Like Banco’s ghost, some issues in our polity keep coming back to haunt us. Appointing judges to the High Courts and the Supreme Court is one such issue. It has become a bone of contention between the Executive and the Judiciary, where both refuse to blink. This stand-off must be resolved at the earliest, as we are badly understaffed in higher judiciary. We have 24 high courts which should be manned by 1091 judges. Here, nearly 470 positions are vacant. Given this, we can’t afford to hold up appointments to high courts and the Supreme Court.
The government flexes its muscle
The latest in the series of bouts between the Judiciary and the Executive/Parliament is the announcement by the Modi government that it has asked the Intelligence Bureau (IB) to carry out a ‘more stringent’ background check on all names recommended by the collegium for promotion.
This decision comes at a time when both the Supreme Court collegium and the Modi government are refusing to yield on many contentious issues in the draft Memorandum of Procedure (MoP), which would guide appointments to the higher judiciary. The government’s latest move would be viewed as strong-arm tactics to get the judiciary to agree to ‘more transparency’ and, possibly, more voice for the government on such appointments. The Supreme Court of India under the leadership of Chief Justice T.S. Thakur has decided not to accept any of the suggestions made by the Modi government to the draft MoP, including the clause that will allow the government to reject any recommended name on grounds of national security.
The new guidelines
As part of the new guidelines, the IB has been told to scrutinise each and every name recommended by the collegium ‘more carefully’, so that nobody of questionable integrity is appointed. So far, the IB was simply being asked to carry out cursory background checks, with even the bio-data of lawyers recommended for elevation, not always being provided to the agency. This has drastically changed now. The union government is already scrutinising ‘more carefully’ the recommendations made for elevations to the Allahabad High Court, Delhi High Court, Punjab and Haryana High Court and Chennai High Court.
The government has asked the IB to vet each name more carefully, look into any issue concerning integrity or character so that no undesirable person is appointed. Also, the government has decided to give more weightage to the inputs send by the IB, which has been told to send more detailed reports, especially in case of names where it raises a red flag. In cases where the IB gives a negative input, the government will refer the matter back to the collegium for reconsideration.
Most important, the IB has been asked to take a detailed look at the ‘links’ of the names recommended, with sitting or retired judges. The government has learnt that in many cases, lawyers’ names are recommended only because they were earlier working in the chambers of sitting or retired judges of high court or are related to judges. This automatically led to undeserving persons becoming judges, because there was not a more stringent check on the part of the IB. In other words, the government has decided to be ‘more proactive’ while dealing with all recommendations. One example should suffice. Sometime back, the Union government questioned the continuance of six judges – one has retired since –of Punjab and Haryana High Court in the Rajasthan High Court. It is learnt that the government indicated to the Supreme Court collegium that it was not advisable to have six judges from the same high court at another high court.
The above details bring to light the tension brewing between the Judiciary and the Executive. Such tensions are not advisable for the health of Indian democracy. The latest stand-off is the rejection by the CJI (Chief Justice of India) of the official proposal that a committee of retired judges be set up to vet the applications for appointments to the higher judiciary. Such a committee of retired judges may not be immune from government pressure, and hence the CJI was right in rejecting it.
This doesn’t, however, mean all is well with the collegium method of appointing judges to the higher judiciary. The collegium system came in vogue in 1993 and is functioning till today. This is a unique system nowhere to be found in any democratic country, where the judges appoint their brother judges.
It would be instructive to note how other democratic countries appoint judges to higher judiciary. In the USA, the judges to the Supreme Court are chosen by the President, but these names have to be ratified by the Senate. In UK, all high court judges are appointed by the Crown, on the advice of Lord Chancellor, who usually consults the Prime Minister. In Australia and Canada, the system is almost identical, where the judges are appointed by the Governor General-in-Council. In Germany, judges of the Federal Court of Justice (the highest court) are picked by the Judges Election Committee that comprises the secretaries of the justice from each of 16 states, and 16 members appointed by the Federal Parliament.
From 1950 to 1993 our President used to appoint judges to higher judiciary. But this was done on the advice of the Prime Minister. In 1993, our Supreme Court evolved what is known as the ‘collegium system’, which is headed by the CJI and four senior-most judges of the Supreme Court.
Despite the collegium system, some bad apples made it to the bench. Just recall the case of Justice Soumitra Sen of Calcutta High Court. Justice Sen was appointed in 2003 and had to go in 2011. Were he not to resign at the last moment, he would have been impeached. He was forced to resign as there were charges of financial irregularities against him. One could quote few more such examples to show that the collegium system is not fool proof.
Replacing the collegium?
This is why a hue and cry was raised against the collegium system, and rightly so. This is why the Executive tried to rein in the Judiciary by passing the National Judicial Appointment Commission (NJAC) Act in 2014. The NJAC tried to replace the collegium system, which was and is highly opaque and functions without any transparency and accountability. The NJAC was to become operative from April 2015.
The NJAC was challenged in the Supreme Court on the grounds that it violates the ‘basis structure’. In October 2015, the SC decided by 4:1 majority that the NJAC is indeed ‘ultra vires’, and the collegium system would prevail. Though the NJAC has been made null and void, their lordships must understand the feelings behind setting up of the NJAC. It is quite clear that all is not well with the collegium system. The opacity in the appointment of judges has allowed for covert manipulation. It has also meant that often, the best legal brains are left out of the judicial system. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system. Since these qualities were missing in the collegium system, the government decided to set-up a new mechanism in the form of the NJAC. And hence, in rare camaraderie shown by the political class, cutting across party lines, the Lok Sabha had passed with NJAC Bill with only one MP opposing and 367 supporting. Such unanimity is rare.
Though the NJAC had some flaws and the SC had rightly rejected it, it should not have blindly brought back the discredited collegium system. Under public outcry, the CJI did declare in November 2015 that in future the collegium system would function with more transparency, but what would be done to ensure transparency has not been spelt till today. No wonder the Modi government has decided to involve the IB in a more proactive way. In such a situation, both the pillars of democracy should show maturity and find an amicable solution.
