Seats they occupy are the seats of gods” and “it has a great sanctity about it”, remarked Mahavir Tyagi, constituent assembly member, on June 7, 1949, while referring to the judges and the higher judiciary.

His observations on some occasions were dismissed by BR Ambedkar as mere “feelings” which were perhaps of lesser significance for the assembly that was debating the constitutional edifice of the country. Tyagi was instead asked to express only his “opinions” on the matter.

Tyagi might have lacked the eloquence that could have garbed his “feelings” as an “opinion”, yet what he said was of great importance. His statement reflected the expectations that the people of the country had from the judiciary and the judges.

However, 66 years after Tyagi eulogised the judges, the ‘gods’ seem to have fallen from grace, compelling the executive to put the house in order.

On June 17, while arguing for the supreme court bar association (SCBA), senior advocate Dushyant Dave criticised the collegium system for bad appointments. He told ‘My Lords’ to step out of the courtroom and take a walk in the corridors to get a sense of what people felt about them and the frustration that had crept among the lawyers against bad appointments and the apparent decline in justice delivery system.
 

How judges are appointed in other countries

United States of America
The constitution of United States of America dictates the appointment procedure for the judges of the supreme court which requires the president to appoint the judges with the advice and consent of the senate. As the constitution of USA sets no qualifications for service as a justice, the president may nominate anyone to serve, subject to senate confirmation.

South Africa
All judges of the higher courts in South Africa are appointed by the president of the national assembly on the advice of the judicial services commission which consist of 23 members that includes chief justice (chair), two representatives of the presidents of the other courts, two practising barristers nominated by the profession, two practising solicitors nominated by the profession, one academic lawyer, six members of the national assembly, at least three of whom are members of the opposition, four delegates from the national council of provinces, minister of justice or delegate, four persons designated by the national president after consulting other party leaders. Appointment procedure followed by South Africa is the most rigorous one which ensures maximum independence to judiciary.

Germany
Judges to the federal constitutional court are elected by the two houses of the German parliament Bundestag and the Bundesrat. Basic law provides that each of these bodies selects four members of each senate, while the authority to select the court’s president alternates between them. The selection of a judge requires a two-thirds vote.

United Kingdom
An independent judicial appointments commission (JAC) is responsible for appointing the judges for courts in England and Wales and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland. The commission comprises of 15 commissioners. Twelve, including the chairman, are appointed through open competition, with the other three selected by the judges’ council (two senior members of the courts judiciary) or the tribunal judges’ council (one senior member of the tribunals judiciary).
 

 
An old tussle

The ongoing argument in the apex court on who will appoint the judges is not new. The subject has been rigorously debated in the constituent assembly too.

American historian Granville Austin in his seminal tome, ‘The Indian Constitution: Cornerstone of the Nation’, reflects upon how the independence of the judiciary was one area that consumed the biggest chunk of the total time spent on debating different provisions of the judiciary. He writes, “The members of the constituent assembly envisaged the Judiciary as a bastion of rights and justice. The question was how to render the fortress impregnable to sapping by private interests. The assembly had been careful to keep the judiciary out of politics. How was politics to be kept out of the courts? The assembly’s answer was to strengthen the walls of the fortress with constitutional provisions.”

The Sapru Committee report recommended that the justices of the supreme court and high courts should be appointed by the head of state in consultation with the chief justice of the supreme court, and in the case of high court judges, in consultation additionally with the high court chief justice and the head of the unit concerned.

According to Austin, the constituent assembly’s ad hoc committee felt that the appointment of SC judges should not be left to the “unfettered discretion” of the president and offered two alternatives. The first suggested that the president should nominate puisne judges (that is, judges of a superior court inferior in rank to chief justices) with the concurrence of the chief justice, and this nomination would then be subject to confirmation by a panel composed of high court chief justices, some members of both houses of the central legislature, and the law officers of the union. In the second alternative, the panel should submit three names to the president who would choose one of them with the concurrence of the chief justice.

With the enactment of the constitution in 1950 containing two specific articles – 124 and 217 – that dealt with the appointment of supreme court and high court judges, the matter seemed to be settled. The two articles clearly state that the appointment has to be made by the president in consultation with judges of SC and high courts in the state as  the president may deem necessary. However, through three cases (between 1981 and 1998), a new system of the appointment of judges, called ‘collegium’, came into place, which is now being replaced by a new body.
 
