Ending the impasse

Sriram Panchu  August 22, 2016

Illustration: Deepak Harichandan

The judiciary-government face-off cannot go on indefinitely. The Supreme Court and the executive need to finalise the Memorandum of Procedure for appointment of judges

The tension between the judiciary and the government on the appointment of judges to the High Courts and Supreme Court seems to be intensifying. The two have been locked into conflict on this issue for the last 16 months. Meanwhile, 475 seats in the High Courts remain unoccupied, a staggering and unprecedented number. The damage to an already overloaded judicial system is beyond calculation. Our higher judiciary at the State level struggles to keep its head above water, managing against odds to keep the system going, but its hopes of an efficient and responsive justice delivery system have receded considerably.

The collegium debate

Supreme Court judgments in 1993 and 1998 gave rise to the collegium of the five senior-most Supreme Court judges, who exercised the supreme power of appointment to the judicial ranks. The judgments provided for a consultative process between the executive and judiciary, and for the government to return for reconsideration a name sent by the collegium. However, the appointment had to be made if the collegium reiterated its view. Essentially, the court had the last word; this was the cardinal concept laid down. The methodology for consultation was contained in a Memorandum of Procedure (MoP) formulated in 1999.

In April last year, the government brought in the National Judicial Appointments Commission (NJAC) Act, after securing an unanimous vote for its passage in Parliament and some State Assemblies. This was widely seen, in the language of Star Wars, as the empire striking back, an attempt to break the judiciary’s monopoly by placing the Law Minister and two “eminent persons” (in whose choice the judiciary had a minority voice) at the deciding table, along with the Chief Justice of India and his two senior-most colleagues. Predictably, the NJAC was challenged. Several appointments were in the pipeline, but the court declined to direct these to be processed for appointment.

In October 2015, a five-judge Bench of the court held the NJAC to be unconstitutional, a decision that caused heartburn to the entire political class, and a severe loss of face for the government. It was clear that it would only be a matter of time before another attempt was made to undermine the supremacy of the collegium. That opportunity presented itself sooner than later. Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court could itself have proceeded to reformulate the MoP, and in retrospect, it would have been wiser for it so to do. Instead it heeded the request of Attorney General Mukul Rohatgi that the government should be permitted to do this exercise. Perhaps the judges felt that this would compensate for having excluded the government from the deciding table, and that if the government drafted the revised MoP it would be co-opted into acceptance of the judgment. However, in its Order dated December 16, 2015 permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases.

The MoP runs into a few pages, and all it needed were insertions to cover the above points. This exercise should have taken a couple of weeks. However, it is eight months now and the document is far from finalised. It appears that the logjam is over the government’s assertion that if it rejects a candidate on the ground of national security or public interest, then such rejection is binding on the court. In simple terms, the last word would belong to the executive whenever this reason is invoked. This is where the court is unwilling to relent, since it goes against the grain of its judgments establishing the collegium.

The government’s position

An observer can be forgiven for thinking that the Arab and the camel syndrome is playing out here. The government sought a limited role as the draftsman of the MoP, and then utilised this slender opening to prise open the door, seat itself at the table, and exclude the judiciary by invoking the mantra of national security or public interest. It may be noted that the existing MoP does not deal with the “last word” issue, that being contained in the judgment itself; the government is therefore out of bounds in its current attempt. It is also somewhat strange that the government positions itself as the protector of national security and public interest, as if the court will insist on a name going through where these are threatened.

This hiatus cannot go on indefinitely. Appeals, remonstrations and rebukes from the Chief Justice of India do not seem to have the desired effect. It looks as though apart from the court, the other branches do not view the deterioration of the justice system as a pressing issue. Perhaps the time has come to face the problem squarely, and to adopt a more direct method of engaging for resolution. The Attorney General could take the lead in meeting both sides, formulating and reformulating proposals. Else, the Law Minister, with necessary authority, could engage with the judges. Another option is for the Prime Minister to take the lead to invite the Chief Justice and senior judges for a discussion. And let us not rule out the ultimate possibility of the President being just that bit proactive to bring the heads of the two institutions together. These above methods may serve to end the impasse and get matters resolved. If these are not tried, or are unsuccessful, the Supreme Court should consider recalling its order permitting the government to draft the revised MoP, and to undertake the task itself. That exercise should take a week at the most.

Sriram Panchu is a Senior Advocate at the Madras High Court. Email: srirampanchu@gmail.com

Source: thehindu

Judging the Judge-maker

October 19, 2015 | Updated: October 19, 2015 01:09 IST

Sanjay Hegde

 Till 1993, judges were appointed by the executive in consultation with the judiciary. Illustration: Deepak Harichandran

The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. 

A powerful two-term Chief Minister of a central Indian State was seen obsequiously bowing and scraping and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing to someone who only a few months prior, as an undistinguished government pleader, would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.

The story may be apocryphal, as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate conception, unassisted by other organs of the state.

Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism. The situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”

Quiet revolution

It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.

In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”

The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.

Unstable structure

Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied, when old rivalries between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath could wreck a hitherto promising judicial career.

The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth. Equally, while a reputation for corruption was a disqualifier, lesser evils like tardiness or sloth often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.

But the collegium also ensured that judges were not beholden to any politician. A bold judgment could end up unseating the most powerful of politicians or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause it was held, impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”. The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.

Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”

The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary desert sands of dead habit, but into ever widening thought and action.

(Sanjay Hedge is a Senior Advocate of the Supreme Court)

Source: thehindu