By Manraj Singh
“History never repeats itself, but it does often rhyme”.
This quote often attributed to Mark Twain, is a good tool to make sense of our current times. Recently various members of the ruling dispensation in India have stirred up the controversy regarding the appointment of judges. The Supreme Court was criticised for striking down the National Judicial Appointments Commission (NJAC) brought by the Modi government in 2016 and the judgement in Kesavananda Bharati Case (1973) which laid down the doctrine of Basic Structure of the Constitution was called a bad precedent. Supreme Court was also berated for the creation of collegium system and it was advocated that “search committee” or “evaluation committee” comprising of representatives of the executive and judiciary should be formed to short list candidates for appointment. Such repeated attacks create the false narrative that judiciary is a group of individuals with a conspiracy against the elected government of the people. It is as if a cabal hides its secrets from the public. Nothing could be further from the truth.
Historical Background
There has always been a tussle between the judiciary and the executive be it on appointments or on matters pertaining to rights and policy. The area of contention lies in the constitution. Articles 124 and 217 grant power to the President of India to appoint judges of the Supreme Court and the High Courts respectively after “consultation” with the Chief Justice of India (CJI). However, Article 74 states that President shall carry out all executive functions on the “aid and advise” of the “Council of Ministers”. This leads to a natural conflict between the two branches of the State in case there is a disagreement as to whose advice shall bear more weightage. Although there was no such problem during the terms of first two Prime Ministers, who were accepting of the CJI having the final say, things went downhill when Indira Gandhi became Prime Minister. Many of her policies were struck down by the judiciary. During her second term the idea of “committed judiciary” took centre stage. This implied that judges whose ideologies were in alignment with that of the government were to be promoted and appointed. Many judges were promoted out of turn superseding their seniors. This carried on until 1993 in the case of Supreme Court Advocates-On-Record Association (SCARA) vs Union of India, commonly called the Second Judges Case, where it was held that judicial view will hold primacy. A new institution called the Collegium was created which consisted of the CJI along with two senior most judges. This was later increased to five in 1999.
Collegium system was brought to preserve the idea of independence of judiciary which is the part of the Basic Structure of the Constitution. The independence of judiciary is possible when the judges are independent, and they are independent when they are not committed to the Executive but to the Constitution.
Insidious Criticism
It is claimed that collegium is alien to the Constitution. It is also said that Government has no say in the appointment of judges and it is only the judges who appoint the judges. This shows a reductive understanding of the functioning of our institutions and Constitution. The doctrine of Basic Structure which is also not explicitly part of our Constitution and yet integral to it, is rooted in jurisprudence and history. It has saved India from the whims and fancies of the Executive. Since independence of judiciary is part of basic structure hence collegium is a refined mechanism to appoint judges thereby balancing the views of the judiciary and executive. If we go deeper into the workings of the Collegium and understand how it plays out in the real world, then we will find our answer. Collegium recommends names for the appointment and sends them to the Executive. The views of the latter are taken. If there is any objection by the Executive the said names are sent back for reconsideration. Many a times the judiciary considers the objections and the appointment is withdrawn. In case, after the objections are considered and judiciary reiterates the same names then the appointment must happen. This is the only instance where the judges have the last word. If for some reason the President (ergo Executive/Government) does not give his assent, then appointment does not go through. Therefor the final stamp of approval lies with the Government and not the judiciary.
Criticism of
the Collegium
Apart from the common and refutable criticism of Collegium system there does exist credible criticism of it. Due to lack of transparency as to why certain candidates are selected and why some are rejected in the public domain, it instils a sense of unaccountability in the minds of the public. However, recent developments do offer some creative ideas for solutions to these problems.
The current CJI D Y Chandrachud made public the reasons why certain candidates which were found to be deserving of appointment were rejected by the Executive. The Government was left red faced as it showed how the appointments were being stalled by the Executive because of trivial and prejudiced reasons. Although the manner of this tactic might appear rash to some, yet it can pave the way for a balanced approach in which all sections – judiciary, executive and the citizens are made aware of the process. While streamlining the appointment process, it is a good administrative idea to fix timelines for meetings and appointments.
Looking elsewhere around the world we can learn the good lessons and reject the bad ones. In the USA, the appointment of judges to the Supreme Court is an extremely political and partisan process. Although it is commendable in its transparency, yet it can be disastrous due to the power yielded by the Executive. Judges are appointed on the lines of political parties and ideological lines dependent upon the people in power. This leads to dangerous judgements which can be more in line with political ideology rather than sound legal principles. The judges in the States are appointed by election which has its own disadvantages. The focus of the judge becomes more on winning the election by any means possible rather than being chosen on legal acumen.
The present system of appointment in the United Kingdom can bring us closer to the idea of a better system. UK follows the policy of open competition of the candidates. They are interviewed by a Judicial Commission and then consultation is done with politicians and senior judges. At no stage does one party hold veto power over the other. NJAC gave disproportionate amount of power in the hands of the Executive to veto a candidate without mandating a reason. This explains why Supreme Court of India declared it unconstitutional.
It was Harold Laski, the iconic intellectual who advocated for the judiciary to have a decisive say in appointments. In ‘The Grammar of Politics’, he studied the various systems throughout the Western world. His analysis terms the system of election of judges in USA as a method to be “without exception the worst”. Regarding appointments done by the legislature, he opined that “an average member of the legislature has no special qualifications” to judge the suitability of the candidate. Laski also studied appointments done by the Executive. He found that this was being done in the UK and the Lord Chancellor was appointing judges who were members of his own party. Similar would happen in India if the Collegium system is dismantled. Laski finally comes to the conclusion that it is the judiciary that is best suited to judge the capability of a candidate. They are not likely to be moved by “political prestige” and are best suited to know the day to day activities of the bar to judge a person.
We must watch this developing story especially the manner of criticism and outburst against the judiciary. It was not only without data and evidence, but it advocated for the adverse policies which our country has already suffered in our history. At the end of the day this machinery only works if all stake holders work with good faith and trust keeping the goal of choosing the best in mind. We must always remember that those who do not learn from history are condemned to repeat it.
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