[This is the full text of speech delivered by Justice Chelameswar at University of Wisconsin]
It is an honour to be present here and interact with the scholars and students of this great university. I was told that I could choose a topic that interests me most; it was, though, with a suggestion that the topic could be “Selecting Judges for a Democratic India” - a topic now widely debated in the academic circles of not only India but also other countries. It is, perhaps, because of the events that took place in the last two years in India. I readily agreed with the suggestion for three reasons: (i) it is a topic of great relevance for any civilized society; (ii) it is a topic now debated very vigorously in India; and (iii) that it makes my assignment a little easier for I was a member of the Bench of the Indian Supreme Court, which recently examined the validity of the Constitution 99th Amendment. Therefore, I had an occasion to examine the matter in some depth.
THE DEMOCRACY AND THE JUDGES:
No two democracies are identical. The only common feature across the board is that lawmakers and law’s executors (the political executive) are chosen periodically by a process of election. Adjudication of the disputes - whether they are among subjects or between the subjects and the Sovereign - has always been an aspect of governance in every form of Government, be it democratic or otherwise. Democracies generally prefer to appoint rather than elect Judges. They are chosen though making that choice varies from country to country. One of the primary reasons for not choosing the process of electing judges is that adjudication is a complex function. A certain degree of knowledge of law and skill in its application is essential for the person who is entrusted with the responsibility of the adjudicatory process. The existence of such knowledge and skill is a matter of assessment to be made by applying some objective tests. The general belief is that such assessment cannot be made dependent upon the views of transient majorities, for they consist largely of minds with no interaction with the discipline of law - either as law makers or enforcers.
Different democracies choose different modes for making such assessment as electing judges. In a legal system, which recognizes the judiciary’s authority to adjudicate the correctness of the administrative action, the adjudicator must obviously be insulated from the possible interference from the executive to ensure an impartial adjudicatory process. Legal systems of countries like US and India, which authorize judicial review – to be more explicit, the judicial invalidation of legislation - a higher degree of insulation is required. These various layers of insulation are provided by certain constitutional norms express or implied. The system of selecting judges, which is not wholly controlled either by the legislative or the executive wing of the State is one of the devices designed to ensure the judiciary’s independence and political neutrality.
The judicial system as it exists today in India is inherited from British. For the record, I may say, the British Parliament in 1861 enacted the Indian High Courts Act authorizing the Crown “by letters patent under the great seal of the United Kingdom” to set up the High Courts of Calcutta, Madras and Bombay. Other High Courts were established in different parts of the country from time to time. They were courts of appeal with jurisdictions over civil and criminal matters to determine the rights and obligations created by various statutes or personal laws etc. Some of the High Courts also had original jurisdiction limited either by territory or subject matter. It is only to be noted that the jurisdiction of the High Courts in the area of public law was very limited. Though an appeal to the Privy Council against the judgments of the High Court was possible in theory, the stringency with which the Privy Council permitted the invocation of its appellate jurisdiction, coupled with the enormous expenditure involved in approaching the Privy Council, made the High Courts effectively the final courts. A Federal Court came to be established under the Government of India Act 1935. It was essentially an appellate court for deciding the correctness of the High Courts’ judgments. It was an institution with a very short life span, for soon it was replaced by the Supreme Court in 1950.
After the attainment of independence and the formation of the Republic of India under a new Constitution, most of the old High Courts continued with some modifications in their respective territorial jurisdiction. Some new High Courts came to be established from time to time. The Constitution of India contains a Chapter incorporating certain fundamental rights. Some are rights guaranteed to individuals; some to citizens; and others to groups of citizens. Article 13(2) of the Constitution declares that the State shall not make any law which takes away or abridges the fundamental rights and any contravening law shall be void. One major change brought about by the Constitution concerning the High Courts’ jurisdiction is that the High Courts are vested with an extraordinary original jurisdiction under Article 226. The jurisdiction is to issue directions, orders or writs including writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The writs are to enforce of any of the rights conferred by Part-III of the Constitution and for any other purpose, too.
