Originally Published 2013-09-05 14:30:56 Published on Sep 05, 2013
Whatever be the model for judicial appointments, the crux of the matter is the necessity of giving "cogent reasons in writing" on nominations as well as appointments and whatever model the executive and legislature chooses in its wisdom must give voice to the same.
Judicial appointments: Is the proposed JAC better than the Collegium System?
"The Union Government’s efforts to bring in judicial reforms, especially in the judicial appointments (The Constitution (120th Amendment) Bill, 2013, and its enabling legislation - the Judicial Appointments Commission Bill), has yet again opened up the debate on the question of securing judicial independence while ensuring transparency and accountability in the judicial appointments process. The rigorous judicial scrutiny in the cases of 2G and Coalgate cases has further highlighted this point.

The proposed Judicial Appointments Commission (JAC) will consist of the Chief Justice of India, two Supreme Court judges, the Union Law Minister, two eminent citizens and the Justice Secretary. The eminent members will be nominated by the Leader of the Opposition in either house, the Prime Minister and the Chief Justice. The JAC will replace the existing collegium system where members of the higher judiciary have the primacy in judicial appointments.

History of executive role in judicial appointments

The controversy surrounding the present Collegium System can be traced back to the heydays of executive-judiciary rivalry of 1970s. The executive’s role in judicial appointments in India has been fraught with instances of executive overreach for political purposes in matters of judicial appointments. The executive has made consistent attempts to undermine judicial independence, notably during the Emergency era. The Supreme Court’s famous ruling in Keshavananda Bharati case led to the supersession of three senior most judges of the Supreme Court by the Indira Gandhi government. The government appointed a Chief Justice who had passed judgments in favour of the government in the guise of appointing "forward looking" judges. The judges were often compliant to the wishes of the executive. During the emergency, 16 High Court judges were transferred by the executive without following the due procedure which ranks as the most prominent attack on the judicial independence in India’s history. Post 1980, with the return of the Indira Gandhi government, the ministry of legal affairs yet again undermined judicial independence by arbitrary transfers.

In confirming to executive dominance, the Supreme Court in S.P. Gupta case grudgingly upheld the primacy of the executive in judicial appointments. The procedure laid down by the Court involved consultations with all the constitutional authorities and giving it their due weight by the executive. The consultation with the Chief Justice of India was mandatory to certify the antecedents of judges, though his concurrence was not a necessity. The Court held that "the ultimate power of appointment rests with the Central Government and that is in accord with the constitutional practice prevailing in all democratic countries." However, the judgment was criticised for undermining the independence of the judiciary as well as affecting the security of tenure.

The Collegium System

The Collegium System that came into existence in 1993 was in response to the growing executive role in undermining the judicial independence especially on matters relating to appointment of judges in the higher judiciary. The new system evolved as a consequence of three Supreme Court Judgments (referred to as the Three Judges Case). The judgments ensured the primacy of the judiciary over the legislature and the executive in matters of judicial appointments.

This new reassertion of the judiciary was in consonance with the trend of judicial activism undertaken by the Supreme Court in the late 1980s. This was also the era of coalition governments which undermined executive authority in combating an assertive judiciary. Under the collegium model, the Chief Justice of the Supreme Court in consultation with the five senior most judges of the Supreme Court has the final say in the judicial appointments process. The Court in the Second Judges case held: "the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ’consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary." The Court in the Second Judges case ensured that the opinion of the Chief Justice of India is the decisive factor in judicial appointments. In the Third Judges case, elaborating upon the selection process the court held that the Chief Justice of India would consult the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments. The judiciary rewrote the constitutional arrangement enumerated in Article 124 and Article 217 of the Indian Constitution which provided for a plurality of functionaries (executive and judiciary) by ensuring plurality of functionaries only within the judicial system.

In recent times, the collegium system has come under severe criticism for its opacity and unaccountability. There have been charges of nepotism in the appointments process, lack of an adequate tenure for the chief justices of the High Courts, the consultation process being secretive and unknown to the judiciary and the public and meritorious candidates from the bar and high courts being denied an opportunity to serve on the bench for undisclosed reasons. For instance, Justice Ruma Pal had recently remarked that the collegium system of appointment is "one of the best kept secrets in the country". India is the only country in the world where judicial appointments are decided by a collegium system.

Is JAC better?

The JAC seeks to reassert the primacy of the executive. However, if the history of executive interference in the Indian judiciary is taken as a yardstick, it does not offer us an encouraging picture. Furthermore, the rigorous judicial scrutiny in the 2G case as well as the recent Coalgate case and the inability of the executive to rein in the constitutional authorities, including the judiciary, has fuelled speculations that the JAC is an attempt to trample upon the independence of the judiciary in the guise of reforming the collegium system. Though the inadequacies of the collegium system need to be addressed, the current model is ambiguous in its scope. The JAC has not laid down an objective procedure for appointments. These include norms to ensure transparency in nominations, criterion for assessing the suitability of the candidates and objective guidelines for determining meritorious candidates. Judges must also be ensured security of tenure as well as an adequate tenure period through the new mechanism.

In the past, judges have been appointed for extremely brief periods so that they could enjoy the perks of office post-retirement when the judiciary would have been served better by a colleague with a longer tenure period. The judiciary has been at the forefront of ensuring adequate tenure for civil servants in the past, but it has been hesitant to apply a similar criterion to their own brethren. The wider representation in the selection process (inclusion of members of legal academia, leader of the opposition and the executive via the law minister) is a step in the positive direction and must be included in the final bill. The crux of the matter is the necessity of giving "cogent reasons in writing" on nominations as well as appointments and whatever model the executive and legislature chooses in its wisdom must give voice to the same.

(Samya Chatterjee is a Junior Fellow at Observer Research Foundation, Delhi)

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