Need for reform

A formal procedural framework to select judges, guaranteeing openness and transparency, is necessary to counter the trust deficit affecting the collegium system.

Outside the Supreme Court after a five-judge bench held the 99th Amendment Act and the NJAC Act, 2014 "unconstitutional and void".

Neither the Constitution nor any statute provides for an instrument like the Memorandum of Procedure (MoP) for judicial appointments in India. Like the collegium, the MoP is also a judicial invention imposed on the executive by the judgment in the Second Judges’ case (1993). Last year, the Supreme Court struck down the statute for the National Judicial Appointments Commission (NJAC) and the 99th Constitutional Amendment by its 1st NJAC judgment of October 16, 2015, which resuscitated the collegium. The most unfortunate part of the judgment was that it had the effect of deluding the people, by its pomposity, about “glasnost” and “perestroika” in the judiciary. Through a tumultuous judicial call, the entire nation was requested to put forward suggestions for reforms. The public in the republic responded. The suggestions ran over 11,500 pages, as acknowledged later by the Supreme Court in its 2nd NJAC judgment of December 16, 2015.

It was this judgment that again asked the Centre to come up with a new MoP. Practically, the entire rhetoric on reforms in the 1st NJAC judgment stood reduced to this MoP. Recently, the Centre, by way of the revised MoP, sought a system which it claimed would be relatively translucent and adorable. The Centre’s plea for some limited privileges for itself, the Attorney General, and the Advocate General in the matter of selection to the higher judiciary was turned down by the collegium (“SC sends back draft on judges’ appointment”, The Hindu , May 5, 2016).The MoP arms the government with the power to reject a nomination citing the “national interest”. The Centre is not bound to reconsider a recommendation once rejected. The collegium, finding such clauses “undesirable”, returned the MoP to the government (“High Court faces shortage of 458 judges, say latest data”, The Hindu , June 3, 2016). The number of vacancies of High Court judges has grown to 470 ( The Hindu , July 5, 2016).

The revised MoP, which is substantially a reiteration of the earlier one, was again turned down by the collegium, according to the news reports of July 7, 2016. A uniform complaint redress mechanism against the judges, substituting the earlier “in-house mechanism”, was also sought by the government, according to the reports. The Law Minister responded to the rejection in a conciliatory tone, clarifying that “the government is willing to work in harmony with the judiciary” (NDTV, July 7, 2016). This means that no fundamental change is going to be effected in the process or procedure. The opaque system is to stay on, unswayed by possible cosmetic changes. This, in turn, would invigorate judicial supremacy, which T.T. Krishnamachari famously described as “ Imperium in Imperio ”.

No democracy can dispense with a formal system and a clear procedure for judicial appointments, which should be predetermined and structurally guaranteed. We have, in effect, neither a constitutional provision nor any legislation on the subject. In a consecutive adjudicative tragedy, Articles 124 and 217 of the Constitution, dealing with the appointment of judges to the Supreme Court and the High Courts, were practically done away with, as per the Second and Third Judges’ cases of 1993 and 1998 respectively, which installed the system of the collegium. Last year’s NJAC verdicts just repeated, extended and expanded the tragedy. They had an exacerbating effect on our polity. The Constitution was practically rewritten, though the authority to do so is vested only with Parliament and not with the court. The National Lawyers Campaign for Judicial Transparency and Reforms, through its letter dated November 2, 2015, bemoaned: “The judgment of the Supreme Court in the NJAC case, running into more than 1,000 pages, means that what legislative or administrative policy the country should adopt could not be decided by the people through their elected representatives.”

In the 2nd NJAC verdict, the court noted that the “practice (of MoP) had been consistently adopted” following the Second Judges’ case (1993). The court asked the Centre to finalise the existing MoP “by supplementing it in consultation with the Chief Justice of India”. It was further held that “the Chief Justice of India will take a decision based on the unanimous view of the collegium”. Though it was opined that factors such as (i) eligibility criteria; (ii) transparency in the appointment process; (iii) secretariat; and (iv) complaint redress mechanism are to be considered, there was no “wholesale change” in the matter, to use the words of Justice Jagdish Singh Khehar. The “trust deficit” that “has affected the credibility of the collegium system”, as lamented by Justice Kurian Joseph, remained unaddressed in the verdict.

The primacy of the executive or the judiciary has been the moot question whenever the issue was adjudicated or legislated in India. Both the executive and the judiciary wanted to have the final say and this fissure is one of the greatest misfortunes in India’s constitutional history. A procedural framework for judicial selection is quite feasible and possible, provided there is a will to formalise the method and to institutionalise it by way of an independent commission that guarantees objectivity and openness. Lobbying is an unhealthy means for selecting the umpires of democracy.

Though the Supreme Court emphasised reform in the 1st NJAC judgment, it took a highly undemocratic position in the 2nd NJAC judgment. The plea for eligibility (as different from suitability) got reduced to the prescription of a minimum age and such other “innocuous” aspects since it appeared that the collegium did not favour any radical shift. The secretariat that the legal fraternity aspired for as a centre for judicious selection became a storehouse of data on those who were fortunate enough to be close to the power centre.