THE SUPREME COURT:
The Supreme Court came to be established under the Constitution virtually amalgamating the jurisdictions of the Privy Council and the Federal Court under the Government of India Act, 1935. One distinguishing feature of the Supreme Court is that under Article 32 jurisdiction is conferred on the Supreme Court to issue various writs to enforce various fundamental rights conferred by the Constitution and the right to move the Supreme Court is in itself a fundamental right. The Supreme Court and the High Courts became Constitutional Courts. The declaration under Article 13(2) coupled with the jurisdiction under Articles 32 and 226 confers enormous power both on the Supreme Court and the High Courts. The power enables these constitutional courts to examine the constitutionality of any legislation made either by the Parliament or the State Legislatures, besides the power to examine the legality of any administrative action.
HEDGING THE JUDGES:
One of the elementary requirements of a judicial office in any civilized legal system is that a Judge must be impartial. So long as the duties of a Judge are confined only to examining private parties’ rights and obligations, the appointing authority’s assessment of the proposed judge’s impartiality suffices. This process presumes that the appointing authority acts in good faith. But the moment the judge’s duty takes within its sweep the authority to adjudicate the State’s actions (encompassing all its branches), reliance upon the good sense of the appointing authority (the executive) becomes perilous. Because State also turns out to be a litigant – a leading litigant, at that – before the Judge appointed by it.
The framers have realized the need to eliminate the possibility of the executive gaining absolute control over the appointment process. The Constitution, therefore, incorporated provisions introducing the consultative process. It mandates that the Head of the Executive shall consult the Chief Justice of India and other constitutional functionaries while he appoints Judges to the Constitutional Courts. The Constituent Assembly believed that this requirement would ensure the judiciary’s efficiency and the independence. Article 124 mandates, further, that the President of India shall appoint judges of the Supreme Court after consulting certain High Court judges, too. Article 217 mandates that the President shall appoint judges of the High Courts after his consulting the Chief Justice of India and the Governor of the State concerned. It further mandates that if the President is to appoint a Judge other than the Chief Justice of a High Court, he shall consult the Chief Justice of that High Court as well. The purpose of such consultation was explained by Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee in the Constituent Assembly. “… There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.” There were suggestions in the Constituent Assembly that the Constitution provisions dealing with the appointment of Judges of the Supreme Court and the High Court should enjoin the President to make the appointments only with the concurrence of the Chief Justice of India. Dr. Ambedkar strongly approved the proposal. He was of the opinion:- “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition [Constituent Assembly Debates, 24-5-1949 (Vol. 8, p. 258)]”. (emphasis added) The Constituent Assembly agreed with the views of Dr. Ambedkar. So Articles 124 and 217 contemplate that the President shall make the appointments in consultation with the Chief Justice of India and other constitutional functionaries mentioned in Articles 124 and 217. The semantic significance of the expression “consultation” in the appointment of Judges to the constitutional courts never troubled either the executive branch or the judicial branch of the Government of India till 1977.
THE FIRST JUDGES’ CASE:
In Union of India v. Sankalchand Himatlal Sheth & Another, (1977) 4 SCC 193 (the First Judges’ Case), the Supreme Court examined the capacious ‘consultation’ in the transfer of High Court Judges. The Court held that though the expression ‘consultation’ does not mean concurrence of the Chief Justice of India, the opinion of the Chief Justice is entitled to great weight and “in practice the last word in such sensitive subject must belong to the Chief Justice of India”. 3 of the 5 Judges opined that “if the Government departs from the opinion of the Chief Justice of India, it has to justify its action by giving cogent and convincing reasons for the same”. Taking undue advantage of the decision in the First Judges’ case that consultation does not mean concurrence, the Executive, it is believed, made attempts between 1980 to 1993 to reduce the consultative process to a mere formality with no substance. Though direct evidence is scanty, such an inference flows from the news reports and gets strengthened from the Supreme Court’s judgment in Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 (the Second Judges’ Case).
