Open Access Research Article
JUDICIAL INDEPENDENCE IN JUDICIAL APPOINTMENTS? By.: Prof. Dr. Mahavir Singh Kalon
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JUDICIAL
INDEPENDENCE IN JUDICIAL APPOINTMENTS?
Authored By.: Prof. Dr. Mahavir Singh
Kalon
Designation: Professor-in-charge, Law
Centre II
Institution: University of Delhi,
Delhi
E-mail id: drmahavirsinghkalon@gmail.com
Abstract
One
of the most sought after issue of debate in judicial cosmos is appointment of
judges in higher judiciary. Owing to its prominence and value attached to the
process it is obvious that one will go down in detail of the process adopted.
The most closely attached issue of concern is its effect on judicial
independence. The judiciary has been time and again emphasizing that the
judicial independence will be affected adversely, if the executive is allowed
any say in the process of appointments to higher judiciary i.e. to the courts
of record. For once, we can agree that this hypothesis might be true and
executive’s say is most likely to negatively affect the judicial independence.
This has been the heart of the argument against the change proposed by
legislature in form of N.J.A.C. But the problem is that, is the present system
of appointment, which ensures the so called “no say” of executive in process of
judicial appointments, is truly independent in terms of the role of executive
in appointment process?
The
thing is that the executive plays a vital role, both directly and indirectly in
the present appointment regime. So this argument that executive having a part
to play in judicial appointments will jeopardize the judicial independence is
hard to stand in the face of reality. It is having a crucial role to play in
the present regime (both formally and informally). Then what is the problem in
legalizing the entire process by converting this informal role into a straight
jacketed formula which will not only add transparency and accountability to the
appointments and at the same time ensure that judiciary is independent by
avoiding any space for arm-twisting of the judiciary by executive? The problem
with present process is not only limited to the informal role of executive or
the other misgivings of the process but also the role of unimportant,
irrelevant and even ridiculous undertakings which influences the final
judgement. This research work tends to support the case of the N.J.A.C. in
light of short comings of collegium system.
Keywords:
Collegium system, Judicial independence, Judicial accountability, National
Judicial Appointment Commission.
Introduction:
There has been some serious
criticism of the judiciary at the hands of critics on the lines that judges are
themselves appointing judges. Former C.J.I. at a public vent brushed aside such
criticism describing them as just a myth which widely propagated as well.
"It is nowadays fashionable
to reiterate phrases such as, "judges are themselves appointing
judges". I consider this to be one of the widely propagated myths"[1],former C.J.I. Ramana said.
Speaking at the fifth late
Sri Lavu Venkateswarlu Endowment Lecture, the CJI added :
"The fact is the
Judiciary is merely one of the many players involved in the process. Many
authorities are involved including the Union Law Ministry, State Governments,
Governor, High Court Collegia, Intelligence Bureau, and lastly, the topmost
executive, who all are designated to examine the suitability of a
candidate".
The Chief Justice of India
said he was "sad to note that the well-informed also propagate the
aforesaid notion". "After all, this narrative suits certain
sections", he said.
It is worth mentioning that
it is a hotly debated topic and point of interest of many to discuss and argue
the issue of appointment of judges. Time and again the arguments are raised by
either side and same demands exploring the point of equilibrium to say the
least. The former CJI’s point of view is relevant in this regard. “The
appointment of judges is a continuous process. After being elevated as the
Chief Justice of India, I have focussed on increasing judicial appointments. I
appreciate the Government's effort in appointing several judges in recent
times.
However, some
recommendations made by High Courts are yet to be transmitted to the Supreme
Court by the Union Law Ministry. It is expected that the Government needs to
strictly adhere to the timelines laid down in the Malik Mazhar[2]
Case.High Courts must also accelerate the process of making recommendations to
fill vacancies. I am constantly persuading Chief Justices of various High
Courts to take up this issue. My desire is to witness a near-zero vacancy", he said.
