A lot has been said and written supporting and criticizing the NJAC judgment delivered by the Supreme Court of India (following the convention, it can be referred to as Fourth Judges Case[1]). There were legal luminaries on both sides of the arguments. But whether you criticize or support the judgment, the reality is that, the judgment has been delivered by the Supreme Court striking down the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 holding that they are violative of the principles of “independence of the judiciary” and “separation of powers” and “basic structure” of the Constitution of India. So now the discussions should be more on the ways forward.
No one – not even the petitioners in the Fourth Judges Case – would have a case that the present collegium system is the best and the only way of appointment of judges which can maintain independence of judiciary. On the other hand, everyone would agree that there are basic and serious faults with the Collegium System. It is one of the most opaque, partisan and absurd systems for selection to posts of such high rank. So it is undisputed that the Collegium System has to give way for a better system.
However, leaving the appointments or giving primacy to the executive or legislature in appointments of judges of the Supreme Court and High Courts would not only violate the principles of independence of judiciary but also defeat the very purpose of separation of powers. Earlier we had a system under which the executive used to have a big say in the appointment of judges. Of course, there were many excellent judges appointed in High Courts and Supreme Court under that system. But the Supreme Court had to interfere when that system began to deteriorate and lay down that judiciary has primacy on appointment of judges of High Court and Supreme Court.
On the other hand, if the power to appoint judges is left to the legislature, it would defeat the very purpose of the constitutional courts. One of the main responsibilities of the Constitutional courts in India is to look into the constitutional validity of the laws/constitutional amendments made by the legislature. If the legislature is empowered to appoint judges according to their whims and fancies, we can expect what would be judicial decisions on the questions as to validity of laws/amendments made by the legislature that appointed the judges.
There is no judicial pronouncement that the requirements under the first paragraphs of Articles 124 (2) and 217 (1) or the mechanism provided under Second and Third Judges Cases’ are basic structures of the Constitution of India and that the said Articles are not amendable. What required to be followed in appointment of judges is to ensure independence of judiciary and act within the principles of separation of powers. Independence of judiciary and separation of powers can be maintained even if executive and legislatures are made part of the appointment procedure so long as the role of the executive and legislature does not amount to curtailing the “primacy” of the judiciary in appointment of judges. The Supreme Court in Fourth Judges case, while discussing the office memorandum dated 30.06.1999 drawn by the Ministry of Law, Justice and Company Affairs after the judgments in the Second and Third Judges cases, the Supreme Court even made it obvious that the judiciary did not intend to create a system of Imperium in Imperio or keep the executive totally out of the process of selection of judges[2].
“Primacy of the judiciary“ does not mean unilateralism or dictatorship of the judiciary. Even when primacy in appointments is given to the judiciary, there is nothing that prevents the executive or the legislature to have their say in the appointment of judges. Such powers to the executive and legislature will be found not only in the concept of democracy but also in transparency of state actions. Democracy demands transparency.
The way forward is to devise a system for appointment of judges in which the primacy of the judiciary is maintained at the same time democracy and transparency is ensued. This can be achieved by involving all three arms of the state in the process of appointment of judges in the Supreme Court and High Court, in which the judiciary recommends candidates for appointment of judges, executive verifying the credentials and background of the candidates and the legislature discussing and finally approving for appointment the candidates recommended by judiciary and verified by the executive. This process can be termed as an extension of the existing collegium system, but with checks and balances including scrutiny of the general public.
Under such a system, in order to appoint a judge in the High Courts, the collegium of the High Court in consultation with Chief Justice of India should select and recommend the candidate to be appointed. In this process, the candidate’s honesty, integrity and his expertise in law should be taken into consideration. The expertise in the field of law shall be demonstrated by cases in which he/she appeared and argued (in case the candidate is a lawyer) and the cases he/she has decided (in case the candidate is judge of the subordinate judiciary). The candidate so selected should, then be forwarded to the State Government, with a statement of reasons for recommending the name of the candidates, for verification of the candidates of their antecedents and allegations if any, including their affiliation to any particular political party or religious groups which should be considered as a disqualification to be appointed as judge.
