Committing To An Independent Judiciary
“The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life…The Judge has not only to do justice between man and man. He also – and this is one of the most important functions considered incomprehensible in some large parts of the world – has to do justice between the citizens and the State.”– Winston Churchill
Even a despot like Churchill understood the requirement of the complete independence of the judiciary from executive influences – something that the present-day political executive seems to mock by its repeated action or inaction in respect of the appointment of Judges. The theme of the independence of the judiciary being quintessential to the working of our democratic constitution has been emphasized time and again by the Court, and those that have taken a keen interest in the working of the Court. And in upholding the independence of the judiciary, the Court has, some would say, arrogated to itself the power to appoint Judges to the Constitutional Courts, by an interpretation of the supposed spirit of the Constitution, and not its words. The collegium system of appointments is globally the only system by which Judges appoint Judges. The system was devised about a quarter of a century ago in the Second Judges case, and has withstood the test of time despite the severity of criticism faced from the political class, members of the bar, some members of the Bench and commentators in general. After the 2014 general elections, Parliament swiftly passed the 99th Amendment to the Constitution and introduced the National Judicial Appointments Commission – with only one dissenting vote in both Houses. The rare show of unanimity in Parliament was perhaps the strong indication of the political class eagerly wanting to wrest back the power of appointments to the political executive. More than two years after the NJAC Amendment was struck down by the Supreme Court in the Fourth Judges Case, appointments to the High Courts and the Supreme Court have not moved as smoothly as it would be constitutionally desired. However, to not keep the political executive out of the appointment procedure, the Memorandum of Procedure (MOP) for the appointment of Judges was sought to be decided in consultation between the Judiciary and the Government – a decision which has, in hindsight, become a colossal mistake. For, this non-resolution of the MOP has virtually brought the appointment process in several High Courts to a standstill. As the law stands, the Government must make those appointments which are recommended by the Collegium of the Supreme Court headed by Hon’ble the Chief Justice of India. Each may have a view about the Collegium system, but that view ought not to be an escape from the rule of law.
A recent study titled “Judges Appointment – A Ping Pong Game? Is Indefinite Sitting Over The Files Choking The System?” published by LiveLaw has revealed that the Government has virtually been sitting on the recommendations made by the Collegium, apparently for no rhyme or reason. From the story, it is quite clear there are more than 140 recommendations which are in the pipeline and are stuck either with the Supreme Court Collegium or the Government. It is no secret that the Government has been extremely unhappy, and therefore critical of the judgment in the Fourth Judges case. But not being happy with the judgment of the Court can by no means be justification for the Government to not accept the law laid down by the Court. The Government is duty bound to make the appointments that are recommended by Collegium, and not making the appointments would be a serious form of dereliction of duty. The paralysis in the appointment of Judges to the High Courts has had serious repercussions, and the non-appointment of Judges by the Government is moving towards bringing the judicial process to a standstill. As per the vacancy position put out by the Department of Justice on the 1st March 2018, there are 406 vacancies in various High Courts, i.e. about 38%. The Karnataka and Calcutta High Courts have less than 50% Judges. The Bar in Karnataka, Calcutta, Orissa and Gujarat have gone on a strike. Evidently, the situation is very grim. And this is not a situation with which only the Bar should be concerned with. The High Courts in India are empowered with the exercise of the power of judicial review – something which has been reiterated to be a part of the basic structure of the Constitution. The non-appointment of the Judges as recommended by the Collegium of the Supreme Court is a betrayal to the oath of office taken by the Government to preserve and protect the Constitution, and the lack in the strength of Judges at the High Courts is in direct conflict to the rights of the people at the large. And the non-resolution of the MOP cannot justifiably be made a reason. While the pundits write history about the present Government, the biggest failure of the Modi Government will be the manner in which the Government has sought to undermine the judicial wing of our democratic polity. By simply sitting on names recommended by the Collegium, the Government is guilty of afflicting a severe wound on the independence of the judiciary. And this has some very far-reaching impact on the working of our democratic Constitution. About a year ago, the then Chief Justice Khehar disposed of a batch of writ petitions for the filling up of the vacancies in the High Courts on the statement of the then Attorney General that the vacancies were being filled up. Yet, there has not been any significant movement in that direction. Friction between the political executive and the judiciary may not be all that bad, and perhaps a requirement in a vibrant democracy. But it is also no secret that every Government wants to have a favourable and pliant judiciary – what is called a committed judiciary. And this phenomenon is global.
