Judicial Appointements: A Pragmatic Approach

I. Introduction

The constitution creates three major instruments of power for the smooth functioning of any democratic country, namely the Legislature, the executive and the judiciary which perform three essential functions of rulemaking, rule application and rule adjudication respectively. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without crossing their limits. The three pillars of democracy derive their power from the constitution and therefore it is the constitution which is supreme and not the other way round.^[1]

The matter of appointments of judges as well as of Chief Justice of the higher judiciary is of utmost importance at national and international level both. It is well recognised principle that while appointing the judges and Chief Justice for the courts, one must guarantee the balance between judicial independence and judicial accountability.

The suggestion for a National Judicial Commission has been made by the 80th Report of the Law Commission of India and the 121st report of the Law Commission of India.^[2]

"Corruption was widespread in the judiciary," said the annual Country Reports on Human Rights Practices for 2013 by US secretary of state John Kerry. So, the step towards establishing the Judicial Appointments Commission will definitely try to curb the corruption which is rampant in the judicial system by ensuring transparency and accountability in the appointment process.

The research study is divided into four main parts. Firstly, the ‘collegium system’ is suffering from biasness and the proposed Indian model of the Judicial Appointments Commission (hereinafter, referred as JAC) is therefore a novel shift into an institutional niche allowing for a transparent collaborative process between the executive and the judiciary^[3] ; secondly , international move on judicial appointments which require a separate body for the appointment process^[4] ; thirdly, analysis and key issues of the Judicial Appointments Commission Bill; fourthly, the interpretation of basic structure.

II. Indian system on Judicial Appointments

Currently, the appointment of judges to the Supreme Court and the High Court is provided for, under Article 124(2) and Article 217(1) of the Constitution of India, 1950.

The process of appointment of judges is being made through the “collegiums system”,^[5] the system although doesn’t find the mention in the Constitution of India, was created with the justification to insulate the judiciary from executive interference.^[6] But in reality, this system may be called as “judges appointing themselves”. It implies the de-facto judicial supremacy in the appointment process.

The Supreme Court by various judgements has enacted that the seniority should be the criterion for appointing Chief Justice.^[7] It affects the constitutional provisions regarding appointment of judges.

Former Delhi High Court Chief Justice AP Shah says "Our current appointments system is out of step with democratic culture primarily because it lacks transparency,

and provides for no oversight.” This Collegium system is an opaque and non accountable system as the judges are not responsible for giving reason for the appointment of a particular person. Keeping the system of appointment of judges within the four walls of Collegium, it has given rise to the issue of favouritism and biasness. It clearly shows that Court has become self-perpetuating institution acting without the legal authority. The protocol of democracy does not require the concentration of power in the single authority.

In authors’ opinion, quality should have been the sole criterion in the matter of appointment of judges and Chief Justice. If it does not so, then it will hamper the dignity of judiciary.

The Supreme Court in case of In Re: Presidential Reference,^[8] said , “Merit is the predominant consideration for the purpose of appointment to the Supreme Court. The question of seniority would arise only in the cases of equally meritorious, and that nothing prevent the collegiums from selecting an outstanding person from down below after recording the fact.”

If executives are made the part of JAC for appointing judges, it will enable equal participation of judiciary and executive, make the system of appointment more accountable and thereby increase the confidence of the public in the institution.

III. An International Move on Judicial Appointments

International Institutions has also laid down some basic principles in order to strike balance between judicial independence and accountability.^[9]

The First Principle of UN Basic Principles on the Independence of the Judiciary says:

“The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary”.^[10]

It further establish that:

“Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.”^[11]

Governance of Britain also focuses on setting up of an independent body for the appointment i.e. judicial appointment commission.

The Universal Charter of the Judge stipulates that: “The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification”.^[12]

Commission on Democracy through Law^[13] on the ‘Independence of Judiciary’ is more nuanced, providing that, although merit is the ‘primary criterion’:

“Merit is not solely a matter of legal knowledge analytical skills or academic excellence. It also should include matters of character, judgment, accessibility, communication skills, efficiency to produce judgements, etc.” (paragraph 24).

