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Ad-hocism in appointing judges of higher courts must stop

Published : Jan 26, 2023 10:35 IST

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Ad-hocism in appointing judges of higher courts must stop

Union Law Minister Kiren Rijiju.

Union Law Minister Kiren Rijiju. | Photo Credit: PTI

The government’s attack may be self-serving, but revamp of the collegium system is urgently needed.

Law Minister Kiren Rijiju fired another salvo recently by writing a letter to the Chief Justice of India “suggesting the inclusion of a government nominee in the decision-making process for shortlisting of judges” and asserting the “need for representation on a search-cum-evaluation committee (SEC) for appointments of judges to the Supreme Court”. This letter was more measured than his earlier outcry against the collegium system of appointing judges to the higher courts. To this proposition too, lawyer Indira Jaising responded that it would be like letting “a fox in the henhouse”. Law Minister Kiren Rijiju fired another salvo recently by writing a letter to the Chief Justice of India “suggesting the inclusion of a government nominee in the decision-making process for shortlisting of judges” and asserting the “need for representation on a search-cum-evaluation committee (SEC) for appointments of judges to the Supreme Court”. This letter was more measured than his earlier outcry against the collegium system of appointing judges to the higher courts.

The BJP government appears to have put its players on the field to restart the debate over the revival of the National Judicial Appointments Commission (NJAC), which was established by the 99th Constitution Amendment (2014) but was declared unconstitutional by the Supreme Court (2015).

Speaking in the Rajya Sabha last year, Rijiju said that “there was a call from within the judiciary and parliamentarians to change the collegium system for appointment of judges”. He said the government had submitted to the Supreme Court a draft memorandum of procedure for bringing transparency and accountability to the system, which was pending. Additionally, he said that the government should carry out its duty diligently in consultation with the Supreme Court. “If the government considers a particular person is not fit to be a Supreme Court or High Court judge, how can we be forced to appoint that person…. My words should not be construed as challenge to the judiciary. If we are not crossing the line, then the others should also not come in our way.”

The Minister brought up this debate again this year while responding to a question in Parliament on the delay in the appointment of judges. Rijiju said it was worrying that more than five crore cases were pending and said the primary reason for it was the lack of judges. The government, he said, had taken many steps to reduce pendency, but it had only a limited role in filling vacancies.

Raising the ante

Next, Vice President Jagdeep Dhankhar picked up the baton and said there was not a whisper in Parliament after the Supreme Court struck down the NJAC Act and that it was a serious issue. He said a law passed by Parliament, which reflects the will of the people, had been “undone” by the Supreme Court and “the world does not know of any such instance”.

Dhankhar raised this issue in public while addressing the 83rd All India Presiding Officers’ Conference in Jaipur. He said: “The power of the Parliament to amend the Constitution and deal with legislations is not subject to any other authority, and all constitutional institutions—the judiciary, the executive and the legislature—are required to confine to their respective domains and conform to the highest standard of propriety and decorum.”

The Congress party took an opportunistic stand, with its spokesperson saying: “The VP’s assaults. The Law Minister’s attacks. All this is orchestrated confrontation with the judiciary to intimidate and thereafter capture it totally. The collegium needs reform. But what this government wants is complete subservience. Its remedy is a poison pill for the judiciary.”

Among the several write-ups on this issue, two judges, Justice Madan B. Lokur (who was part of the Constitution Bench that declared the 99th Amendment invalid) and Justice A.P. Shah (former Chief Justice of Madras and Delhi High Courts), wrote pieces denouncing the BJP government’s attempts to meddle in the collegium system of appointment. Justice Lokur asked: “Would you like to play in a match in which the umpire or referee is committed to one of the teams or one of the players?” He added: “Recent developments suggest that the government is inching towards its way. My appeal: We have to stop the juggernaut and stop it now.”

Justice Shah wrote: “As a long-standing critic of the collegium, I might have joined a chorus that called out the problems with judicial appointments, but this onslaught from the government has been particularly disturbing and wholly unwarranted. The Supreme Court, conceived as the custodian of the Constitution and the final arbiter of the law, has had an inconsistent history. The ghosts of  ADM Jabalpur continue to haunt to this day.”

As much as these two learned judges have defended the collegium system, the question is whether such an assumed power of appointment of the judges of the higher judiciary is justiciable in the absence of any constitutional provision in its favour and whether the system has worked successfully in the past three decades.