It was also made clear by
the Hon’ble C.J.I. (retired) "It is a well-known fact that a popular
majority is not a defence for arbitrary actions taken by a Government. Every
action is mandatorily required to comply with the Constitution. If the
judiciary does not have the power of judicial review, then the functioning of
democracy in this country would be unthinkable", he said.
“The
concept of separation of powers cannot be utilised to restrict the scope of
judicial review. This concept only protects bona fide legitimate actions. It is
required that the legislative and executive wings recognise their limits under
the Constitution to ensure the smooth working of the democracy.
The
power of judicial review is often sought to be branded as Judicial overreach.
Such generalisations are misguided. The Constitution created three co-equal
organs, namely the legislature, the executive and the judiciary. It is in this
context that the judiciary has been given the role of reviewing the legality of
steps taken by the other two organs", he added.
Besides many things elaborated on by the
former CJI, a pivotal point of discussion was judicial vacancy and the need to
fill it under the present appointment regime. The opinions of former chief
justice of India about the existing system of appointment, highlights the
direct role of executive in appointments. Besides this there are scattered
evidences of the indirect role of executive in the present system of
appointments where judiciary is influenced by the executive to recommend the
names of its candidates. Moreover there are innumerable instances where there
have been ridiculous considerations taken into account in selecting the judges.
The book by Abhinav Chandrachud “Supreme Whispers”[3]
is filled with glaring examples highlighting such considerations and how they
have been influencing the appointment hitherto.
He further said that, “A Judges should
be of stem stuff and tough fibre, unbending before power, economic or
political, and they must uphold the core principle of the rule of law which
says, Be you ever so high, the law is above you.”
Transparency
of the mode and methodology of appointment of judges lies at the core of the
principles judiciary cherishes to protect. The method of appointment that
brings arbitrariness in the selection process is something which needs to
prevented at all costs. The entire selection process must be guided by clearly
laid down criteria that which eliminates any form of arbitrariness. Though
discretion is necessary but whether it can be limited or not is a question to
ponder upon in light of misgivings of the process.[4]
The judiciary
plays such a crucial role that it is necessary that it governed by same set of
norms that are expected of other organs of government. This is isolation and
sense of being above than rest of the society is something that needs to be
checked as it mutually disadvantageous to both society and judiciary. After all
no matter how high a post they hold they are also humans with all the
shortcomings and are liable to err.
The
appointment regime of judges in U.S. is governed by executive subject to
approval by legislature which also is dominated by executive and in the same
way the process is controlled by executive in U.K. which is supported by a
Judicial Appointment Commission to do the required. In sharp contrast in India
it is dominated by judiciary itself with the process being more subjective then
objective. This will remain to be so until constitution is amended and the
amendment passes the test of judicial review.[5]
THE ORIGINAL INTENT
The Constitutional assembly was succinct and
to the point in adopting and implementing an appointment process for judiciary
that is just, fair, reasonable and more importantly able to deliver. The
process that is able to deliver is one which appoint judges who are able to
stand against the might of executive and pronounce judgments impartially.
In Nehru’s words, judge should be of the “highest
integrity” and who would be “[persons] who can stand up against the
executive government and whoever might come in their way.”[6]
The constituent assembly also agreed that, “judges should be independent and
not insulated.”
The constituent assembly was clear in the
idea of rejecting upper hand to judiciary in appointment process as it firmly
rejected the use of the word concurrence in place of consultation. Explaining
the rationale Dr. Ambedkar said that–
“It would be dangerous to leave the
appointments to be made by the President, without any kind of reservation or
limitation, that is to say merely on the advice of the executive of the day.
