any radical recommendation.

If there’s a will, there could be a way
Amid such swinging from one extreme to another, former CJI Khare suggests a golden middle path. If things are not working in the desirable way, he says, it does not mean that the system per se is bad.

“You have to see that the persons who operate the system are responsible for all the problems. The system hasn’t collapsed. Some aberrations have taken place because of indiscretion of some chief justices. There should be a dedicated agency to check the background of those to be appointed as judges. The intelligence bureau (IB) should form a separate wing, for example, that should be entrusted with the job of giving inputs. And this wing should be at the disposal of the collegium. What currently happens is the collegium recommends names to the law ministry, which, in turn, asks the home ministry for a feedback,” says Khare.

Others like senior supreme court lawyer Prashant Bhushan advocate more transparent practices like calling for applications and nominations and then selecting judges on defined criteria.

The battle continues
For now the apex court seems to be playing ball with the executive, as it refused to hear the four PILs against the NJAC bill. A constitutional bench headed by justice AR Dave and also comprising justices J Chelameswar and AK Sikri, which took up the matter on August 25, said it couldn’t hear the petition “at this stage” as it was “premature” for them to interfere. The bill meanwhile awaits the president’s nod.
The matter, however, doesn’t end here. The court has left the door open for a hearing at a “later stage”.

This story first appeared in Magazine Vol 05 Issue 15(01-15 Sept 2014)



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