The State Government shall conduct a thorough investigation of the credentials and backgrounds of the candidates and if the investigation reveals anything undesirable for the candidate to be appointed as judge of the High Court, it shall return the recommendations with their remarks to the High Court. TheHigh Court should respect the decision of the Council of Ministers and should not recommend the same candidate again so long as the reasons stated by the State Government for rejection of the recommendation exists.However, the decision of Council of Ministers shall be subject to judicial review by way of writ petition before the High Court -by the High Court or the candidate. Such writ petition shall be heard by a bench of not less than three judges who were not part of the collegium that originally recommended the names of the candidates to the executive.
If the council of ministers approves the candidates recommended by the High Court or the decision of the Council of Ministers has been reversed in judicial review, the same should he be made public and forwarded to the state legislature for deliberation in the state assembly. While legislature is deliberating the candidature of a particular person to be appointed as judge, it should be telecasted for the public to view. After deliberation, the legislature in the absence of unanimity should by simple majority make a recommendation to the President of India.
Similar system, with necessary changes, can be followed for appointment of Supreme Court judges also. In appointing the Supreme Court judges, the Supreme Court shall be the authority to select and recommend a candidate. As in the case of appointment of High Court judges, selection should be made taking into consideration of the candidate’s honesty, integrity and expertise in law. The expertise in the field of law shall be demonstrated by cases in which he/she appeared and argued (in case the candidate is a lawyer) and the cases he/she have decided (in case the candidate is judge of the High Court. Name of the candidate so selected should, then be forwarded to the Union Government, with a statement of reasons for recommending the candidate, for verification of the candidates of their antecedents and allegations if any, including charges of corruption, affiliation to any particular political party or religious groups which should be considered as a disqualification to be appointed as judge. At the same time the recommendation and the state of reasons by the Supreme Court for the recommendation should be made public.
The Union Government shall follow similar procedure that the State Government follows in appointment of High Court judges. In case the Union Government decides to refuse to approve the candidates recommended by the Supreme Court, it shall be binding on the Supreme Court unless reversed by the Supreme Court in judicial review. As in the case of the selection of High Court judges, the bench reviewing the executive decision shall not consist of any judges who were part of the collegium that recommended the candidate’s name to the Union Government.
On approval of the Union Government or on the Supreme Court revising the refusal of the Union Government, the list of candidates should be forwarded to the Parliament of India for its consideration and deliberation. Both houses of the Parliament should deliberate the candidature recommended by the Supreme Court and approved by the Union Government and forward their decision taken by simple majority to the President of India.
The voting before the state legislature and Parliament should by secret ballot and the anti-defection laws should not be applicable in the case of such voting. As in the case of any other legislative decisions, the President shall have the power to return or accept the recommendation of the legislature. At each stage of the process all the documents, including the documents relied on by the judiciary, executive and legislature to recommend and approve candidature of a particular person, should be made public.
By providing the exclusive authority to recommend candidates for the appointment and the power to judicial review of the executive decision shall maintain the primacy of the judiciary in the entire process. At the same time, the review by the executive and deliberation by the legislature would ensure that the recommendation made by the judiciary is not faulty. Finally, by making all documents and decisions related to appointment of judges public, the people of this country in whom the ultimate powers rests will have all information and knowledge about the appointments of the judges.
I am not oblivious of the ground realities existing in India. It would not be that easy as said. It would require lot of deliberation and consultations with legal brains before making amendments to the Constitution to carry out changes in the appointing system as suggested here and ensure that the amendments would not violate principles of judicial independence, separation of powers and basic structure of the Constitution of India. Still, it is possible, if the political leadership of this country has the will. After all, “the process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.”[3]
[1]S.P. Gupta v. Union of India(1981 (Supp) SCC 87), Supreme Court Advocates-on-Record Association v. Union of India((1993) 4 SCC 441), Re: Special Reference No.1 of 1998((1998) 7 SCC 739) are referred to as First, Second and Third Judges case respectively.
[2]Pages 133 to 141 of Fourth Judges Case.
[3]Supreme Court in Second Judges Case
Robin Vrindavanam Sasidharan is a LL.M. Candidate in International Business and Economic Law at Georgetown University Law Centre – USA
The author doesn’t realise that what he is suggesting already exists! Just that the executive is just not taking interest in its role of rejecting the recommended candidates, seeing that it could not get exclusive control over the entire process, which it is has been desperately seeking for more than two decades now! Yes the only new twist would be the legislature. But then what is stopping or has stopped it from discussing recommended names when in session, or when out of it, by some select committee formed by it, even as it can claim privilege over files with the government.