In this article the author looks into the contentious history of judicial appointments and how the pursuit of judicial independence appears to have been at the cost of judicial accountability. In order to enhance the accountability of the present collegium system, the article suggests a number of administrative measures that can not only make the appointment process more transparent but also instill public trust in the judiciary.
The procedure for appointment of Judges in the higher Indian Judiciary has been a subject of debate and criticism. It has evolved by way of several enactments and judicial pronouncements. The procedure of Judicial Appointments in India is highly diversified as judges of various generations and characters, and Governments of different ideologies have tried to impose their rules and systems of appointment to secure ‘judicial independence,’ a term often used but not constitutionally explained.
The appointment of judges to the Supreme Court (SC) and High Courts (HC) has been mandated in Art.124(2) and Art.217(1) of the Constitution respectively. The provisions provide that the power to appoint the Judges vests with the President, ‘in consultation’ with the Chief Justice of India (CJI) for the SC, and ‘in consultation’ with the CJI, the Governor of the concerned State and the Chief Justice (CJ) of the concerned HC, for HC appointments. The inclusion of the President in ‘consultation with the CJI’ was for namesake and the appointments to the higher judiciary was the prerogative of the executive. This unfettered power in the hands of the executive was challenged in Union of India v Sankalchand Himmatlal Sheth where the SC observed that the term ‘consultation’ in Art.222(1) should be interpreted by reading in ‘real, substantial and effective consultation based on full and proper materials placed before the Chief Justice by the Government.’
Thereafter, several years later, in SP Gupta v. Union of India (‘First Judges’ Case’) the majority opined that though ‘Judicial Independence’ is a part of the basic structure of the Constitution. It held that the view of the CJI in appointments and transfers is non-determinative. Highlighting ‘executive primacy’, the court held that ‘consultation’ in Art.217(1) does not mean ‘concurrence’. However, subsequently in Supreme Court Advocates-on-Record Association v Union of India (‘Second Judges’ Case’), it was ruled that ‘consultation’ in Art.124 and Art.217(1) connotes ‘concurrence’ and held that the CJI has primacy in appointments and transfers, and that his power was held to be ‘unique, singular and primal’. Further, it was stated that the opinion of the CJI is not of his own, but of the ‘collegium,’ consisting of the CJI and the next two senior judges in line. The comprehensive working of the collegium was unanimously clarified by the SC in, In Re Presidential Reference (‘Third Judges’ Case’). As per this ruling, the collegium would consist of the CJI and four senior judges in line for the SC, and the CJ and two senior judges in line for the HCs.
The NJAC Conundrum
In Supreme Court Advocates-on-Record Association v. Union of India, the constitutionality of the National Judicial Appointment Commission Act, 2014 (‘NJAC’) was challenged. As per the proposed act, the NJAC would be a six-member group consisting of the CJI, two senior judges in line, the law minister and ‘two eminent persons,’ chosen by a committee of the CJI, the Prime Minister and the Leader of Opposition. The majority opinion in this case declared the 99th Constitutional Amendment Act as unconstitutional for violating ‘judicial primacy’, thereby violating the basic structure of the Constitution. Justice Khehar, in his majority opinion, stated that the power of the executive is not curtailed through the collegium scheme as it can object to the recommendations of the judiciary. The idea of appointing a commission having only three members from within the judiciary was held to be problematic. Moreover, it was ruled that disproportionate power was given to the two ‘eminent persons’ as they were empowered to veto the recommendations made by any other member of the commission. The minority opinion, given by Justice Chelameshwar is also of significance: distinguishing between the basic feature and the basic structure of the Constitution, he stated that judicial independence is not a part of the basic structure of the Constitution.
Nonetheless, even the NJAC failed to cure the problem of ‘transparency’. ‘Any other suitable criteria’ provided in the act reinforced the problems of favouritism and arbitrariness already existent in the collegium. Also, for any decision to be made, at least 5 out of the 6 members had to agree. Hence, the whole system was made prone to disagreements thereby making it redundant and overwhelming judicial independence. Nevertheless, considering the way-out it presented from the discontent of the collegium system, amending it would’ve been a viable alternative. However, considering that the NJAC is unconstitutional, one needs to set right the collegium system of appointments by augmenting transparency and objectivity in the present selection procedure.
Rethinking the Collegium’s working procedure
Not to mention, issues regarding opaqueness, favouritism and nepotism in the collegium’s appointment procedure have been well documented. Justice AK Sikri has informally stated that while appointing judges to the higher judiciary, ‘far from the scientific study of candidates we go by our impression’. He pointed out that the collegium system was not working properly and that it needs serious reconsideration. Moreover, as per a report, around 50% of HC and 33% of SC judges are related to ‘higher echelons of judiciary’. Transparency in the procedure can be ascertained by establishing an objective procedure of selection by devising a system that balances judicial independence and accountability. It is often understood that independence and accountability are unrelated, however accountability is a facet of independence and the faith of the public exists only in an independent institution.
