Re-thinking the process of appointment of judges in India
Applicable for
High Court and Supreme Court judges
Overview of the approach taken
The
approach to solving the judicial appointments requires us to do away with
linking our decision-making to which institution do we trust more—the judiciary
or the executive, or if we see deeper “dangers emerging from a lack of judicial
independence or a lack of judicial accountability.”
The essence of how the reform proposal will play out
Central
to my proposal is a 4:2 panel, with balanced representation of the judiciary
and the executive, yet ensuring primacy of the judiciary. The proposed
Judicial Appointment Body (JAB) 1 would look like this
·
Chief Justice of the
Supreme Court
·
Three senior-most
judges (in terms of tenure) of the Supreme Court
·
Prime Minister
·
Leader of the
Opposition 2
(On
why it would work) This directly
addresses the concerns raised in the Fourth Judges case of the NJAC Act (2015) 3,
ensuring the 'primacy' and 'independence' of the judiciary is not compromised 4
5 6.
In
the event of a tie, the President assumes the crucial role of the final decision-maker for the JAB. His final
decision, made after thorough consultation (not necessarily concurrence) with
the Chief Justice, ensures a fair and balanced outcome, instilling confidence
in the process. This means that it is not just the two members of the executive
who will be sufficient to overturn a decision, which was the case in the
proposal of the NJAC Act, which permitted a person not to be appointed as a
judge if 2 out of the 4 persons of the commission disagreed with the proposal
(On
why it would work) So, in that spirit,
having the President as a tie-breaker in a body in which the judiciary primacy
has also been respected before, must indeed be an acceptable step to even the
judiciary, The unanimity among the judicial appointees to this body enables the
primacy of the judiciary, while also giving a reasonable voice to a dissenting
voice also coming from within the judicial appointees into this body resulting
in the eventual tie.
It is
also important to have a detailed “metric-based evaluation” of judge
selection is to remove heavily subjective evaluation from the selection
process. In cases where meritocracy makes a “junior” judge more deserving of
promotion than a “senior” judge, even those decisions can be legitimately taken
by the JAB in total transparency and with evidence to back them up 9 10.
(On
why it would work) Favouritism
and nepotism would be minimized, while meritocracy also encouraged in a process that has historically been shrouded in the
mystery of how judges from across generations of the same family get into
critical positions of the Courts, how judgements evidently lop-sided are passed
and their bench rewarded or even how networks and friendships often lead to
appointment and promotion rather than meritocracy 11.
(The
challenges it could face, and how to address it) The pushback against this could be on why should
such a publicly disclosed selection process exist only for the judiciary, while
no other constitutional office would hold such a requirement. My response to
this would be that the Supreme Court is the primary guardian of the
constitution of the country, and who the citizens look up to help guide and
deliver them rights to them – and with this added responsibility, it is
important to keep the selection process to such an institution free from any
accusations of fear, favour or nepotism.
On the element of judicial exclusivity, the
question should instead be whether judicial independence (which is a basic
feature of the constitution
(On
why it would work) Other authors have also supported
this point by contending that if the judges had primacy in decisions, this
would also pass the scrutiny under the basic structure doctrine
(The
challenges it could face, and how to address it) As for ensuring the “independence of the judiciary” completed
detached from the executive, it is important to note that the appointment of
judges is neither the only way, nor the most important way to ensure its
independence 13. Hence, it is important for the legitimate arguments
for the independence of the judiciary to not get lost in the maze of necessity
on the complete control over the appointment of judges to be the only or even
primary way in which they can ensure its independence.
It is
also important to address the concerns of the existing Collegium that the
government “holds” its responses to proposed appointments that it does not
agree with. Given the above robust process of checks and balances and
deliberation process, we need to have a defined time period of 45 days within
which the union government should confirm back to the judiciary on the
suggested names, failing which, the proposed names should automatically go
through 14.
Eventually, one must remember that judicial
primacy must not be interpreted to mean judicial exclusivity– the judiciary being the most
pre-eminent should be beyond doubt, but that it is exclusive in authority to
all other institutions without any question must not be blindly accepted – and
it here that the above-suggested checks and balances to power and authority
will help the judiciary itself become (and be perceived as) an even more
credible, robust and independent institution 15.
