In October 2015, when a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Committee Act, 2014, the court directed that it could supervise a process to improve the Memorandum of Procedure for the appointment of judges, so as to address concerns with the collegium system.
Accordingly, the case was listed for further hearing in November 2015, and all stakeholders, including the government, advocates, civil society organisations, and ordinary citizens were invited to give suggestions. The order dated December 16, 2015, has a painful retelling of the sequence of events over the next month and a half. What could have been a truly inclusive process to reform appointments to the higher judiciary was nixed by the government.
Background
Some historical context first: The collegium system, by which the senior-most judges of the Supreme Court would form a collegium that recommends names for appointment as judges of the High Courts and the Supreme Court was devised by the Supreme Court in the 1990s. The Union Law Minister claims that no other country has such a system of appointment of judges, which is true. However, its preferred solution — vesting the right to appoint with the government — has also proven to be antithetical to democracy, if not dangerous.
Take the United States of America, where the President nominates, and the Senate appoints, the judges of the Supreme Court. During Donald Trump’s presidency, three life-time vacancies were filled with judges with strongly conservative leanings, giving the court a conservative majority for the foreseeable future.
The United Kingdom, on the other hand, has a judicial appointments commission, and for appointments to the Supreme Court, an independent selection commission is formed when vacancies arise. However, unlike the NJAC, the commissions in the UK do not have government representatives. In the NJAC, the law minister would be one of the members of the committee, and two others would be eminent persons to be appointed by a committee consisting of the Prime Minister, the Chief Justice, and the Leader of Opposition. An earlier version of the Bill said that if two of the members dissent, then a nomination could not go through.
If the constitutional role of the higher judiciary is predominantly to keep a check on the executive and the legislature (through its writ jurisdiction), then it hardly needs arguing that the government should have no role in the appointment of those persons who are to apply such a check.
The argument that judges are not appointed by popular vote (or those who have earned the popular vote) also does not hold water as the role of the judiciary is limited to keeping those elected through popular vote within the limits of their constitutional obligations.
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The December 2015 order records that the government first participated in several hearings regarding evolution of the Memorandum of Procedure to be followed in judicial appointments. Many of the topmost legal brains of the country, as well as the then Attorney General, Mukul Rohatgi, made submissions in the case. Due to the enormity of the response, the court entrusted two respected senior advocates, Aravind Datar, and Pinky Anand (then Additional Solicitor General) to compile all the responses. The website of the law ministry was offered to host the compilation of suggestions towards this exercise. About 11,500 pages-worth of suggestions (showing, if nothing else, the level of public participation) was received.
The suggestions included measures to improve transparency in appointments process, including recording of minutes and dissents in collegium proceedings, a secretariat to manage the system (including keeping track of upcoming vacancies, and prompting the decision-makers to fill them up in a timely manner), a complaint redress mechanism, and so on.
However, on the date of hearing, the government took a complete U-turn, with the Attorney General informing the court that the Memorandum of Procedure has been traditionally been drawn up by the government of the day in consultation with the President, and the Chief Justice. The court immediately backed off, and the entire exercise died a silent death.
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The fact is that even the opponents of the government appointing judges are unhappy with the collegium system due to its lack of transparency, and how it concentrates a lot of authority in a small number of senior judges. Representation is another problem. For decades, India has had only one — and for short interludes, two — Muslim judge on the apex court. Similarly, the proportion of Dalits and tribals who have made it to the top judicial positions are disproportionate to their actual population. Women continue to be ignored — even though the top court has three (out of a total strength of over 30), most new appointments in the High Courts, are still men.
But if we thought the solution was to allow the government to make appointments, then one only needs to look at the functioning of tribunals. The government makes the appointments to statutory tribunals, and it is safe to say that almost all fears regarding governments appointing judges can be seen in the functioning of these tribunals.
Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal, and do not represent the stand of this publication.
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