Similarly, it seems to me that to make every appointment which the executive
wishes to make subject to the concurrence of the Legislature is also not a very
suitable position… With regard to the questions of the concurrence of the Chief
Justice , it seems to me that those who advocate that proposition seem to rely
implicitly both on the impartiality of the Chief Justice and the soundness of
his judgment. I personally feel no doubt that the Chief Justice is a very
eminent person. But after all that, the Chief Justice is a man with all the
failings and all the sentiments and all the prejudices which we as common
people have; and I think, to allow the Chief Justice practically a veto upon
the appointment of judges is really to transfer the authority to the Chief
Justice which we are not prepared to vest in the President or the Government of
the day. I therefore think that is also a dangerous proposition.”
These discussions led to adoption of an
appointment regime where appointment was supposed to be made by the executive
but only after consulting the judiciary speaking through Chief Justice of India
and such other judges of Supreme Court as the President deems fit, in form of Articles
124 and 217 of the Constitution of India. The appointment process in which top
constitutional functionaries had crucial role to play was deemed to be
sufficient enough to ensure that the best talent finds its way to the top of
judicial hierarchy.
THE
CONSTITUTIONAL PRACTICE AND ADJUDICATION
The appointment of judges to the apex court
functioned more closely and collaboratively than it did in 70’s. This is
evident from the fact that judges were appointed always after consultation with
the judiciary and it will not be wrong to conclude that there was concurrence
of Chief Justice of India to all the appointments made by the executive during
the initial years after independence.
After change in person at helm of executive
the things begin to change quickly. There were many confrontation and way too
many incursions in the domain of other organ of government. This led the
judiciary to take a stand and virtually take away the powers into its own hands
to usurp the control over appointment process in 2ndjudges case.[7]
The Disintegration of an Independent Judiciary
There four crucial turning points which led
us to where we are today. The crucial turning points were 4 landmark judgments.
The first judgment was the Sri SankariPrasad Singh Deo[8]
case of 1951. Then came the Sajjan Singh[9]case
of 1965 were the courts accepted the power of legislature to amend the
Constitution but this was reverted back in Golaknath[10]
case where a 11 judge bench ruled that the legislature does not have power to
amend the chapter on fundamental rights of the Constitution of India. This lead
to rumours that judiciary will be packed with judges that will over rule the
verdict of Supreme Court in Golaknath case. Then came the Kesavananda Bharti[11]case
were the apex Court laid down the basic structure doctrine by a slim majority
of 7-6 and held that parliament does not have power amend the basic structure
of the Indian Constitution. On the immediate next day the supersession took
place and Justice A.N. Ray superseded 3 Supreme Court Judges to be C.J.I.
The then Law Minsiter of Union explained that
the political alignment of the candidate with ethos and motto of the
Constitution along with spirit of social justice of the Constitution needs to
be assessed to appoint a person as Supreme Court Judge. This was nothing but
the attempt to appoint the person who could toe the line of executive.
Then came the Habeas Corpus case[12]
were the sole dissenting judge Justice
H.R. Khanna was punished and superseded by a Junior Judge Justice M.H. Beg.
This paved the way to 3 judges case were
ultimately the power to appoint was led in the hands of judiciary itself.
The First Judge’s Case
In 1989 a 7 judge bench of the Hon’ble
Supreme Court in S.P. Gupta v. Union of India[13],
sat and decided that the Union executive can over-rule the views rendered by
the Collegium. This caused the opinion that judiciary has surrendered and
started to toe the line of executive.
This opinion changed a few thing permanently.
So much so that an article in India Today in 1989 said,“…..unless the Chief
Justice of a High Court displays a high degree of independence and integrity,
many of the judges end up being appointed because of their political
affiliations.”
This laid the foundation for the second
judge’s case.
The IIndJudge’s Case[14]
Thenine judge bench of Hon’ble Apex Court
came to the conclusion by a majority of 7:2 that executive is bound by the
views of judiciary in matters of appointment. The Hon’ble Apex Court also held
that Collegium consisting of C.J.I and 2 senior most judges has primacy over
decisions pertaining to the appointment of judges. This also came to be heavily
criticized. In words of Justice Krishna Iyer “this judgment is an egregious
fraud on the Constitution”. HM Seervai, the constitutional expert is of the
view that “never has a majority judgment of the Supreme Court reached a
lower level of judicial incompetence.” Some even went on to say that,“fools run where
angels fear to tread.”