THE SECOND JUDGES’ CASE:
The only inference that can be drawn from the decision in the Second Judges’ case is that the Executive had not accorded the deference to the Chief Justice’s views in the matter of appointing judges to the constitutional courts. By a strange process of logic, though, Indian judiciary always believed that it would be detrimental to the judiciary’s image and interest to place in the public domain the material connected with the consultative process. The details of the consultative process are always beyond the reach of not only the civil society but also the members of the judiciary, too; strange but true! A Nine-Judge Bench of the Supreme Court in the Second Judges’ Case however reconsidered its earlier view in the First Judges’ case. It was held that the consultation must be real and effective. The majority of the Bench has also held that the Chief Justice of India’s opinion is entitled to primacy in the consultative process. In substance, the judgment has laid down that the Chief Justice’s opinion is final and binding on the executive. It also held that the Chief Justice’s opinion meant the Collegium’s opinion. Justice Verma, the architect of the doctrine of ‘primacy’ and the concept of ‘Collegium’ prophetically cautioned that the consultation process must be undertaken not in the spirit that ‘the winner takes all’ but that an efficient and independent judiciary is appointed. History bears out that judiciary in any democratic country is never completely disconnected from the pulls and pressures of the political process. The Supreme Court’s judgment in the First and the Second Judges’ cases came in two phases of the Republic of India’s history. The first of the two judgments came to be delivered immediately after the end of a proclamation of emergency. It must be remembered that during the emergency (25th June 1975 to 21st March 1977), 16 judges were transferred from their parent High Courts. Most were outstanding judges - judged by their scholarship and integrity. The public perception was that they were independent and therefore inconvenient to the Executive. One of the 16 judges (Justice Sankalchand Himatlal Sheth) challenged his transfer. By the time, the matter came to be heard by the Supreme Court, the emergency came to an end, and the government run by the political party which imposed emergency lost power. Its successor, a popularly elected government formed by another short-lived political party, was perceived to be more liberal in its views. As the irony would have it, the new government itself comprised a good number of persons imprisoned during the Emergency for their political views were believed to be unacceptable to the Government/the political party which imposed emergency. There was a great deal of goodwill the new Government in office enjoyed with the judiciary that dealt with the First Judges’ case. It is worthwhile to mention that even before the judgment was delivered, the Government conceded before the Supreme Court that it saw no constitutionally justifiable reason for transferring either Justice Sankalchand or the other 15 judges. It had already issued orders retransferring the 16 Judges to their parent High Courts.
It is in this background that the Supreme Court laid down that consultation did not mean concurrence. However, the Court was circumspect enough to indicate that though normally the Government should give the greatest weight to the Chief Justice’s views, it must record cogent reasons if it disagreed with the Chief Justice’s views.
On the other hand, in the decade that preceded the Second Judges’ Case (1980 to 1990), the government was run by a political party which commanded almost a mammoth majority in Parliament. Such political strength - coupled with the interpretation placed by the Supreme Court in the First Judges’ case on the expression “consultation” - led to a situation where the Executive started conveniently ignoring the judiciary’s views in the matter of judges’ appointment to the constitutional courts. It annoyed the judiciary and proved detrimental to the public interest. An efficient and independent judiciary was believed to be a causality. As a result, political loyalties did play a role in the choice of the judges to the constitutional courts. The decade during which the Second Judges’ case came to be decided was a decade of political uncertainty. The Government of India was run by coalitions of various political parties. The governments were fragile, and the coalitions volatile. Though legal scholars and political pundits doubted the jurisprudential correctness of the Second Judges’ case, the Government of India never really attempted to seek the judgment’s reconsideration. There was, at a later point, a Presidential reference on the Second Judges’ case: The government sought the Supreme Court to throw light on certain grey areas of the judgment. In that reference (the Third Judges’ case), the Government conceded that it was not seeking a review of the Second Judges’ case. In the first decade of the new millennium, though the political atmosphere continued to be fragile and volatile, not infrequent were the allegations of inappropriate exercise of the power (both at the levels of the Supreme Court and the High Courts) by the Collegia concerned in recommending names for elevation to the constitutional courts. The demand for a more transparent mechanism for choosing judges to the constitutional courts steadily increased from the civil society. The political class saw the demands of the civil society as an opportunity to demolish the system of collegium created by the Second Judges’ case. It explored various politically feasible options to replace the collegium system. On more than one occasion, Parliament sought to amend the Constitution to displace the collegium system and to replace it with a Judicial Appointments Commission. But its efforts did not fructify owing to lack of political will. It was an era of coalition politics.
