Ananya Narain Tyagi

The irony is that the judiciary, after all its effort to distance itself from the executive after the emergency, has come a full circle to face the same questions over its independence as it did back then

This year we marked the 44th anniversary of Emergency in India which saw a flood of articles identifying the dubious nature of the similarities between the Indira Gandhi Government and the Modi Government.  A number of them also referred to the compliant attitude of the judiciary.

The question of judicial appointments first arose in 1948.  A conference was held by the then CJI Kania to discuss the aspects of the Draft Constitution which affected the judiciary. There was a general consensus among the judges that all future appointments should be made with the ‘concurrence’ of the CJI in order to safeguard appointments from the influence of political motivations. However, ultimately the Constitution mandated the President to make all appointments after ‘consultation’ with Chief Justice of India, Governor of the State and High Court Chief Justice. Ambedkar thought of the 1948 conference’s recommendation to be “dangerous proposition” because he was sceptical of conferring so much power to the Chief Justice as a lot was clinging onto the “impartiality of the Chief Justice and the soundness of his judgment.”

Eventually, in 1993 we gave wings to the consensus arrived at the conference of 1948 by setting up the present collegium system for appointment and transfer of judges. Now Chief Justice of India’s opinion is accorded primacy over appointments instead of the Executive. 

It is an open secret that Indira Gandhi’s regime utterly grinded down the independence of judiciary by suppression, transfers and packing the court with “committed judges”. The aftermath of the acclaimed Kesavananda Bharti decision was the appointment of Justice A.N. Ray as the Chief Justice of India after superseding three senior judges who were in the majority of the basic structure decision. This culminated in a 4:1 decision in the notorious habeas corpus cas, led by Ray, declaring that citizens’ right to life and personal liberty can be swept aside during emergency. An episode mentioned in Dr. Chandrachud’s book “Supreme Whispers” reveals how in 1969, then Home Minister Y.B. Chavan asked then CJI Hidayatullah about the ‘political ideology’ of the three judges that he had recommended for elevation to the government. Justice Roy, who was Former Prime Minister Indira Gandhi’s childhood friend, was appointed to the Supreme Court after being interviewed by Gokhale, Kumarmangalam and Ray (members of the union cabinet) to get a sense of where he stands on various matters.

The government in 1970s employed a technique to “intimidate the judiciary” by transferring judges who ruled against the government. For instance, Justice A.P. Sen was transferred out of Madhya Pradesh High Court after he ruled against the government in a Habeas Corpus petition which later came became the notorious Habeas Corpus case in appeal. In order to bring the judiciary to its toes, the government also delayed appointments. Many of Justice Bhagwati’s recommendations for appointments were ignored by the executive when he vehemently protested against appointing Prakash Narain to the Supreme Court by threating to resign. Many appointments were not confirmed so as to “bully the chief justices into cooperating with the government.” 

Former CJI Gogoi’s conduct as the Chief Justice was nothing short of controversial. The Caravan Magazine notes how the elevation of judges to the Supreme Court by the collegium during his tenure should be taken with a pinch of salt. When the now Supreme Court judge, Justice Maheshwari, was the Chief Justice of Karnataka High Court, Justice Chalmeshwar had written to then CJI Misra, protesting against his conduct. According to the letter, Justice Maheshwari in attempting to reopen an inquiry against a District Court judge, after he received a communication from the Ministry of law and justice “to look into the issue”, so as to block that judge’s elevation.  In another instance, Justice Muralidhar, a puisne judge of the Delhi High Court, was transferred to the Punjab and Haryana High Court, right after he directed the Delhi Police to register cases against some BJP leaders while hearing a bunch of cases tied to the recent East Delhi Riots. His transfer happened overnight so as to list the case for its next hearing in front of the Chief Justice’s bench instead of his bench.

In 2014, through the 99th amendment to the Constitution, the executive attempted to enforce a National Judicial Appointment Commission (NJAC) replacing the collegium system. The commission was to be constituted of six members led by the CJI, the next 2 senior members of the Supreme Court, the law minister and two eminent persons nominated by a panel comprising of the CJI, Prime Minister and leader of the opposition. However, the court struck down the NJAC by declaring that judicial independence is part of the basic structure and therefore cannot be amended. Since the emergency, ‘doctrine of judicial primacy’ i.e. supremacy of judges in the appointment process, gained momentum and emergency often became an excuse for the top judiciary to gain more and more power. This went on to create an apparent rift between the executive and judiciary wherein the latter delayed appointments of judges and lead to a rather tearful appeal being made by the then CJI Thakur to consider the backlog of cases and the glaring vacancies in the courts. 

Is it time to look elsewhere?

The above discussion was an attempt to highlight that besides a superfluous change in the procedure of judicial appointments, practically not much has changed since the 1970s. Both NJAC and collegium are two sides of the same coin. If NJAC screams the fear of an authoritarian executive taking over appointments then the collegium system poses a valid question, in the words of Justice Ruma Pal of who will guard the guard themselves? It is this conundrum that makes me wonder whether we should start looking elsewhere for a more viable solution.

The French civil law system has a rigorous institutional mechanism of appointing judges in place in the form of a national judicial school, Ecole Nationale de la Magistrature. In France, judiciary is a lifelong profession where every aspect of judges’ training and education is carefully scrutinized in order to create a “particularly coherent corps of judicial magistrates” so that they can police themselves. Candidates have to go through a series of tests in the form of a written examination and an oral round for different categories of candidates. 

However, before looking elsewhere, if we take a look in our own history, we’ll discover a rather underrated solution in the recommendation of the ad hoc committee of the Union Constitution Committee of the Constituent Assembly which was established in May, 1947. The committee comprised of eminent members like former Federal Court judge S. Vardachariar, a Madras Advocate A.K. Ayyar, former advocate general at the Federal Court B.L. Mitter, Bombay politician and advocate K.M. Munshi and constitutional adviser to the constituent assembly B.N. Rau. The committee was also wary of giving “unfettered discretion” to the President in making judicial appointments. Their recommendation was to constitute an eleven-member panel comprising of High Court Chief Justices, members of both houses of Parliament and a few law officers of the Union. Two alternative methods were suggested- either the president after consulting the CJI would recommend a name to the panel, which was to be ratified by 7 out of 11 members of the panel or panel itself would suggest three names out of which the President, in consultation with the CJI was appoint one.

The Union Constitution Committee however, rejected this proposal and recommended that “a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also such judges of the High Courts as may be necessary for the purpose.” It is unclear in the records of the Constituent Assembly as to why this proposal was specifically rejected but I believe it has to do with Dr. Ambedkar’s speech below: 

“It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States [sic], 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 provision. Apart from its being cumbersome, it also involves the possibility of the appointment being influenced by political pressure and political considerations.”

Dr. Ambedkar wanted a “middle course” between executive’s supremacy and influence of the legislature which can truly be achieved in its full essence only through a panel as recommended above. This mechanism would not give an opportunity to either wings of the state to dominate over one another because there are other key players to balance discussions out. Since this was expressly rejected one could say that falling back on this would be defying the spirit of our constitution. However, “concurrence” of the Chief Justice of India under the present collegium is also not as per the will of the constituent assembly. This part of  constitutional history has not been debated on much and deserves re-thinking

This assumes immense importance  because we seem to have reached an impasse where giving complete primacy to either of the two wings of state i.e. judiciary and executive can have far reaching consequences in terms of theindependence of judiciary.

The author is a penultimate year law student at Jindal Global Law School