The collegium

In 1981, the supreme court declared that the “primacy” of the CJI’s recommendation to the president can be refused for “cogent reasons”. The judgment also stated that the word ‘consultation’ was not to be taken to ‘concurrence’. This tilted the balance of power in favour of the executive, which got primacy over the judiciary in judicial appointments for the next 12 years.

However, in 1993 in the ‘second judges case’ the apex court while reversing its 1981 judgment changed the meaning of the word ‘consultation’ to imply ‘concurrence’. It ruled that the advice tendered by the CJI is binding on the president. However, the same judgment also made it mandatory for the CJI to consult two of his senior-most judges while making the recommendations, paving the way for the collegium system.

Later in 1998, the apex court ruled that the consultation process to be adopted by the CJI required consultation of “plurality of judges” and the sole opinion of the CJI did not constitute consultation process and he should consult collegium of four senior-most judges of the supreme court. If any two judges dissent, the CJI should not refer the name for appointment.

Through the last two cases, the supreme court in some way democratised the appointment procedure by allowing a voice of dissent, but at the same time monopolised the power of appointment in its own hand.
 
Misgivings of collegium system

On that chilly January morning last year, the number of lawyers and presspersons increased in a Chandigarh court with each passing minute, making the place stuffier. A restrained inquisitiveness was clear on the faces of all those present in the room. The obvious question was whether it will happen that day. After three and a half years when the then chief justice of India HS Kapadia granted sanction to prosecute justice Nirmal Yadav, then a sitting judge of a high court, in an alleged corruption case, the charges were expected to be framed. Finally, the special CBI court in Chandigarh framed charges against Yadav and four others under section 11 of the Prevention of Corruption Act.

On March 3, 2011, just a day before her retirement, CBI charge-sheeted Yadav, making her the first sitting high court judge to face this ignominy in a corruption case. Yadav was accused of demanding '15 lakh for deciding a judgment in favour of a client of lawyer Sanjiv Bansal, a co-accused in the case.

It took more than three years to frame the charges against Yadav as she filed multiple petitions to stall the trial in the special CBI court.

The case is a classic example of the flawed working of the collegium system, its failure to check the entry of the corrupt in the higher judiciary.

Anupam Gupta, a senior advocate at the Punjab and Haryana high court and CBI special public prosecutor in Nirmal Yadav case, says, “The vicissitudes of the justice Nirmal Yadav case demonstrate just how difficult and taxing it is to combat corruption in the higher judiciary. In principle, however, I would agree with the law laid down in 1991 in Veeraswami’s case that prior approval of the CJI must be obtained before investigating or prosecuting a high court or supreme court judge. That is a legitimate and necessary protection against any executive misuse of the power of law enforcement.”

Over the years, the collegium has been in the news for all the wrong reasons, be it for recommending the then Karnataka high court chief justice PD Dinakaran to the supreme court or ignoring the then Delhi high court chief justice AP Shah for elevation to the apex court. Adding to this list is the allegation made by Gujarat high court chief justice Bhaskar Bhattacharya against former CJI Altamas Kabir of impeding the former’s elevation. Bhattacharya had opposed the appointment of Kabir’s lawyer sister to the bench.

Mohan Parasaran, a senior advocate at the supreme court and former solicitor general of India, says, “Right from 1993 there have been lots of complaints against the working of collegium. No system can be satisfactory if the appointments are made with any ulterior motives. In the collegium system there have been some appointments that were made possibly to satisfy some of the members of the collegium, who were wielding a lot of authority. And those examples were openly pointed by the government before the supreme court.”

While the collegium has been criticised for wrong appointments, the fact remains that the stakeholders are not ready to trust the executive fully either, in this regard. 

“Judicial integrity and independence are inseparable Siamese twins and one cannot be traded off for the other. The procedure for in-house inquiry and action followed by the supreme court, on the administrative side, in some important matters in the past has proved to be efficacious and ought to be resorted to as and when necessary. It would be hazardous to speculate as to what the new national judicial appointments commission (NJAC) system would do in this regard, in the event of the 99th Amendment being upheld,” says Gupta who is also a well known activist for judicial accountability.
 