Paragraph 26 provides that:

“Diversity within the judiciary will enable the public to trust and accept the judiciary as a whole. While the judiciary is not representative, it should be open and access should be provided to all qualified persons in all sectors of society”.

Further, it was argued that “It is safe to say that systems of judicial self-appointment are on the decline. Clearly they provide maximum independence for the judiciary as a whole. But, as reflected in the criticism of the Japanese judiciary noted above, individual judges may be less independent. Furthermore the system is seen as providing very little accountability. Many of these judiciaries have become extensively involved in politics in ways that can undermine their own legitimacy.”^[14]

Judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability. Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline.^[15]

IV. Analysis and Key Issues of the Judicial Appointments Commission Bill, 2013

1. The idea of method of appointment through JAC has been enunciated by the Law Commission of India as well as various other countries. It was argued that India is the only democracy where judiciary is trying to isolate from the other branches of government in the matter of appointment which is otherwise not possible since, the concept of ‘Separation of Powers’ is not followed in the strict sense in India.

2. The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial Appointments Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission are provided in the JAC Bill.

The parliamentary panel had said: “The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the collaborative and consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary.”^[16]

3. The JAC shall comprise: (i) the Chief Justice of India (CJI), (ii) two other senior most judges of the Supreme Court (SC), (iii) the Union Minister for Law and Justice, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.

A much clarification is needed on the issue that whether the President is bound to follow the recommendation of JAC or not.

3. This constitutional amendment making the Bill obligatory for both the Houses of Parliament to consider the suggestions made by the JAC for appointment of higher judiciary,^[17] which will let people know about the appointment process.

4. Clause 2 of the Article 368 prescribes that to amend the Chapter IV of Part V i.e., The Union Judiciary, the Parliament requires two-thirds majority as well as the ratification by the legislature of not less than one-half of the States, by a resolution to that effect passed by those legislatures, before the Bill making provision for such amendment is presented to the President for assent.^[18] So, it is suggested that constitutional status must also be granted to the composition of JAC which is prescribed under Clause 3 of JAC Bill, 2013 so as to secure it from extraneous factors of legislative will.

5. JAC Bill has a direct bearing upon the doctrine of checks and balances. Further, it has been clearly mentioned in the JAC Bill that the commission would be chaired by the Chief Justice of India which ultimately serve the purpose for ensuring the independence of judiciary.

6. Clause 10 says, “No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in, or defect in the constitution of, the Commission.” It clearly leaves out the scope for executive interference if there is absence of any member from judiciary or vice-versa which will operate against the basic objective of the Bill.

So, it is suggested that in order to ensure equal participation of executive and judiciary, this clause should be modified with an explanation or it should be annulled in toto.

7. Clause 4 (c) says, “It shall be the duty of the Commission, to ensure that the person recommended is of ability, integrity and standing in the legal profession”^[19] which shows that the intention of legislature is to make the process more accountable. The accountability of the judiciary to the country is very important. The people must be aware of the appointment process and accountability can be fostered through the proper process of selection.

8. The JAC will work within the stipulated period of time as it has been mentioned in the Clause 7 which talks about reference to commission for filling up of vacancies.^[20]

9. The entire process under the JAC will be aimed at ensuring transparency. It has been suggested that the entire record of the process must be publicly disclosed. "They should hold a meeting and it should be televised so that all people in India can see it and there is total transparency. They should call the prospective candidate and ask him questions about his earlier functioning as a High Court judge and also his personal life, as is done in the United States," recommended Katju.^[21]

IV.1 JAC: In the mirror of the independence of Judiciary

JAC Bill prescribing the appointment of judges by Judicial Appointments Commission does not violate the independence of judiciary since it is necessary to design a mechanism which will free the appointment of judges from traditional ways and adhere it into the constitutional spheres.