Unfair system

In such a system, denial of opportunity to ordinary hands would be ensured and secrecy preserved as a “great Indian judicial value”. The “kin syndrome”, a term coined by Justice V.R. Krishna Iyer, would hold the field with judges choosing those lawyers who are in their own image while those from “non-traditional backgrounds” would be practically fenced out. Thus, the collegium after the NJAC verdicts is in no way different from the one that has functioned until now. In my view, it is fallacious to think about reforms either by way of the collegium or by way of the MoP, both of which are ostensibly unconstitutional.

The NJAC judgments empirically demonstrate that judicial reforms do not happen from within. They also show that any move for executive predominance would be curtailed in the review jurisdiction, relying on the doctrine of “judicial independence” as interpreted by the judiciary itself, which would project itself as the “‘basic structure” of the Constitution. The basic structure doctrine, evolved in Kesavananda Bharati (1973), is, again, the court’s own creation, used to preserve another creation, namely, the collegium.

Global trends

According to the Commonwealth Latimer House Principles, judicial appointments need to be made by following “clearly defined criteria and by a publicly declared process” (Principle No. IV (a)). Relying on the same, Jan van Zyl Smit says: “The criteria for judicial office will usually be determined to a greater or lesser extent by the Constitution or by statute, although there may be some scope for commissioners to bring to bear their experience and expertise if the Commission is authorised to elaborate the criteria for particular judicial posts, or develop guidelines or tools for use when evaluating individual candidates” (British Institute of International and Comparative Law, 2015).

The MoP in India and its latest additions are apparently antithetical to the practice elsewhere in the Commonwealth, which Smit does not analyse. He says that he is “surprised and fascinated” by the 1st NJAC judgment (“Judicial Appointments in the Commonwealth: Is India bucking the trend?”, U.K. Constitutional Law Association, 2016). As acknowledged by him, when “more than 80 per cent of the Independent Commonwealth jurisdictions have a Commission, established by law or under the Constitution”, any euphoria, or even a gesture of optimism, based on India’s collegium is unfounded, given the flexible and uncertain characteristics of the MoP. It is doubtful whether the MoP is a “law” even for the limited purpose of Article 13 of the Constitution. Thus, the collegium stays far away from the “Second Wave Commissions” found elsewhere, as noted by Smit. When the process of selection and appointment does not provide for “advertisement and open applications”, and since the process remains “confidential”, as held by the Supreme Court, Smit’s hope that the “Court’s recommendations would constitute valuable improvements” would remain surreal.

Practising advocates continue to form the principal source of judicial appointments in India. A judge is essentially a public officer. James E. Moliterno reiterates his position by indicating that lawyers who are “client centred” “may have an important disadvantage in the role of public official” ( Fordham Law Review , Volume 77, Issue 4). Daniel Markovits, while explaining the structural character of a lawyer’s function, puts the issue in perspective: “ [T]he effort to connect partisan lawyering to the pursuit of justice” is “both theoretically and practically unsatisfying” ( Three Issues in Legal Ethics , Daniel Markovits, Yale Law School, 2010). Article 124(3) (c) of the Indian Constitution says about appointing “a distinguished jurist” as a judge of the Supreme Court, which, however, never happened in the country. A broader platform for judicial appointments should resort to a larger spectrum of academics, jurists, researchers, and also intellectuals with a legal background.

In a recent study, the authors Graham Gee and Kate Malleson, while praising the “robust processes” in the United Kingdom that have “identified suitably qualified candidates of good character”, worried about “the slow progress in increasing judicial diversity” (U.K. Constitutional Law Blog, May 6, 2014). Their plea is to “remove barriers that might prevent non-conventional candidates from being called for interview”.

The pre-selection debate in the United States Senate on judicial candidates is another captivating idea. South Africa and Kenya have also opted for open interviews as part of the selection process. Malaysia and Nigeria have gone for sizable commissions. In Bulgaria, according to Peter Roudik, the National Assembly has adopted a law to amend the Constitution in order to establish a Supreme Judicial Council for selection to the highest national courts ( Global Legal Monitor , December 30, 2015). The U.K. has an evocative institutional model, a 105-member secretariat, to ensure objectivity and transparency in the selection process. There were concerns, however, when the staff strength of the secretariat was reduced later because of budgetary constraints.

The details of global trends were placed before the Supreme Court after the 1st NJAC judgment through detailed written submissions. But the plea for radical reforms was rejected by the apex court, which did not want to do away with the collegium system. The court, after noting that it had a “challenging responsibility to embark and reflect” on the suggestions, did not, however, synthesise them appropriately or prescribe any fundamental change.

Simon Evans and John Williams recommend “a modified version” of the U.K. system even for Australia, where the opportunity to apply for judicial posts is already recognised. According to them, the U.K. model “is a cautious and incremental development that does not break with Australia’s legal traditions” (“Appointing Australian Judges: A New Model”, 2008). India needs to follow suit. The NJAC judgments do not foreclose further legislative imagination, as commonly perceived. A valid law on the subject is worth attempting, provided it satisfies the characteristics of curative and competent legislation. The legislative potential in such situations was underlined by the apex court in Indira Nehru Gandhi (1975) and Hari Singh (1972). The Centre has to assiduously try a new law on the subject for revamping the system of judicial appointments and in that process the executive should forsake its “political” interests. It should also defend the democratic cause staunchly when subjected to judicial scrutiny in future.

Kaleeswaram Raj is a lawyer practising in the Supreme Court of India and the High Court of Kerala. He has authored the book The Spirit of Law (2012). Email:kaleeswaramraj@gmail.com.