Now that the Union Cabinet has decided on the composition of the proposed Judicial Appointments Commission ( The Hindu , August 23, 2013), an informed debate becomes possible. The commission will be presided over by the Chief Justice of India, and will include two Supreme Court judges. The “non-judges” will be the Law Minister, two eminent persons and the Justice Secretary, who will be the Member-Secretary. The Leader of the Opposition in either House will be part of a committee which nominates the eminent persons, the other members being the Prime Minister and the Chief Justice. Thus, all the organs of the State, as also the citizenry, will be represented. And the judges will be marginally outnumbered. This is as it should be.
Checks and balances
Recent reactions of senior leaders of the Bar seem to take the view that the independence of the judiciary would be compromised by “outside” participation. The Chairman of the Bar Council of India is reported to have said that “we are totally against this National Judicial Appointment[s] Commission Bill because of the fact that in the process of appointment of judges, we do not want any interference from any outsider, including the executive” (PTI report, August 2, 2013). A later press release of the Bar Council of India (August 10, 2013) says “…. lawyers of the country are not going to tolerate the replacement of the existing collegiums with the proposed Commission, without the representation of the Bar Councils and the (Bar) Associations.” The president of the Supreme Court Bar Association is reported to have said that “loading the Commission with more members from the Executive and including fewer members from the judiciary would curtail the independence of the judiciary” and that “the cure should not be worse than the disease. The Bar will not agree to transfer the power of appointment to the executive. The collegium system can be improved by making methods of selection more transparent” ( The Hindu , August 16, 2013).
So far, the central issue of democratic accountability has either not been addressed, or swept under the carpet. This is the first reason why the collegium system needs to be scrapped. The Constitution functions under a system of checks and balances. Judges of the superior courts are given the power to strike down laws of Parliament and the State Legislatures, which in their view violate the provisions of the Constitution. The judiciary has, in addition, given itself the power to annul amendments to the Constitution if they violate the “basic structure” ( Kesavananda Bharati , 1973), and the political class has acquiesced. It is completely undemocratic if the selection to such a powerful institution is to be left entirely to a body of men and women concededly learned in the law, but unelected, and in practice virtually irremovable, thanks to a complicated impeachment procedure.
This self-selecting procedure, created by the judges themselves in 1993 is unique to our country. Other democracies are not worse off in the matters of judicial independence only because they have more “participatory” systems of appointment. Independence is nice, but with accountability, it is better.
Not their sole prerogative
There is a second reason why judicial appointments should not be the sole preserve of judges or even a body of judges and lawyers. The legal profession will assess professional merit only in terms of “technical” skills.
Forty years ago, in less salubrious times, the late Mohan Kumaramangalam created fear by stressing the importance of the “social philosophy” of judges to justify the supersession of three senior judges of the Supreme Court for appointment as Chief Justice of India. It is now time to think dispassionately. While the supersession of a judge can never be justified on the basis of his social or constitutional philosophy, surely it is a relevant factor to be taken into account at the time of appointment. Even if they consult senior lawyers, the collegiums only look at “technical” competence. While selecting lawyers for the High Court they look at their “levels” of practice, their incomes, their major arguments and their courtroom etiquette. And when judges are selected from the High Courts for the Supreme Court, it is mainly on the basis of their seniority (subject of course to the rejection of those whom the collegium decides to treat as “unfit”). Any interrogation on constitutional philosophy is outside the scope of this exercise. “There is only one philosophy” say judges and eminent lawyers and “that is the philosophy of the Constitution.” And, pray, what is that philosophy? We all know, after all, that the Constitution is what the judges say it is.
A recent Constitution Bench judgment has created consternation. In another of those “rapid” judgments, a five judge bench of the Supreme Court held that reservation in super specialities in the faculty of the All India Institute of Medical Sciences was unconstitutional. The correctness of that judgment is not the subject of today’s comment, though there is scope for two views on it. What is disturbing is an observation in the penultimate paragraph that “the very concept of reservation implies mediocrity.” There is no nuance here, no qualification, just a bald statement. The judgment is authored by the outgoing Chief Justice, who was of course under pressure of time. But four other judges who signed the judgment have not had a problem with the language. This is the judicial perception of reservation, while applying a 63-year-old Constitution which has affirmative action written into it. Can we seriously find fault with a legislator who wants to know what a judge’s constitutional philosophy is?
And there is a third reason why “outsiders” become relevant. Manpower planning is not a concept which the judiciary has ever considered important. Over the years both in pre- and post-collegium days, we have witnessed the spectacle of Chief Justices of India occupying office for periods like 41 days in the case of Justice G.B. Pattanaik, approximately one month in the case of Justices Rajendra Babu and J.C. Shah and as few as 18 days in the case of Justice K.N. Singh. There has not been a single occasion when a judge has renounced the high office to make way for a colleague who would have a longer tenure and would thus serve the institution better. The proposed commission needs to bring in human resource consultants as well, to ensure that only those with sufficient tenures will occupy these positions.
Similarly, High Court Chief Justices have occupied their positions for as little as three to six months en route to the Supreme Court. Little concern has been shown for the effect that these short-term appointments have on administration in the High Courts. Nor has there been too much worry about the quality of recommendations for judicial appointments by collegiums presided over by such short-term Chief Justices, who would really have had no occasion to assess the competence of such persons. There have also been instances where senior judges have been appointed as High Court Chief Justices for just a few days before their retirement, so that they do not lose out on the benefits of retiring from that higher position. While the judiciary has found it perfectly reasonable and legitimate to mandate a two-year term for Directors General and Inspectors General of Police ( Prakash Singh , 2006), that unfortunately is not sauce for the gander.
(Raju Ramachandran is a senior advocate, Supreme Court of India.)