Independence of judiciary doesn’t contain only the matter of appointment rather the Indian Constitution has ensured independence of judiciary by protecting salaries and service conditions of judges, ensuring security of tenure of judges, providing single judiciary etc.

Balance of independence and accountability is correlated, respectively, to what we call a judiciary’s courage and integrity. But, there are certain limits to the doctrine of independence, because the Judiciary, being only one of the limbs of the State, cannot claim to act in isolation.^[22] Appointment by the executive, of itself would not impair judicial independence, provided, after such appointment, the executive has no scope to interfere with the work of a Judge.^[23]

Seervai contended that, “I do not share the view that the executive should have no say in the appointment of judges. In the United States, the President appoints judges to the Supreme Court subject to confirmation by the Senate. In England, the Crown appoints High Court judges on the recommendation of the Lord Chancellor, and appoints Lord Justices of Appeal and Lords of Appeal in Ordinary on the recommendation of the Prime Minister. Such evidence as there is shows that the security for the appointment of good judges lies not in the nature of appointing authority but in the sense of duty of those charged with making the appointment and in a vigilant public and professional opinion.^[24]

Palkhiwala also said, “The principle of appointment of Judges by the executive does not impair judicial independence, so long as the executive makes no attempt to select ‘committed Judges in order to get judgments favourable to the party in power.^[25]

In India, legislature makes the laws, executive enforces them and the judiciary interprets them. Their functions sometimes may be overlapping. The President is a part of Parliament under Article79 of the Constitution, the executive power of the Union is vested in him under Article 53(1) of the Constitution and he appoints Judges of the Supreme Court under Article 124(2) etc. In the same manner, the Governor is a part of the Legislature of the State under Article 168(1) of the Constitution. Thus, we see all the three organs cannot work independently. It cannot be said that they are destroying basic structure of the Constitution by performing their overlapping functions.

In F. Ghouse Muhiddeen v. The Government of India,^[26] the HC said, “The Court must recognise the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the Legislature and the Executive are expected to show due regard and deference to the Judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of 'checks and balances' inherent in such scheme."

In Krishnaswami's case,^[27] in para 67 at p. 650, it was observed that "to keep the stream of justice clean and pure the judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of rule of law and the working of the Constitution itself.”

High calibre, untainted judges, it was recognised, were by no means the only requirement for providing the quality of justice necessary for society to be democratic and equitable.^[28]

In this context, the Law Commission of India, in its 14th report in 1956 had observed that: “For the performance of the duties of Chief Justice of India, there is needed, not only a judge of ability and experience, but also a competent administrator, capable of handling complex matters that may arise from time to time, shrewd judge of men and personalities and above all, a person of sturdy independence and towering personality who could on the occasion arising be a watchdog of the independence of the judiciary.”

The appointment of the judges of the Supreme Court and High Court is of paramount importance because what they decide is law that binds the people of the country.

V. Interpretation of ‘Basic structure’ doctrine

In Kesavananda Bharati v State of Kerala ^[29], the court assured for itself, a new and impregnable role in the constitutional policies of India. By establishing the “basic structure” doctrine, the court made it clear that whatever the intention of the constitutional makers regarding the checks and balances in the democracy system, the final says belonged to the judges.

The atmosphere in which case was decided has been described as “poisonous” by Granville Austin. He states of the case:^[30]

“The Bench’s glory was in its decision, not in the manner of arriving at it, which reflected ill on itself and on the judiciary as an institution. The hearing consumed five months. The judges’ deliberation process was bizarre. Their individual opinions were chaotically articulated. As Justice Chandrachaud understatedly put it, the case was ‘full of excitement and unusual happenings.”^[31]

C.J. Sikri held that every provision of the Constitution could be amended provided that the basic foundation and structure of the Constitution remained the same. Ray said further that no distinction could be made between essential and inessential features of the Constitution; all were essential.^[32]

In summary, the majority verdict in Kesavananda Bharati^[33] recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure, which it did not define, except illustratively and is a vague concept. But there was no unanimity of opinion about what appoints to that basic structure.