The Third Judge’s Case[15]
The Collegium recommended certain names in
1998, to which the executive expressed certain reservation to few names. While
reconsidering the names Collegium laid the ultimatum that either appoint all or
none. This led to the reference sought by President in form of the third
judge’s case.
The system of appointment that was
implemented by this verdict was criticized as it laid no criteria to evaluate
the candidature for the top post, no mechanism, no staff, no institutional
framework for appointments. This was most unique mode of appointment as nowhere
in the world judiciary had such great power as it did in India.
The
National Judicial Appointments Commission
The NJAC was established by the parliament of
India by a unanimous verdict where there were no negative votes and only one
abstention. The idea of Commission for appointment was not new and had been
implemented by many other countries. This was welcomed in light of the
arguments that it will prevent improper politicization of the process, increase
fairness, promote diversity and support faith of masses in the process and
system.
The composition proposed which never saw the
light of day was of 6 members i.e. Chief Justice of India, 2 senior most judge
of Supreme Court, Law Minister, and 2 members of civil society who were to be
appointed by Committee consisting of CJI, P.M. and leader of opposition. But
this was all to be rejected by the NJAC Judgment or the fourth judge’s case.’’
The NJAC judgment
The 99th
constitutitonal amendment was nullified by the Hon’ble Apex Court in NJAC
Judgement or Supreme Court Advocates On Record Association v. Union of India[16]
on the premise that it vitiates the primary structure of the Constitution and
the dissenting Judge Justice Chelameswar (ratio of judgment was 4:1) held that
judicial independence in part of basic structure but there is nothing in NJAC
Act that violates the basic structure of the Constitution.’
THE
NJAC JUDGEMENT AND BEYOND
NJAC and Basic Structure
In the Kesavananda Bharti case the Hon’ble
Apex Court propounded the doctrine of Basic structure whereby, “an amendment or
the law of land violates of basic structure of the Constitution will be
considered ultra vires and thus unconstitutional. The judgment itself laid down
that principles like secular nature of Constitution, republic form of
government, supremacy of Constitution, separation of powers etc.”
The Hon’ble Supreme Court while elaborating
the basic structure doctrine restricted itself to lay the components of basic
structure. Moreover it said that change in a thing does not necessarily mean destruction
of basic structure and whether a basic structure is destroyed or not is a
matter of substance and not of form. This means that the change in a component
does not necessarily mean that basic structure is destroyed. Whereas on the
contrary the Hon’ble Supreme Court in NJAC case raised a part of a feature of
basic structure to the status of basic structure. Furthermore it held that any
change in component of feature of basic structure would mean destruction of
basic structure.
Justice Chelameswar held that the Articles
124 and 217 deal with a feature of independence of judiciary. He also said that
there are many safeguards in place in our Constitution which are aimed to
preserve and protect independence of judiciary. Some of the prominent
safeguards in the Constitution aimed to the requisite can named as follows:
“….Certainty of tenure, protection from
removal from office except by a stringent process in the cases of Judges found
unfit to continue as members of the judiciary, protection of salaries and other
privileges from interference by the executive and the legislature, immunity
from scrutiny either by the Executive or the Legislature of the conduct of
Judges with respect to the discharge of judicial functions except in cases of
alleged misbehaviour, immunity from civil and criminal liability for acts
committed in discharge of duties, protection against criticism to a great
degree…”[17]
Problematic interpretive process
There has been some harsh criticism of the
interpretative process adopted by the Hon’ble Apex Court in NJAC Judgment. To
name a few prominent ones would surely include the rationale accorded by
majority judges in the NJAC judgment. An argument was raised by the petitioner in
the NJAC case that the IInd judges case laid down that primacy of
judiciary in appointment process is indispensible for judicial independence (basic
feature of Constitution). Thus cannot be destroyed by the Parliament. They
further argued that abolishing the Collegium system of appointment the
parliament is doing something which is ultra vires and out of the purview of
the powers of Parliament because abolishing Collegium would mean that it
violated the basic feature of Constitution. This is something which it cannot
do.
