Manish Tewari | Who should appoint judges?

Deccan Chronicle.  | Manish Tewari

Opinion, Columnists

The Supreme Court has chosen to make public its reiterated recommendations with regard to certain judges whose appointments the government has been sitting on for over five years now. (Representational Image)

An independent judiciary, credible media, autonomous election commission, unshackled Parliament and enlightened executive committed to protecting and preserving civil liberties and fundamental freedoms are the hallmarks of a vibrant democracy.

Both the Vice-President of India and the Union law minister have, of late, mounted a frontal assault on the judiciary. While the former has repeatedly called into question the basic structure doctrine, a judge-made constitutional fiat that puts some features of the Constitution of India beyond the amending powers of Parliament, the latter has been repeatedly assailing the manner in which incumbents to the higher judiciary namely the high courts and the Supreme Court are appointed.

The Supreme Court, in turn, has chosen to make public its reiterated  recommendations with regard to certain judges whose appointments the government has been sitting on for over five years now.

Particularly galling is the case of a Delhi high court lawyer Saurabh Kripal whose candidature is not being processed by the government because of his sexual orientation. It is rather apocalyptic that that his partner, a Swiss national, was  purportedly surveyed by the Research and Analysis Wing (R&AW), an intelligence agency that has a clear external remit and should not be investigating the conduct of even foreign nationals in India.
Article 124 (2) of the Constitution lays down the process of appointment of judges. It states interalia “…Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted.” From 1950 to 1993 it was the executive that appointed judges after due consultations as laid down above.

However there has been an endemic controversy over the formulation “the chief Justice of India shall always be consulted.” In the First Judges case in 1981, Re: SP Gupta, seven Justices of the Supreme Court held by a majority of five is to two that amongst the view of the three constitutional functionaries, the opinion of the Chief Justice of India did not enjoy primacy over those of the other two in the matter of appointment of judges.

However, 13 years later, a nine-judge bench of the Supreme Court in the 1993 Re:  Advocates on Record reversed its view and reinterpreted the word consultation to mean concurrence of the Chief Justice in the matter of appointments to higher judiciary. The earlier primacy given to the executive was, thereby, negated.

However, there was a sweetener added to mitigate the radical reinterpretation of the word, consultation, “The opinion of the Chief Justice of India did not mean the individual opinion of Chief Justice of India, it meant his opinion formed collectively, that is to say, after taking into account the views of his senior colleagues, ‘who are required to be consulted by him for the formation of his opinion’. Thus the Supreme Court created the “collegiums” system that finds no mention anywhere in the Constitution.

In 1998, the Supreme Court, in an advisory opinion on a reference by the President of India, expanded the collegium for the appointment of Supreme Court judges and transfers of high court judges from three to five in what is colloquially referred to as the Third Judges case.

In 2010, the then UPA government had also introduced and almost passed the Judicial Standards and Accountability Bill (JSAB), 2010, in Parliament only to pull back at the last moment.

That is the way it stayed till August 2014 when the then NDA/BJP law minister introduced the National Judicial Commission Appointments Bill (NJAC) and the 121st Constitutional Amendment Bill to restore balance in the appointment of judges to the higher judiciary. 

The NJAC bill was passed by Parliament with near unanimity. It was ratified by 16 states and assented to by the President of India only to be struck down by the Supreme Court in October 2015 with a 4-1 majority by pronouncing that the judiciary cannot risk being caught in a “web of indebtedness” towards the government. The NJAC judgment is sometimes referred to as the Fourth Judges case.

Perhaps not fully cognisant with the over a thousand-page judgement in the NJAC case and the preceding tomes from 1981 onwards, the current Union law minister ostensibly wrote a letter to the Chief Justice asking for a role for the executive in the collegium system. He subsequently clarified that he had written for the restructuring of the collegium system as enunciated in the Memorandum of Procedure (MOP). There the matter rests currently.

How should then judges be appointed? They should not be appointed by judges themselves for whatever may be the various arguments in favor of this practice it militates against the constitutional principle of separation of powers that lies at the very heart of the doctrine of checks and balances.
The irony is that the legislature that is the expression of the will of the sovereign has no role in the process except when it comes to the removal of a judge and that too through a process of impeachment. There are even constitutionally  proscribed from discussing the conduct of judges in Parliament.

Given that the intricate panoply of legal jurisprudence laid down by nine judges in the Second and Third Judges cases, respectively, as well as the NJAC judgement it is nigh impossible to turn the clock back to Re : SP Gupta with regard to judicial appointments.

An elegant solution, therefore, could perhaps be that Parliament must be given a role in the appointment of judges through a confirmation process.

A joint house judiciary committee must be constituted by bringing about an appropriate Constitutional amendment. The committee should consist of the chairperson of the Council of States, Speaker of the Lok Sabha and two members each from the Lok Sabha and Rajya Sabha respectively (one each of from the treasury benches and one from the Opposition benches) elected by two thirds of the majority of the House present and voting sans the rigors of the Tenth Schedule.  This would ensure a certain level of reaching across the aisle as well.

The casting vote would be of the chairperson of the committee. No judicial warrant would be issued by the President of India unless the judiciary committee clears the appointment of each and every judge after a proper confirmatory hearing.

Some of the functions that were incorporated in the aborted JSAB bill could also be entrusted to this committee. In this manner the executive, through the legislature, to whom they are, in any case, accountable, too, can also exercise a salutary say in judicial appointments.