As Madhu Limaye put it, ‘what weighed with judges was both apprehension about the future of liberty as well as their own natural desire to save and protect their own power and jurisdiction.’^[34]

In ADM Jabalpur v. Shivkant Shukla ^[35], it was held that there would be suspension of article 21 during the emergency and all rights as the right to move for a writ of habeas corpus would be seized during such time period. Hence, the court again proved that they are not even concerned about the basic human rights and laws of natural justice.

In the K.K. Dutta v. UOI ^[36], the constitutional bench challenged the Administrative Tribunal Act which was enacted in 1985 on the ground that it took away judicial review which was the basic structure of the constitution. It proves that many a times, rather than focusing on other important issues in the cases which are of public importance, the court just took into account only those matters by which it can upgrade itself. Also, it succeeded in doing so as there is no concept of accountability and transparency.

In the case of S.P. Sampath Kumar v. Union of India ^[37] , the Supreme Court held that the decisions of the tribunals shall not be the subject to the writ jurisdiction of the High Courts. As a result, after some time, when the Supreme Court was flooded with special leave petitions against decision of the tribunals, it again had to take back its earlier decision in the case of Chandra Kumar v. Union of India and Others^[38].

In the case of Indira Gandhi v. Raj Narain^[39], again the question of the basic structure doctrine arose. Court held that: “the doctrine could be applied only to the amendments to the constitution and not for ordinary legislation. But in reality, an ordinary legislation would be unconstitutional either if it violates a fundamental right or if it passed without the legislative competence over the subjects of offends the specific articles of the constitution.”

Later, in the case of Ismail Faruqui v. UOI^[40], the basic structure doctrine was again restored in order to invalidate an ordinary legislation dealing with demolished Babri Masijd, namely the Ayodhya (acquisition of certain Areas) Act, 1993. This proves that the Court itself was not aware of its judgments. As there was no check and balance on it, the judiciary was acting on its free will.

Hence, from the year of 1973, the concept of basic structure is still not conclusive for the interpretation of this, remains a concept vast enough to be termed as vague. It is required for the judiciary to follow inter-institutional approach for good governance.^[41]

VI. Conclusion

The way-out for this presently projected predicament can be sought through several conduits. First and foremost expedient way is by qualitative reforms, which can rectify the misalignment between the judicial independence and accountability. When judicial appointments are made through ‘collegium system’ these reflect the idea of ‘democratic deficit’. Here lies the potential dilemma intensely asking for the rectification. Another mechanism for increasing accountability is to facilitate judicial transparency. To make this work, the judicial appointment process should be open, with candidate names and qualifications being made public. Further, to ensure the transparency as well as to put checks and constraints over graft practices, State should employ various NGOs, legal luminaries as well as social workers, who would strongly vocalize and tender their opinion during the appointment process.

Judicial Appointments Commission Bill does not violate the independence of judiciary. In India, the notion of “rigid separation of powers among prominent pillars of a state” holds less regard and the “flexible approach” is given sound regard. Moreover, it becomes utopian to assert that any one organ of the government would be self sufficient in itself and can work in isolation since it goes against the very essence of the Constitution.

The JAC model in itself is constitutionally justifiable. The proposed Bill and Amendment however need some watershed amends. The issues which resolutely need to be worked upon are manifold like: an amendment by simple majority, lack of constitutional entrenchment for the composition of JAC, inadequately specified functions and operations of the JAC need some clarification in order to ensure judicial accountability along with the judicial independence.

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^[1] Golaknath v. State of Punjab , AIR 1967 SC 1643 , ¶ 15.

^[2] Shukla Mona., Judicial Accountability: An Aspect Of Judicial Independence, in Judicial Accountability 83 (2nd ed ., 2010).

^[3] Centre For Law And Policy Research, Working Paper No.1/2014, Recasting The Judicial Appointments Debate: Constitutional Amendment (120th Amendment) Bill, 2013 And Judicial Appointments Commissioner Bill, 2013 14 (2014).