The majority judgment agreed with the views
of the petitioners on two grounds. They are, first of all the interpretation of
articles governing judicial appointment to court of record require that primacy
is with judiciary only because otherwise it would mean compromising judicial
independence. Secondly there is a long standing practice in support of primacy
for views of judges in decision of appointments to higher judiciary.
Interpretation as applied by the judiciary in
the matter that the primacy of views of collegium in appointment of judges is a
basic feature is incorrect. The mention of second judges case here is important
because the IInd judges case though interpreted the word ‘consultation’
as ‘concurrence’ but it did not mention that the primacy of judiciary is utmost
necessity for maintaining judicial independence nor it held that judicial
primacy is an indispensable feature of judicial independence. On the contrary
it has been held in NJAC judgment that judicial primacy in appointment process
is a necessary feature of judicial independence therefore it cannot be tampered
with or taken away.
Moreover, drawing an inference that judicial
primacy which is just a component of judicial independenceis itself a basic
feature of constitution is just not right. These are two different things. As
part cannot be whole, as it is just a component of feature of basic structure
and not the basic structure.
Long practice is no justification
The long practice is just to consult the
C.J.I. and not to have concurrence. Moreover, a long practice in itself does
not mean that judicial primacy is part of basic structure because it is only
the judicial independence that is a part of the basic structure. If only long
practice can justify it to be part of basic structure then basic structure
needs to looked back upon as to what it actually is?
Incorrect reliance on Ambedkar’s views
The interpretation of the judgment in NJAC case relies heavily on the
interpretation given by Dr. Ambedkar. This is also not entirely correct. Dr.
Ambedkar specifically stated that the judiciary alone cannot be trusted with
the power over appointment. Whereas the constituent assembly aimed for the
consultation to provide a balanced approach and each organ will act as a check
on the other organ. The participation of both organs was considered necessary
to ensure that the t will prevail in the process. The constituent assembly nowhere
conferred the power on the judiciary alone nor conferred the primacy to the judiciary.
Primacy in judicial appointments
The judiciary should have primacy in the
appointment process is the only way to ensure judicial independence should be
given reasons for. The judgment which does not provide reasons for giving the
basic premise of the judgment is hard to support as it does not inspire
confidence because of this reason. Moreover, there is a need to define judicial
independence also so that its protection can be ensured.
Accountability to the people:
The role of lay members was also heavily
criticized by the NJAC judgment. The concern of Justice Kehar and Justice Goel
was that the lay members should not be made member. And concern of Justice
Lokur was that the lay members were given the veto power. The problem is that
if the court had objection to membership or the veto power only then it is not
right to reject the NJAC in totality. The NJAC should have been given a fair chance
to be implemented and work and only then it should have been rejected.
Furthermore the participation of individual
law minister in the Commission was considered a threat as he could over power
the process is not justified because how come so highly placed 3 judges of Hon’ble Supreme Court will be over powered by
just one minister? And even if can? What is stopping them to overpower in the
present regime as though not sitting in Collegium but he has all the resources
of the state to do the requisite for the unjustified ends.
