Self-perpetuating judiciary

BRP Bhaskar
Gulf Today

The Supreme Court last week opened the door a wee bit to make known to the public how judges are appointed and transferred but the basic weakness of the process remains unaddressed.

The Constitution which came into force in 1950 empowered the President to appoint the Chief Justices and judges of the superior courts after consultations with such judges as he may deem necessary. Since he is required to act on the advice of the Council of Ministers, the Executive had primacy in the process.

In 1982, the Supreme Court ruled that the recommendation of the Chief Justice of India to the President will have primacy but conceded it could be refused for “cogent reasons”.

Through a 1993 judgment it brought into being institutions called collegiums of judges, comprising the Chief Justice and the seniormost judges, to formulate recommendations with regard to appointments and transfers of judges.

In 1998 AB Vajpayee’s government, through a presidential reference, sought reconsideration of the matter by the court. If it expected the court to moderate its position, that didn’t happen.

The three Court decisions upset the constitutional system of mutual checks and balances and made India’s Judiciary the only one in the world with the authority to choose its personnel. The Executive’s role in the appointment of judges was reduced to that of a postman through whom the CJI conveyed the collegium’s decisions to the President.

The changes came about when the Executive was patently weak.

The issue was debated in public forums and a political consensus emerged over the creation of a National Judicial Appointments Commission in which both the Executive and Judiciary will be represented. The Manmohan Singh government drafted a bill to set up the NJAC but was voted out before it could be taken up in Parliament.

Within three months of assumption of office Prime Minister Narendra Modi pushed through both houses of Parliament a constitutional amendment as well as a regular law. They provided for a six-member NJAC, comprising the CJI and his two seniormost colleagues, the Union Law Minister and two eminent persons to be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition.

Although the Judiciary had an edge over the Executive in the NJAC the CJI blocked its formation by declining to serve on it as also to join the PM and the Opposition leader in the selection of its two independent members. A five-judge bench presided over by the CJI struck down the new enactments as unconstitutional and restored the collegium system.

It soon came to light that the collegium was not working the way it was supposed to work. Justice J Chelameswar, a member of the Supreme Court collegium, said successive CJIs had treated collegium members as supplicants and judges had been selected on personal requests of collegium members. He refused to attend collegium meetings and limited his participation in the process of selection of judges to submitting written comments on circulated minutes of its meetings.

Fresh questions about the working of the collegium arose last month when High Court judge Jayant Patel resigned after he was transferred twice, denying him the opportunity of becoming the Chief Justice. While at the Gujarat High Court he had ordered the Central Bureau of Investigation to probe the encounter killing of a teenage girl Ishrat Jahan and three others.

It was against this background that the collegium headed by Dipak Misra, who became the CJI last August, decided to go public with its decisions. Accordingly a statement was uploaded on the court’s website outlining the reasons why the collegium rejected three names and deferred decision on one while selecting six new judges for the Madras High Court.

The post indicated that there were adverse Intelligence Bureau reports on the professional and personal image of two candidates and that the third was facing an inquiry. All three are members of the subordinate judiciary and the published information raises the question whether they are fit to hold their present jobs. It is not known if those rejected on the basis of intelligence reports were given the opportunity to counter them.

The legal fraternity welcomed the development but some of them felt it did not go far enough. “What is the transparency here?” asked former Law Commission Chairman Justice AP Shah. He wanted the names of prospective judges to be revealed before the collegium took decisions.

The collegium system suffers from weaknesses which cosmetic measures cannot cure. If it is not democratic for a bunch of ministers or parliamentarians to pick the next lot to be entrusted with their responsibilities, how can it be democratic for a bunch of judges to do so? A closed system cannot ensure diversity and democratic accountability. --Gulf Today, Sharjah, October 10, 2017.

Ending judicial self-propagation

BRP Bhaskar

Gulf Today

India has the dubious distinction of being the only country where judges appoint judges. This was not what the Constitution provided for. The Supreme Court converted the higher judiciary into a self-propagating entity, exercising its right to interpret the Constitution.

The Constitution envisaged a system of mutual checks and balances to keep the Executive, the Legislature and the Judiciary on the right path. It vested the power to appoint judges of the Supreme Court and the High Court in the President in consultation with the Chief Justice concerned. Since the President acts on the advice of the Council of Ministers, the Prime Minister’s was the last word.

The Supreme Court reordered things through three judgments, delivered between 1981 and 1998. It whittled down the Executive’s role in the appointment and transfer of judges and made the Chief Justice’s the last word. The act of aggrandisement did not provoke much criticism because few believed the government’s intentions were pure.

Judicial inroads into the realms of the Legislature and the Executive began when they became weak after the death of Prime Minister Jawaharlal Nehru. In the first post-Nehru election in 1967, the Congress retained power but it lacked the two-thirds majority in the Lok Sabha required to pass a constitutional amendment. That year, in the Golaknath case, the Supreme Court ruled that Parliament did not have the power to amend the fundamental rights chapter of the Constitution.

In several previous judgements the Court had held that Parliament had unfettered power to amend the Constitution. After leading the Congress to a resounding victory in the 1971 elections, Prime Minister Indira Gandhi amended the Constitution to reassert Parliament’s right which had been extinguished by the court.

The Judiciary now moved one step backward. In the Kesavananda Bharathi case, the Supreme Court conceded that Parliament could amend all parts of the Constitution, including the fundamental rights chapter. At the same time, by a 7-6 majority it imposed a restriction: the amendment should not alter the basic character or essential features of the Constitution. These features were not identified or defined.

In both the cases the court relied on borrowed concepts. To save previous amendments in the fundamental rights chapter which the court had upheld, the Golaknath judgement applied the US principle of prospective overruling. The basic character concept was taken from a Pakistani judgement. While the Pakistani court invented it to limit the power exercisable by a military dictator the Indian court applied it to restrict the authority of democratically elected governments.

When the time came to appoint a new Chief Justice, Indira Gandhi overlooked the seniority of three judges who were part of the majority in the Kesavananda Bharati case. This was widely seen as an attempt to discipline the judiciary. The superseded judges resigned.

In the last 65 years Parliament has amended the Constitution about 100 times. The number of times the Judiciary has amended it through the process of interpretation, as in the Golaknath and Kesavanand Bharati judgements, remains untabulated. The most daring of the judicial amendments came through the verdict in the Judges cases.

The first of these arose after Indira Gandhi returned to power following the collapse of the Janata government. In it, the Court conceded primacy to the Executive in processes relating to appointment and transfer of judges. In the second case, which came up when PV Narasimha Rao’s minority government was buying up majority support, the Court granted primacy to the Chief Justice of India but laid down that he should act in consultation with a collegium comprising his two seniormost colleagues.

The Court’s third verdict was the opinion it rendered in a Presidential reference in 1998, when AB Vajpayee was heading a coalition of more than a score of parties. While asserting the CJI’s primacy, it raised the strength of the judges’ collegium from two to four.   

Last August the Narendra Modi government pushed through the two houses of Parliament a bill to scrap the collegium and set up a National Judicial Appointments Commission with the CJI as the chairman and two seniormost judges of the Supreme Court, the Law Minister and two eminent persons, who will be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition, as members.

The new system will end judicial self-propagation and provide the Judiciary and the Executive equal voice in the appointment of judges. Its constitutionality has been challenged in the Supreme Court. Hopefully, the Court will realise that the collegium system which it created is wholly undemocratic and the time has come to do away with it. -- Gulf Today, April 28, 2015.