NJAC: The alternative?

April 13, 2015 was a watershed in the constitutional history of India. The government notified the National Judicial Appointments Commission Act, 2014 and the Constitution (Ninety-ninth Amendment) Act, 2014 for bringing a change in the existing system for appointing judges in supreme court and high courts.

The new bill was passed in August last, and got the president’s assent on December 31. Under the new law, the NJAC, headed by the CJI, and two senior-most supreme court judges along with the union minister of law and justice and two “eminent persons” nominated by a committee comprising the prime minister, CJI and leader of opposition in the Lok Sabha or leader of the largest opposition party in the lower house will select judges of the apex court and state high courts.

While notifying the bill, the ministry of law and justice stated, “The Act provides for a transparent and broad-based process of selection of judges of the supreme court and high courts by the NJAC.”

While the government thought that by creating a new body it will be able to give a silent burial to the collegium system, the judiciary seemed to be in no mood to cede the ground to the executive. The legal house is also divided on the issue with a host of PILs, challenging the validity of NJAC, being filed in the apex court and now being heard by a constitution bench led by justice JS Khehar.
One such petition was filed by the Centre for Public Interest Litigation (CPIL) which includes legal luminaries like Fali S Nariman, Shanti Bhushan, Anil Divan, Rajinder Sachar and Colin Gonsalves among others.

The petition states several grounds for challenging the NJAC. While other grounds like independence of the judiciary and political interference have been part of other PILs also, the one filed by CPIL highlights that NJAC being an ex-officio body is not competent enough to select 100 judges of the higher judiciary every year.
 
A turf war

While some might have thought that the case will help in deliberating on the prospects of a new robust system of appointing judges, the manner in which arguments in the apex court have progressed in the last few weeks has given it the colour of a turf war being fought by the judiciary and the executive.

However, Parasaran feels, “The biggest mistake appears to be that one section perceives it as a turf war between the executive and the judiciary. But people forget that the NJAC was born out of a unanimous will of the legislature, of parliament and state legislatures and this should not be viewed as a turf war because under the constitution, the power [of appointment of the judges] was to be exercised by the executive and the judiciary both, which was the underlying principle in the original constitution. However, somehow this power was made to rest exclusively with the judiciary by devising the collegium system.”

There are many who feel that while the collegium system has failed, the new system also cannot be trusted. “If judges cannot be trusted, can politicians be? The sense of impunity [or freedom from scrutiny and accountability] with which the collegium system has been operated inspires little confidence in the process of judges appointing judges, ushered in by the Judges’ Appointment and Transfer Case of 1993,” says Gupta.

He adds, “The number of undeserving persons appointed as judges in the last two decades is no less than the number of appointees intellectually and ethically worthy of the honour. But the credentials of the executive are no better, not a whit better, than that of the judiciary. The stock of genuinely ‘eminent persons’ being highly limited, especially eminent persons who are also genuinely independent, the NJAC cannot succeed where the collegium system has failed. Whether by the one or the other, judges will continue to be chosen and appointed with complete subjectivity, almost like governors. The only change that will come about, in case the NJAC amendment is upheld, is that the judiciary will become weaker, losing the power that it wrested from the executive in 1993. It is a battle for power, the debate over good or bad judges being only an argument.”

There are a few who outright reject the NJAC as an attack on the independence of the judiciary. Colin Gonsalves, a senior advocate at the supreme court and founder director of the Human Rights Law Network (HRLN), says, “The government is trying to appoint all pro-BJP and pro-RSS judges. They are trying to undermine the independence of the judiciary and it is the gravest challenge to the democracy.”

On the other hand, Parasaran says, “Naturally the judiciary does not want to divest this power. There is a genuine apprehension in judiciary, considering the current political scenario in the country that if this power is actually divested from them there will be more scope for its abuse. They feel that many unwarranted elements might be appointed due to political patronage and supersession might take place. They will not like to take any chances. It is like playing with fire.”
 
The Argument begins

There is more than one bone of contention that is making it difficult for the judiciary to reach to a conclusion.