No alternative to the
collegium
Shortcomings of the process
‘Best kept secret’
The problem with the Collegium system of appointment is that the judges
are being appointed but what is the criteria for it, is not known to anyone. It
can be described as a best kept secret. Justice Ruma Pal, a retired
judge of the Apex Court, has propounded it to be as“one of the best kept secrets in this country.” Moreover as the
commentator Ashok Malik explains, “the selection process for judges has its
roots in personal connections by which children of influential lawyers and
judges are placed in chambers of senior lawyers. Senior advocates are usually
identified from this pool. The actual selection of judges is narrowed to being
selected from this pool.” He argues that,“an
M.S. Dhoni could emerge from lower middle class India to captain the cricket
team; but what are the odds that he could have become a judge in the Supreme
Court if Dhoni been an exceptional graduate from a Ranchi law college?”[18]
Conclusion:
The Collegium needs amendment but what should be done could have been
decided by the Judiciary. The NJAC judgment provided a wonderful opportunity,
but it failed to do it. Justice Kurian Joseph, recently regretted about NJAC
judgement, but he also said that the independence of the judiciary is better
protected under the ‘Collegium system’, but, there is a need to devise, how
should it work.[19]
At last it can be said that the judiciary did
not provide an alternative to the present regime of appointments even though
the Court admitted the shortcomings of process in following words “the present Collegium system lacks
transparency, accountability and objectivity and very serious allegations and many a time not unfounded too, have been
raised that its approach has been highly subjective.” After
these comments the Hon’ble Judge joined the majority of judges giving the
verdict and rejecting the Collegium all together.
MrParasaran provided insights to the judgment in NJAC Case. He is of
the view that, “as a
future course of action, that all cases questioning the validity and/or
interpretation of a constitutional amendment must be heard by a bench
consisting of not less than 13 judges. And after thus amending the
Constitution, the president may exercise his power to consult the Supreme Court
by framing appropriate questions and making a reference under Article 143 to
revisit the NJAC decision. The government should seriously consider making a
constitutional amendment to this effect. Alternately, the court itself can
provide by its own rule that cases pertaining to constitutional amendments will
be heard only by 13 judges.”Justice John Marshal[20]
has once warned that the power of the judiciary resides not in deciding the cases
or imposing sentences, or sanctioning contempt but it is in the public’s trust,
confidence, and most importantly in faith.[21]
[1] Justice N V Ramana (Former
Chief Justice of India), “Judges appointing judges, a propagated myth: CJI NV
Ramana”, Press Trust of India, Amravati, Dec 27, 2021.
[2]Malik Mazhar Sultan and Another vs.
Uttar Pradesh Public Service Commission and Others, (2008) 17 SCC
[3]Abhinav
Chandrachud, Supreme Whispers,1st edition (Penguin Random House
India, India, 2018). Also See
[4]See
Arghya Sengupta and Ritwika Sharma, Appointment Of Judges To The Supreme
Court Of India, 1st edition (Oxford University Press, Delhi, 2018).
[5] Refer, 5th Late Shri Lavu
Venkateswarlu Endowment Lecture, Vijayawada, Sunday, 26 December 2021.
[6] See Justice AP Shah, “Appointment
Of Judges: Balancing Transparency, Accountability And Independence”, Justice VR
Krishna Iyer Memorial Lecture, 2016.
[15]
See In Re: Under Article 143(1) Of Thevs Unknown, 1998 (5) SCALE 629
(presidential reference).
[18]Justice
AP Shah, “Appointment Of Judges: Balancing Transparency, Accountability And
Independence”, Justice VR Krishna Iyer Memorial Lecture 2016.
[19] See Padmakshi Sharma, “Regret NJAC
Decision, 2018 Press Conference A Story Of 'Lost Expectations': Ex-SC Judge
Justice Kurian Joseph”, Livelaw, 3 June 2023,
https://www.livelaw.in/top-stories/supreme-court-justice-kurian-joseph-njac-decision-press-conference-229991.
[20]Former
Chief Justice of the American Supreme Court.
[21]Rajesh Kumar Singh vs. High Court
of Judicature of Madhya Pradesh, Bench Gwalior,(2007) 14 SCC 126.
Article Information
JUDICIAL INDEPENDENCE IN JUDICIAL APPOINTMENTS? By.: Prof. Dr. Mahavir Singh Kalon
Authors: Prof. Dr. Mahavir Singh Kalon
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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