The judicious process


The Indian judiciary has been very active, especially in recent times. It has often dealt the decisive blow to the misadventures of the executive and the legislature, says Prof. P.M. Kamath. But is that the entire story?

Who selects and appoints judges of the Supreme Court (SC) and High Courts in democratic federations all over the world? India is a democratic federation undoubtedly. A majority in the Indian Constituent Assembly (ICA) were members not interested in any innovations; rather, they were happy to borrow.

Hence, they had sent B.N. Rau, ICS, adviser to the ICA to travel to major democracies of the 1940s to study constitutions of the US, Canada, Ireland and the UK. There is a pattern in his visit: Two countries — the U. S. and Canada – were federal in form, while Ireland and the UK were unitary systems. The importance of his role can be understood from the fact that before signing the draft Constitution, as the President of the ICA, Dr. Rajendra Prasad, acknowledged knowledge and erudition with which Rao had helped members of the ICA in performing their role.

Examples from the world
In the US, SC judges are appointed by the President; but all such appointments are subject to confirmation by the Senate Judiciary Committee. It is worth noting that in 1787 when the American founding fathers wrote their Constitution, they were aware of the democratic need for people’s representatives in the federal system to participate in the judicial appointments; particularly when they were given life term appointments in the Constitution. That has now, with the democratisation of the American political system, turned into people’s representatives participating in the appointment of federal judges. In the Canadian Federation SC judges are appointed by the Governor General, on the advice of the Prime Minister from the Provincial Bar or from amongst those who are already working in the lower judicial positions.

In Ireland, judges of highest court are appointed by the President on the binding advice of the government; the government itself decides names on the recommendations of the Judicial Appointments Advisory Board, though its advice is not binding on the government. In the UK on the other hand, SC appointments are made by the Queen on the recommendation of the Prime Minister, who too receives inputs from a Selection Commission.

However, public opinion in the 1970s and the 1980s was critical of federal governments, particularly ones headed by Indira Gandhi; because they had a grouse that the power of appointment of Supreme Court’s judges had been misused by the governments. Undoubtedly, Mrs. Gandhi used the power to punish a judge for unfavourable judgement against her or the government led by her.

India on the other hand, provided for the President of India, appointing the judges of the SC and High Courts on the recommendation of the government. There was neither judicial commission nor the selection board to recommend appointments to the highest courts like the high courts and the SC. It was open to those in power to select candidates to judicial positions, provided they fulfil qualifications prescribed in the Constitution. Thus, it was open to the executive branch to select for the SC, any citizen of India with ten years as an advocate of a High Court or has been the judge of a High Court for five years or in the opinion of the President, one is a distinguished jurist.

Emergence of the Collegium
However, public opinion in the 1970s and the 1980s was critical of federal governments, particularly ones headed by Indira Gandhi; because they had a grouse that the power of appointment of Supreme Court’s judges had been misused by the governments. Undoubtedly, Mrs. Gandhi used the power to punish a judge for unfavourable judgement against her or the government led by her. Thus, for instance, Justice H. R. Khanna was superseded in the appointment as the Chief Justice, by her during national emergency by appointing a junior judge, Justice Beg, as the Chief Justice of the SC; this was because Justice Khanna had questioned the government’s stand during the notorious national emergency period that fundamental right to life is not absolute, and life can be taken away by the government! That position was upheld by four judges in the five judge bench, while Justice Khanna had dissented.

Highest judiciary maintains its credibility, despite the fact that it neither has the power of money that is enjoyed by the Parliament, nor coercive power possessed by the Executive, by keeping an eye on the public opinion. The public sharing an opinion may vary from decision to decision, yet the SC maintains its credibility by a floating public opinion.

In the 1980s, exploiting public opinion that was against the executive appointments of judges, SC as the supreme judicial authority in India, gave to itself the power of selecting and recommending appointments, promotion and transfers etc., of judges to themselves in what is popularly called as ‘three judges case’. For this work the SC has created a Collegium with the Chief Justice as the chair and four other senior judges as members.

An assessment of the Collegium
What has been the record of the Collegium in maintaining credibility of their appointments? Though initially, there was not much of criticism of SC selecting candidates for appointing them as judges to High Courts and the Supreme Court, now the public opinion is critical of the procedure. Even some of the retired judges have criticised the Collegium system. The Supreme Court Bar Association, for instance, accused the Collegium of creating ‘a give and take culture’, by nominating judges’ relatives, friends or nominees etc.

There is no transparency in the selection procedure; records are not accessible under RTI (Right to Information), and not even to the judges of the same court as stated by Justice Chelmeshwar! On the other hand, for instance, in the private-aided schools, government directs managements to follow a comprehensive procedure of advertising, inviting applications, interviewing candidates, and take note of marks assigned by the selection committee! All the record has to be submitted to the government before the candidate selected is accepted by it. Does this mean that the higher you go in the hierarchy, more the procedure of transparent selection is sacrificed? Justice C.S. Karnan’s appointment destroyed whatever credibility the Collegium system had.

Under the circumstances, the NDA II government had done well in 2014, wherein the opposition controlled Congress Party had also cooperated in creating National Judicial Appointments Commission(NJAC), consisting of six persons, Chief Justice of India (CJI), two senior-most judges of the SC, the Law Minister, and two eminent persons to be nominated for only one term of three years, by a committee consisting of the CJI, Prime Minister and the Leader of the Opposition, making the selection of judges of the highest courts in India, broad-based.

Lord Acton had said that ‘Power tends to corrupt; absolute power corrupts absolutely.’ The Indian SC has acquired unto itself the power to select judges of the High Courts and the SC and get them appointed nominally by the President of India. For the success of the democracy and good governance in India, it is an uncontested requirement that there ought to be checks and balances over the power to select and appoint members of the higher judiciary in India.

Towards that end, the NDA II government had taken the first move to have participation of the executive as well as legislative branches, in addition to the judiciary itself. But this move that was passed by the Indian Parliament with the concurrence of sixteen state legislatures was held unconstitutional by the SC. It is an universally acknowledged fact that judges are most capable persons who can interpret law and constitution to arrive at results that they desire. Justice Charles Hughes of the US Supreme Court had said: “We are under the Constitution, but Constitution is what the judges say it is…”

If the SC is permitted to exercise absolute powers over the selection of candidates for highest judicial posts through what they call as ‘Collegium’, it will result into ‘Judicial Dictatorship’; the longer it survives, greater will be its adverse impact on Indian democracy, and the Indian nation will face extreme difficulty to tame that attribute. One cannot escape the example before the mankind that in Pakistan, military has acquired control over the executive and today its control hangs over the executive as a permanent Damocles’ sword! Pakistan’s civil society is aware of the need to send the military back to the barracks: But the question always has been, who will bell the cat?

Indian judiciary has been a significant branch of the Indian political system and has been a saviour of Indian democracy in many instances. Hence, in the larger interest of democracy, the Indian executive and legislature need to make one more attempt to acquire a share in power to select and appoint judges to the higher courts in India, so that the power equilibrium is well maintained by ‘checks and balances’ within the Indian political system.

Prof. Kamath

Prof. Kamath was formerly professor of Politics, UDCP in Bombay University. Currently, he is the Chairman & Director, VPM’s Centre for International Studies (Regd.), affiliated to Mumbai University. He taught Indian Constitution and Politics while in SIES College (prior to joining the University), and for a while in the University as well.