Endnotes
1) There are various schools of
thoughts which suggest having the bar play a role in the shortlisting process,
have a retired judge be a part of the final selection panel, have varied
regional representatives embedded into the selection process as also
affirmative representation across caste & gender roles – the same has not
been added here as suggestions, as I believe that this needs to happen more at
the judges selection in the lower courts, to ensure wider, diverse &
inclusive participation happens more at the entry-level itself.
2) The representation from both the Council of Ministers and
the Opposition ensures a diversity of view across the narrower executive as
well as the wider legislature.
3) To understand the persistence of the present Collegium
system
a.
Following the Basic
Structure Doctrine judgement, Justice A.N. Ray became the Chief Justice,
superseding 3 judges who were part of the majority judgement in the Keshavanada
Bharati case
b.
Subsequently,
Justice Khanna was superseded as a judge for his dissenting minority judgement
against Indira Gandhi in the ADM Jabalpur case during the emergency
c.
16 judges when they
were transferred by the govt and lost their petition in the court, where the SC
said that transferring was completely in the hands of the government.
d.
The First Judge case
on the confirmation and transfer of judges, in which the judges again decided
that it is the govt alone that would be the final decision maker. The primacy
of the Chief Justice was struck down yet again.
e.
The Rajiv Gandhi
government would also appoint acting Chief Justices to the High Court if those
justices confirmed the government’s nominees to the High Court
f.
In the year 1987, we
then had the Desai Law Commission Report, in which a Judicial Appointment
Commission was proposed of 11 members including 8 from the judiciary across
union, high court and retired judges
g.
In 1993, the Second
Judges bench of 9 judges doubted the correctness of the First Judges bench, in
which the courts finally recognised that the Executive was abusing its power of
judicial appointments. And this finally led to the Collegium formation and the
advisory opinion in Third Judges case, wherein consultation was considered as
concurrence for the Chief Justice and his senior
judges along with him.
4)
This also addresses
the concerns of the Supreme Court and other legal luminaries against having the
representative litigant of the Union Govt. of India (i.e. the Law Minister) a
member of this body, which was raised as an objection against the NJAC Act.
5)
While talking about the existing Collegium, we must also
recognise that an important and immediate precursor to the final selection
process is the shortlisting and screening of the pool of the judges for this
exercise. My suggestion here is to have the Collegium in its existing form
continue with the “screening & shortlisting” process, which would feed into
the final deliberations of the JAB to finalise the judges. This will prevent a
repeat of the previous incidents of tussles between the judiciary as usual
suggesting names, and the executive on and off also attempting to put in its
own proposed names into the pool of the shortlist
6) This model ensures
sufficient checks and balances of power between the executive and judiciary.
Conflict of interest possibilities between the executive and judiciary are also
reduced by not having a Law Minister in the appointment body and by ensuring
that even within the executive, adequate balance is maintained between the
leading and opposition parties.
7)
And this four-member
commission would have had 1 union minister and 2 nominated members.
8)
It is important to note that this is in line with what the
Constituent Assembly had also debated and what Dr Ambedkar himself had called
out as the final power resting with the executive and not the judiciary
9) Most importantly, in the Second Judges judgement, these
criteria have been laid out, for the evaluation process of the judges
10) The JAB’s transparency is also a cornerstone of this
proposal. The minutes of the JAB, a key decision-making body, should be readily
available to the public, and a detailed metric-based account of judge selection
should be published.
11) The well-respected
advocate Dushyant Dave has talked about many cases wherein “judges protect each
other” on the most evident cases of judicial impropriety
12) The NJAC (2015), in its spirit (not
going by its exact letter and suggestion), would have got India in line with
80% of the former or current commonwealth countries, in having a commission for
judicial appointment
13) There are many other more critical ways like the
importance of “the certainty of tenure, protection from removal from office on
arbitrary grounds, protection of salaries and immunity from scrutiny in the
discharge of judicial duties except in the case of misconduct”
14) The Third Judges bench of 1990 had already suggested a
six-week timeline for the govt to respond to the judiciary's proposal. This
must be implemented now. This went to 12-16 weeks on the upper end for high
court judge appointments and any to and fro in the decision-making process
15) After
we have had three recent cases from the decade of the 2010s of the CJI
trampling upon the first principle of natural justice: Nemo judex in sua causa
i.e.no person shall be a judge in their own case (Dev,
2019);
the checks & balances are as important for the judiciary as much for the
executive and legislature, and it is my assertion that along with existing
internal institutional checks within the judiciary, the other pillars also need
to have a strong and formal say in ensuring there is an external check on the
judiciary.
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