Eminent Lawyer Fali Nariman commented that “the collegium system has a lot of drawbacks, there is no doubt about that... but I think the lesser evil is the collegium system.”
Eminent Lawyer Fali Nariman commented that “the collegium system has a lot of drawbacks, there is no doubt about that... but I think the lesser evil is the collegium system.” | Photo Credit: Shanker Chakravarty

Former Attorney General Fali Nariman commented that “the collegium system has a lot of drawbacks, there is no doubt about that... but I think the lesser evil is the collegium system. I am not very happy with it, but it’s like democracy—the best of all the worst systems.” It is shocking that the appointment of judges to the higher judiciary should be discussed at that level.

All that Article 124(2) of the Constitution originally stated was that “every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years”.

This system of appointment produced judges for nearly two decades. Only in the early 1970s did a tug of war emerge between the executive and the judiciary. The climax happened during Indira Gandhi’s tenure when the rule promoting the senior-most judges of the Supreme Court as the Chief Justice of India was done away with. Three senior judges were superseded and Justice A.N. Ray was appointed Chief Justice of India in 1973. The three judges resigned and a debate ensued on the so-called move to bring in “committed judges” to the judiciary and the blatant executive interference in the matter of appointments.

One cannot forget that eminent judges such as V.R. Krishna Iyer, O. Chinna Reddy, and several others were appointed when the initial system was prevalent. The judiciary crumbled not because of the appointment system but because of a lack of calibre to absorb constitutional morality and withstand political pressures. This was seen during the Emergency declared by Indira Gandhi (1975-77), when even access to judicial redress was denied by the court (the ADM Jabalpur case).

It was as a backlash to this that the judges evolved a new method of appointment, virtually staging a constitutional coup and taking over the power of appointment. The rulings in the Second Judges Case (1993) by a nine-judge bench and the Third Judges Case (1998), again by another nine-judge bench, put in place the present system of appointment, making India the first democracy to have judges themselves appoint their brother judges even though the written Constitution does not provide for any such mechanism.

Flawed system

Almost every judge who has written a biography in this period has criticised the method of appointment. It is unnecessary to refer to those criticisms. The first question is how, in a country like ours when there are more than 1,000 High Court judges and 34 Supreme Court judges, vacancies can be filled by an ad-hoc mechanism whose composition keeps changing. Worse, the recommendations are kept secret. Allegations of favouritism and nepotism are levelled against the system. Everyone clamoured for a change in the system, but no one was ready with a new model.

The BJP government then brought in the 99th Amendment and introduced Article 124A, which mandated that appointments to the higher judiciary be made through the NJAC. The Commission was required to have six members, including the Chief Justice of India, two judges next in seniority, the Law Minister, and two eminent persons nominated by a committee comprising the Prime Minister, the CJI, and the Leader of the Opposition. One of these would be from among the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minority, or woman categories.

This was challenged, and a Constitution Bench struck it down by a 4:1 majority. The lead judgment by Chief Justice J.S. Khehar said that the committee did not provide adequate representation to the judicial component and it impinged upon “the principles of independence of judiciary as well as separation of powers”. It also said that it violated the Basic Structure of the Constitution.

In his dissenting opinion, Justice Jasti Chelameswar tried to defend the amendment. His minority opinion remains largely unnoticed. He pointed out that the cases of Justice P.D. Dinakaran (2011) and Shanti Bhushan (2009) justified the participation of members of civil society in the process.

The dissent

Justice Chelameswar said that “it is a matter of public record that in the last 20 years, after the advent of the collegium system, a number of recommendations made by the Collegia of the High Courts came to be rejected by the Collegium of the Supreme Court. There are also cases where the Collegium of this Court quickly retracted its steps having rejected the recommendations of a particular name made by the High Court Collegium, giving scope for a great deal of speculation as to the factors which must have weighed with the collegium to make such a quick volte-face. Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the Judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or is good for the people of this country.”

Coming from a respected and former senior judge of the Supreme Court, it calls for a rethinking of the collegium system of appointment and the establishment of a satisfactory and permanent alternative system, especially because it deals with the appointments of 1,000-odd High Court judges and 30-odd Supreme Court judges who, once appointed, can never be removed from office except by impeachment in Parliament.

Ad-hocism in appointment matters of the higher judiciary cannot continue.

Justice K. Chandru is a former judge of the Madras High Court.

(This story was published in the print edition of Frontline magazine dated Feb 10, 2023.)

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