The recent tug of war, between the Executive and the Judiciary, over the procedure for appointing judges to the constitutional courts has reignited old issues: Who should appoint the judges to the constitutional courts? What is the role of the Executive in such appointment? Is such appointment to be controlled by the Judiciary? Should we have a National Judicial Appointment Commission (NJAC), or should we continue with the Collegium system, where Judges recommend the appointment of judges to the Constitutional Courts?
While arguing these issues, both the Executive and the Judiciary are presenting half baked dishes. The Executive claims that it has no role in such appointment, a claim far from the truth. The Judiciary claims that any interference by the Executive in the appointment process would undermine the independence of the judiciary: a misplaced claim.
It is time the bluff from both the branches is called off. The issues are too serious to be left to political shadow boxing. These issues require deep introspection and concrete solutions. For, the answers would shape the future for our nation.
Judicial appointments: Executive’s hefty role
Both law and facts reveal the substantive role played by the Executive in appointment to the constitutional courts. Both Articles 124 and 217 of the Constitution, dealing with the appointment of Judges to the Supreme Court and High Courts, respectively, prescribe that the judges shall be appointed by the President.
In the appointment of a judge to the Supreme Court, the file is sent to the Union Law Ministry, the report of the Intelligence Bureau (IB), and now of the Research & Analysis Wing (RAW), is called for, and the government is free to express its disagreement with the name so recommended. At times, the government has either rejected the names recommended by the Collegium, or has sat over the recommendation till the prospective candidate is so exhausted from waiting in the wings, that he or she withdraws the name from being considered.
Thus, both overtly, and covertly, the Executive does play a vital role.
Even Chief Ministers Have Their Say
Similarly, in appointments to the High Court, the recommendation goes through numerous screening processes. The name is initially sent to the Chief Minister of the State, his/ her comments are called for; it is subsequently, sent to the Governor, for his/ her comments. Before the Law Ministry sends the names to the Collegium of the Supreme Court, the Ministry calls for a report from the IB and now RAW.
After the recommendation is made by the Supreme Court Collegium, the recommendation is examined by the Prime Minister’s Office. Eventually, the recommendation is placed before the President. Instances are not lacking where the President has expressed doubts about the recommendations. Having gone through different sieves, the warrant for appointment is finally issued by the President.
Hence, it is a misconception to claim that the government has no role in the appointment of judges. The Government is neither a mute witness, nor a rubber stamp, nor acts as a post office while dealing with the recommendation of the Collegium. In fact, the government plays a crucial and a pivotal role.
Does Collegium Really Ensure Judiciary’s Independence?
It is equally an uncertain claim that the Collegium system ensures the independence of the Judiciary. There is no verifiable data to buttress this claim. Enveloped in secrecy, dependent on unknown criteria, the Collegium system is criticised for its opaqueness and lack of accountability. According to critics, the system suffers from arbitrariness, from nepotism, and from doubtful decisions. In fact, at times, its wisdom is doubted both from within and without the Judiciary.
The Collegium system should be reformed if the faith of the people is to be maintained. The criteria for selection of the candidate should be spelt out. Is it just seniority, or merit? If it is the latter, then how should it be analysed? Is regional representation crucial or not?
If regional representation is fundamental, then why certain regions/ High Courts are over-represented? Reasons for selection and for rejection should be spelt out. More transparency and accountability should be introduced.
Bipartisan Appointments Commission Will Work Best
In order to safeguard the Judiciary from unnecessary criticism, perhaps the constitution of a Commission is the best solution. For creating such Commission, we have the American, the English and the South African models before us.
Even if we do not wish to imitate others, we should have a Commission consisting of the CJI, two senior most Judges of the Supreme Court, the Law Minister or a representative of the Government, the leader of the Opposition, or the leader of the largest opposition party in Parliament. However, the veto power should be only with the Judges in the Commission. This would ensure the independence of the Judiciary, a basic structure of our Constitution.
Instead of hurling stones at each other, the Executive and the Judiciary should brainstorm over these issues. The ultimate goal should be to safeguard the independence, the strength and the power of the judiciary. For, a weak judiciary endangers both democracy and the rule of law.
Justice RS Chauhan (Retd.) was Chief Justice of the Telangana and Uttarakhand High Courts. Views are personal and do not represent the stand of this publication.