In the year 2014, the Government of India amended the Constitution – it wanted a National Judicial Appointments Commission (NJAC) to advise the President in the matter of appointment of Judges to the constitutional courts. By the Constitution 99th Amendment Act, Articles 124 and 217 were amended; Article 124-A & B were added. The requirement of the President of India consulting the Chief Justice of India and other constitutional functionaries was replaced with his consulting the NJAC. The relevant portion of Article 124A reads thus:
“Article 124A . National Judicial Appointments Commission.— (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:-
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India – Members, ex officio;
(c) the Union Minister in charge of Law and Justice – Member, ex officio
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People – Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women; Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.” The duties of the Commission were mentioned in Article 124-B, which was also introduced by the 99th Amendment, the relevant portion of which reads thus:
“Article 124-B. Functions of Commission.— It shall be the duty of the National Judicial Appointments Commission to –
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and integrity.”
The amendment - for the first time in the history of the Republic of India - created an opportunity for the civil society to have a say in the matter of judicial appointments: A slot for two members of the civil society was provided in the NJAC. Interestingly – or if you please, ironically, too - that is the only instance in the parliamentary history of India where all political parties unified in their opinion that the Constitution required an amendment.
The Supreme Court, however, found the amendment unconstitutional. In the opinion of the majority of the Bench that heard the matter, such an amendment violated the basic structure of the Constitution. After declaring the 99th Amendment unconstitutional, the Supreme Court thought it necessary “to hear the matter further to consider introduction of appropriate measures, if any, for an improved working of the Collegium System”.
The Court invited suggestions from the Society at large for the improved working of the Collegium System. The suggestions were, infact, received; running into 11500 pages. A Two-Member Committee was constituted by the Court to analyze the various suggestions received and summarize them. The summary placed before it, the Court passed a further order calling upon the Government of India to prepare a Memorandum of Procedure in consultation with the Chief Justice of India to appreciate the various suggestions made by the civil society. The Chief Justice of India had to base his opinion on the unanimous views of the Collegium comprising the four senior-most puisne Judges of the Supreme Court. The Court directed that while preparing a Memorandum of Procedure, the Government should address the following concerns: “
1256.1. Eligibility criteria: The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for the appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.
1256.2. Transparency in the appointment process:
The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the Collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.
In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.
The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.
1256.5. Miscellaneous: The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the Collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.
I believe that the entire episode leading to the judgment of the Supreme Court in the NJAC case is one of the phases in the constitutional history of India. I am only reminded of Prof. Laurence Tribe’s words: “Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos, the constitution is an intentionally incomplete and often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices.” Indian Democracy’s date with the judicial appointments in an uneasy courtship, between the executive and the judiciary. The Executive looks to Parliament to legitimize its claim; the Court to the Constitution –as it understands; each accusing the other of being ‘undemocratic’. The Civil Society believes that both are right. The common man – waits, patiently. But he cannot be taken for granted. For he knows when to strike. Strike he will, if his patience is stretched too long. In the ultimate analysis it is for his benefits that any democratic constitution should work.
Profound is the problem; pragmatic should be the approach; truly democratic ought to be the solution. As a dissenting judge in the last of the judgments on judicial appointments, I shall be all too happy to see a happy ending to this tangle.