In the 1930s, President Roosevelt sought to implement his New Deal program to tackle the Great Depression. However, Roosevelt soon found that the Supreme Court of the United States (SCOTUS) had become an obstruction in his economic program, as the SCOTUS had employed the Marshallian weapon of judicial review and struck various legislation down. This provoked Roosevelt to find other methods to get his economic policy through and sought to enact the Judicial Procedure Reforms Bill, 1937. This Bill empowered the President to appoint one additional Justice for every Justice over the age of 70 years and 6 months, to a maximum of six Justices. Simply put, Roosevelt wanted to pack the Court with nominees he could rely upon to enforce his economic policy. Fortunately, the Bill died a natural death in the United States Senate and remained from being a global precedent for other elected Governments. Within the first two decades of our Republic, we had our own attempts at Court Packing by the Indira Gandhi Government primarily to further the cause of land ceiling legislation and the economic policy qua property rights. The Indira Gandhi Government faced setbacks in the cases of Golak Nath, Bank Nationalization and Privy Purses, and immediately began packing the Court with nominees who she believed (or her advisers made her believe) would not let fundamental rights hinder her socialist economic programs. In fact, her chosen lieutenant Mohan Kumaramangalam zealously defended the supersession of Justices Shelat, Hegde and Grover in April 1973, for the Government, he said, wanted to appoint those Judges with a forward outlook – those that were committed to the Government’s social philosophy. The Indira Gandhi Government became more arrogant when they superseded Justice H.R. Khanna in January 1977 for his now celebrated views in the Habeas Corpus case. In both the cases, the then Government brazenly attempted to circumscribe the Judiciary’s institutional integrity – but the judiciary withstood. Nani Palkhivala aptly said that the concept of a committed judiciary was an anathema, and that the idea of a committed judiciary was like that of boiling ice cream.
The idea of a committed judiciary seems to be that which the present Government is also romanticizing – they want to implement what the Indira Gandhi Government semi-successfully implemented in the 1970s. They seem to be therefore sitting on the names recommended by the Collegium in an attempt to block those Judges that are thought to be inconvenient to the political executive. The Government, by not carrying out the recommendations of the Collegium has done great damage to our constitutional system, and more so to the rights of the people at large. As per the statistics put out on 01.03.2018, there are 487 permanent Judges in all the High Courts, as against the sanctioned strength of 771, and there are 186 Additional Judges as against the sanctioned strength of 308. It is submitted that till the time the entire sanctioned strength of permanent Judges is not met, no occasion arises to appoint Additional Judges. It is further submitted that to have as many permanent Judges in the High Courts as sanctioned is the right of the people at large, and the action of the Government of sitting on the recommendations made by the Collegium is not only constitutionally immoral, but patently illegal.
As early as 1956, when the 14th Law Commission gave its report on Reforms in Judicial Administration, rang the warning bells of the executive interference in the appointment process, and noted:
“What perhaps is still more to be regretted is the general impression that now and again executive influence exerted from the highest quarters has been responsible for some appointments to the Bench.”
The warning of the Setalvad led Law Commission played out as reality during the 1970s. Some very fine Judges of the High Courts were vindictively treated by the Indira Gandhi Government for quashing detention orders during the Emergency and were punitively transferred to other High Courts or not elevated to the Supreme Court. That vindictive attitude of the then Government and the repeated political interference in the process of appointment has obviously led the path for the usurpation of the appointment power by the Court in the Second Judges case. Unfortunately, 2014 has become déjà vu, where the Government is continuously undermining the institution of the judiciary. This vindictiveness of the present Government is evident as it has been sitting on the recommendation to appoint Uttarakhand Chief Justice K.M. Joseph and Senior Advocate Indu Malhotra, despite the fact that there are 7 seats vacant on the Bench of the Supreme Court. This tendency of the Government was shown within days of it taking over in 2014, when it blocked the candidature of Senior Advocate Gopal Subramanium perhaps due to personal spite of the high and mighty within Government. The Collegium and the Government are performing a constitutional duty by making appointments to the High Courts and the Supreme Court, and therefore, a mandamus would lie by the Court on the judicial side to Government to make the appointments as recommended by the Collegium. While sermonizing to the judiciary about its exercise of powers, the highest functionaries of Government have left no stone unturned to take unfortunate swipes at the Court, and the judiciary at large for its exercise of powers. Although this is not within the healthy conventions of our democracy, the Court has maintained a dignified silence and creditably so. In the last almost twenty-five years of the Collegium system, the country has not seen such a serious situation in respect of the mounting vacancies and therefore mounting pendency. The blame for the vacancy mess squarely lies with the Government, which is still smarting from the decision in the Fourth Judges case and is determined to block appointments made by the Collegium. The Government may choose to disagree with the outcomes of a decision, but it has no constitutional power, right or morality to disobey the judgment of the Court. While the blame squarely lies with the Government, the Court must step up to issue a mandamus to the Government to make the appointments of those recommended by the Collegium. It is also incumbent on the judiciary, who has played the role of upholding the Constitution, to assert itself, and not allow the political executive to challenge its authority in the matter of appointments. The independence of the judiciary, and its institutional integrity are a sine qua non to the rule of law. And the Government must be held accountable to committing to an independent judiciary.
Amit A. Pai is a lawyer practicing at Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
 As quoted in the 14th Report of the Law Commission, Volume I, Page 41.
 Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441
 Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC 1
 Order dated 20.03.2017 in Lt. Col. Anil Kabotra v. Union of India, Writ Petition (C) No. 625 of 2016
 I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762
 R.C. Cooper v. Union of India, (1970) 1 SCC 248
 Madhav Rao Scindia v. Union of India, (1971) 1 SCC 85
 A Judiciary Made to Measure, Edited by Nani Palkhivala, Page 58.
 14th Report of the Law Commission, Volume I, Page 34.