Eminent person: The apex court on June 11 questioned the centre over lack of provisions in the NJAC Act for removal of two eminent persons in NJAC and sought to know whether there was any scope for judicial review. This is one of the valid concerns as there is an apprehension among those opposing the NJAC that the government might appoint pro-government people to the commission.

However, attorney general Mukul Rohatgi said that eminent people who may or may not be jurists can contribute to judges’ selection process, and named great film maker Satyajit Ray, Bill Gates and MS Swaminathan as examples.

This is akin to the emotions expressed by Tyagi when he argued for non-lawyers to be made judges. “Why should we always have lawyers as judges? I think there is a good possibility of persons, who are otherwise fully qualified to administer justice, occupying the posts of judges and attain the highest ambition of their life,” said Tyagi.

Whatever the argument may be, the apex court would not easily allow appointment of outsiders to the NJAC.

Commenting on this Anupam Gupta says, “The two ‘eminent persons’ have been brought only to counter-balance the three judicial members of the NJAC, since any two members of the commission can veto the preferences of the rest, as per Section 6(6) of  the NJAC Act, 2014. Their inclusion is thus the route to the restoration of the primacy of the executive in the selection and appointment of judges. The provision for their nomination by a three-member committee, two of whom would be non-judicial (prime minister and LoP), and the requirement that one of them must belong to the SCs/STs/OBCs/ minorities or women give a clear political and populist slant to the composition of the NJAC.”

He adds, “Absolutely no other norms or parameters have been set out in either the Constitution 99th Amendment Act or the accompanying the NJAC Act for the selection of the ‘eminent persons’ themselves. The expression is delightfully open-ended and the choice, not limited to law-persons, depends entirely on the wisdom of the three-member committee comprising the PM, CJI and LoP. If the wisdom (and detachment) of the collegium does not inspire confidence any longer, on what earthly basis can one repose unstinted faith in the wisdom and detachment of the committee that will select ‘eminent persons’?

“However eminent a person Satyajit Ray might be in his own field, his selection of judges would in most cases be a decision marked by ignorance of law and jurisprudence. And not every eminent person would have the intellectual independence of a Satyajit Ray. Neither naiveté nor conformism will yield a crop of outstanding judges. Its reliance on eminent persons is the Achilles’ heel of the 99th Amendment,” says Gupta.

However, Parasaran feels that inclusion of eminent persons in a way will democratise the appointment process. “The matter is approached in a wrong way. The government should have pointed out that nobody is blaming any system. But they wanted to actually have a system which is acceptable from a democratic point of view.”
 
Wrong appointments: Attorney general Rohatgi while arguing the case stated that there has been an example where a judge did not write even 100 judgments in 15 years of his tenure. In spite of that the collegium brought laurels to him. However, the bench questioned the government as to why they rewarded the same person with a post in the national human rights commission and on June 18 put forward records showing that judgments delivered by the particular judge were well beyond three figures, contrary to the government’s claim.

Though the attorney general has been quite vocal in his assertion of wrong persons being appointed to the higher judiciary, his case still falls weak in the face of the aggressive arguments put forward by the bench.   

Balancing act: One of the most contentious issues in the entire debate has been that the Act shifts the balance of power in favour of the executive as dissent by two other non-members can anytime restrict the unanimous recommendation of the three judge members. Gonsalves says, “We know there is a problem with collegium but that does not mean at all that you allow the government to pack the judiciary with pro-government judges. They want the balance to tilt towards the executive.”

 
Transparency: One of the criticisms of the collegium system has been a lack of transparency. While the government has asserted that NJAC will be more transparent and a better system, it has not been able to fully convince the apex court as to how it will be so. 

Parasaran while dwelling on the issue says, “The government wants to bring in transparency in the appointment of judges. However, the judiciary feels that if it becomes transparent it will impact the justice delivery system in the sense that if a high court judge is considered for the appointment to the supreme court or the service judges for the appointment to the high court and if his name is rejected and this information becomes public, the situation will become difficult as he will still continue serving as the judge of the court he is serving in and this will lead to serious embarrassment to the concerned judge and will impact justice delivery.”