^[4] The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development, Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, para. 27

^[5] In 1998, the Supreme Court, while delivering its opinion on the presidential reference under Article 143 of the Constitution, recommended that for appointment of judges to the Supreme Court, the collegium should consist of the Chief Justice of India and four (not two) of the senior most judges of the Supreme Court, which will appoint the judges in the higher judiciary.

^[6] The Supreme Court in S.P. Gupta v. President of India, AIR 1982 SC 149 held that the executive would appoint the judges in ‘consultation’ with the Chief Justice rather than in ‘concurrence’. But later in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441; Court came to the conclusion that ‘consultation’ would mean ‘concurrence’ or ‘consent’. Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and the same is being followed for appointment.

^[7] Supreme Court Advocates-on-Record Association v. Union of India, ( 1993) 4 SCC 441.

^[8] In Re: Presidential Reference, AIR 1999 SC 1.

^[9] It is almost accepted proposition of law that rules of customary international law which are not contrary to the Municipal law shall be deemed to be incorporated in the domestic law, PUCL v. Union of India, 995 SCC, Supl. (2) 572 JT 1995 (3) 365. Further, in Vishakha v. State of Rajasthan (1997) 6 SCC 241, Court said, “International Conventions can be taken into consideration to promote the object of the Constitutional guarantee.”

^[10] United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Hereinafter, UN Basic Principles.

^[11] In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory; UN Basic Principles on the Independence of the Judiciary, art. 10.

^[12] Universal Charter of the Judge, art. 9.

^[13] The Venice Commission report.

^[14] Judicial Appointments and Judicial Independence , United States Institute Of Peace (January 2009).

^[15] Id., at 4.

^[16] Venkatesan J., Cabinet clears constitutional status for Judicial Appointments Commission, The Hindu (December 26, 2013), http://www.thehindu.com/news/national/cabinet-clears-constitutional-status-for-judicial-appointments-commission/article5504171.ece (last accessed: October 2, 2014).

^[17] The National Judicial Appointments Commission Bill, 2014, cl. 13.

^[18] Constitution of India, 1950, art.368, cl. 2.

^[19] Supra note 17, cl. 5, sub-cl. 2.

^[20] Id., cl. 4, sub-cl. 2.

^[21] Kumar Ruchi, 7 Key highlights of the Judicial Appointment Commission Bill, DNA INDIA (July 29, 2014), http://www.dnaindia.com/india/report-7-key-highlights-of-the-judicial-appointment-commission-bill-2006323 (last accessed: October 2, 2014).

^[22] Gupta v. President of India, AIR 1982 SC 149.

^[23] Id., at 1016, 1025.

^[24] Seervai H.M., Constitutional Law Of India 2618 (4th Ed., 2008).

^[25] Palkhivala, Our Constitution Defaced And Defiled 99-103 (1974).

^[26] AIR 2002 Mad 470.

^[27] (1992) SCC 605.

^[28] Granville Austin, Working A Democratic Constitution 138 (2010).

^[29] AIR 1973 SC 1461.

^[30] Austin, supra note 16, at 258, 259.

^[31] Justice Chandrachud Y.V., The Basics Of Indian Constitution: Its Search For Social Justice And The Role Of Judges, 17 (1989).

^[32] Austin, supra note 16, at 266.

^[33] AIR 1973 SC 1461.

^[34] Limaye Madhu, Janata Party Experiment 57 (1994).

^[35] AIR 1976 SC 1207.

^[36] (1993) SCC 119.

^[37] AIR 1987 SC 386.

^[38] AIR 1997 SC 1125

^[39] AIR 1975 SC 1590.

^[40] (1994) SCC 376.

^[41] The Supreme Court had already widened its jurisdiction, giving substantive remedies which were legislative in nature as evident from Vishaka v. State of Rajasthan, (1997) 6 SCC 241.