In CPIO v. Subhash Chandra, Justice Chandrachud observed that some ‘essential substantial norms’ must followed during the appointment of judges: performance at the bar, experience, domain specialization, income and social work of a prospective judge were observed to be such substantial standards. Additionally, the need to formulate these standards, thereby promoting public confidence in the appointment process was deliberated upon. Henceforth, this article discusses some policy prescriptions to ensure an independent judiciary, by making the appointment procedure more transparent – as regards these norms.
a. Lawyers right to apply for appointment at the bench
For appointments to the HC, any of the three members of the collegium as per the Third Judges’ Case, may propose a name for the appointment to the bench. If the collegium collectively agrees that the name of the proposed candidate should move forward based on the ‘materials available’ it recommends him further. As a matter of fact, these persons are acquainted with the members of the collegium or their colleagues. Yet many exceptional lawyers who didn’t get acquainted with the members of the collegium may be left out, maybe due to the fact that they never got an opportunity to appear before the collegium members as an advocate.
In this regard, it has been argued that whenever vacancies are created, applications should be invited from eligible candidates. This would resemble the mechanism in the United Kingdom, where the Judicial Appointment Committee is tasked to invite applications from eligible candidates, scrutinize the same and select candidates specifically on ‘merits.’ Similar procedures are also followed in the US, Canada, Australia and other major regimes. However, this would be a troublesome task for an already burdened judiciary. Also, considering the post to be a constitutional one it might not be the best alternative. Therefore, a method should be devised whereby an eligible lawyer has an opportunity to apply for appointment to the bench by sending in his resume and other required material in form of a letter addressed to the Chief Justice. The power of the members of the collegium to recommend names on their behalf would not be curtailed. However, any name tabled by a member of the collegium should have to go through the same scrutiny as that of an ordinary applicant.
b. Increasing the minimum income criteria
As per the present procedure, in order to be eligible to become a HC judge, an advocate is required to have a ten year practice along with a professional income of at least seven lakh per annum in the preceding five years. However, it is practically difficult to find an advocate practising in any HC whose annual income is less than seven lakhs over the last ten years. As the income of an advocate is a reasonable criterion for judging his potential and worth. The present seven lakhs could be reasonably increased, at the least for larger HCs, to rupees ten lakhs per annum as already conveyed by the union government. This would rule out meritless applications. However, the minimum limit could be exempted in exceptional situations when a candidate shows that has been into pro-bono practice.
c. Screening Applications
Now, if applications are invited from candidates, it would be a primary prerogative to establish an appraisal committee in the HCs and the SC in order that the applications from desiring candidates are duly reviewed. As per the current procedure, the number of cases argued by an advocate is looked at while screening his resume. However, importance should be given to the ‘reported cases’ argued on merits, irrespective of its outcome. These reported cases need to be mentioned in the applicant’s candidature and evaluated by a ‘case evaluation committee.’ The task of the evaluation committee would include analyzing the cases on the strength and quality of the arguments advanced therein. A Judgement Evaluation Committee is already in existence at the HCs and the SC. This committee at the HC is tasked to evaluate judgements delivered by the district judges in line to become a HC judge and the parallel committee at SC evaluates judgements of an additional HC judge while considering his/her permanency. The evaluation committee’s report would also be beneficial after the judge’s appointment. It would help the CJI and CJs to decide the jurisdiction to be given to the sitting judges in order that the judge works to the best of his/her potential.
d. Making the reasons for appointment public
The most important part of making the appointment process transparent is making it look transparent. As can be seen, the above criteria for appointment would make the process objective, therefore the reasons for appointment should be made public as well. This would develop public trust in the collegium’s appointment process. In CPIO v. Subhash Chandra it was observed that placing the criteria followed in making judicial appointments in the public domain would engender public confidence in the appointment procedure; but it would prevent extraneous considerations from entering into the process. Moreover, rejected as well as prospective candidates in order to improvise their profile would work following the criteria adopted during appointments, thereby making advocacy even more efficient. Nevertheless, all these reforms would be worthless if extended without proper scrutiny. Therefore, similar to the present system, the re-examination of the selected applicants’ profile at the SC should remain intact.
The Indian judiciary is empowered with the highest amounts of authority but appears to be minimally accountable. The urgent need for reforms in the appointment procedure can never be disputed, especially since this has become a constant bone of contention between itself and the Executive. A perfect balance between independence and accountability can be achieved when the judiciary has primacy in appointments but the appointments are based on scientific criteria and not arbitrary considerations. In the debate around judicial appointments, the Central Government plays a major role – however commenting on the powers of the Government is outside the ambit of this article. Nevertheless, it is expected that the aforesaid reforms would foster the making of an appointing authority that is accountable for its actions, independent from unwarranted nepotism and favoritism.
The author is a student at the West Bengal National University of Juridical Sciences.