He adds, “Therefore, we have to maintain some sort of confidentiality. And for that, the government has given some sort of assurance.”
However, CPIL feels that NJAC lacks transparency. Its PIL states, “The said Act does not lay down any standard of transparency, which is a sine qua non for appointments to high offices as held by this Hon’ble Court in various judgments. The said Act also does not lay down any objective criteria for the selection of judges. It does not also state how the NJAC would evaluate the candidates for final selection. Therefore, the said Act gives unguided discretion to the NJAC to make arbitrary selection in an opaque manner.”

Transfer of judges: The Act provides that the NJAC can make recommendations for transfer of chief justice and other judges of the high courts. The procedurto be followed will be specified in the regulation. This has again attracted strong criticism.

Anupam Gupta says, “The power of transferring judges (from one high court to another) must remain with the judiciary or the CJI. It would be disastrous for the independence of the judiciary if the executive were to be given back this power either directly (as was the situation before 1993) or indirectly through the NJAC. The culture of judges looking over their shoulders at the government (or the NJAC) before deciding cases or pronouncing judgment must be avoided and pre-empted at all costs.” 

He adds, “It is astonishing that the debate in the supreme court has not touched upon transfers at all. Even if the NJAC were to be composed of an ideal team of Platonic guardians, it must not be allowed a monopoly of both appointments and transfers. Such a concentration of power, even the power of accountability, is highly undesirable and cannot but be misused. The power to transfer judges ‘in the public interest’ (the ubiquitous and euphemistic formula which cannot, unfortunately, be improved upon) must continue as a major instrument of judicial accountability. But it must reside in-house, not outside the judiciary.” 
 
The other way out

While there are valid arguments against both the collegium and NJAC, the question now arises as to what is the way out of this logjam. A suggestion in this regard has been made in the PIL filed by CPIL. It states, “The committee on judicial accountability (a voluntary body of senior lawyers and retired judges) proposed a bill for the constitution of a full time and independent body called the judicial appointments commission for the selection of judges to the high courts and the supreme court. It was proposed that such a body could be constituted from among retired judges or other eminent persons who are selected in the following manner.

“The chairman to be selected by the collegium of all judges of the supreme court. A second member by the collegium of all chief justices of the high courts. A third member by the union cabinet. A fourth by the collegium of the leaders of opposition of the two houses of parliament along with the speaker of the Lok Sabha. A fifth by a collegium of the CEC, the CAG and the CVC. Each of these members of the judicial appointments commission would have a tenure of five years and would thus be independent of the government as well as of the sitting judiciary. This body would be mandated to function transparently and would have to publish the persons shortlisted for appointment for the information and comments of the people, before the final selection. Being a full time body, it would lay down the criteria for selection and would be mandated to go about its task in a structured and rational manner.”

Gonsalves suggests, “The third alternative is to have a collegium system and to expand it little bit and include one or two outsiders so that balance does not shift to the executive. Introduce certain people who will bring in transparency. Suppose you have one representative of the government, there is no problem but you have to ensure that the balance does not shift in favour of the government.”
 
Logjam continues

On April 27, chief justice of India HL Dattu refused to participate in a three-member panel for selecting two eminent persons.

Attorney general Mukul Rohatgi marked the development as “constitutional stalemate”, and said that the bench may ask the CJI to take part in the meetings for selecting the two members of the NJAC. Following which the bench sought the views of eminent lawyers including Fali S Nariman, K K Venugopal, K Parasaran and Harish Salve.

Venugopal and Parasaran opined that it was constitutionally impermissible for the CJI to decline participating in a process which was mandated by the constitution. On the other hand, Salve asked for continuing with the hearing of the petitions challenging the validity of the NJAC Act and meanwhile the bench can decide the need for an interim order to break the stalemate.

Appointment of regular chief justices to five of the 24 high courts are pending and the logjam will only hamper the justice delivery system. While concerns related to NJAC are valid the fact remains that it can always be challenged like the collegium if it fails to function properly.

As Parasaran points out, “There have been problems in the collegium and an attempt is made to bring in a system that can remove the criticism of courts for wrong appointments. Moreover, the judiciary will always have power to quash wrong appointments. That power cannot be taken away.”

He adds, “If they wrongly veto two appointments, NJAC will become toothless. If NJAC misbehaves, the SC sits the next day and strikes down the NJAC.”

shishir@governancenow.com

(The article appears in the July 1-15, 2015 issue)