Supreme Court of India (SC) recently asked the union government to finalize the Memorandum of Procedure (MoP) for the appointments and transfers in the higher judiciary. Since the Supreme Court’s National Judicial Appointments Commission (NJAC) decision of October, 2015 talks of finalization of new MoP are going on; but union government is insisting on ‘national security clause’. According to the union government, it must have the power to reject any name for appointment in the higher judiciary for reasons of ‘national security’. This would be like giving ‘veto’ to the union government to reject any name recommended by the SC’s collegium. The SC opposed this clause as it is of the view that under the garb of ‘national security’ independence of judiciary might be jeopardized. SC’s collegium wants its own primacy in the appointment and transfer processes. SC’s rejection of this clause seems to be an attempt to make union government transparent in its dealings with matters of appointment in the higher judiciary. Now, this equally applies to the Supreme Court. It also needs to be transparent in its process of appointing and transferring judges. On 3rd October, 2017 SC had opened a new window into the appointment process by being ready to disclose the decisions taken by the collegium. It’s a good and necessary step but not sufficient to call judiciary a transparent and accountable institution. It’s because of the non-transparency in the collegium system, SC lacks credibility and democratic quotient in the appointments and transfers of judges.
Supreme Court of India’s initiative for disclosing the reasons for the elevation, transfer and confirmation of judges in the higher judiciary is commendable, a step in the right direction but still a lot needs to be done to make the process more transparent. The ‘October 3, 2017 resolution of the collegium’ which opens a window for transparency reads as "The decisions henceforth taken by the collegium indicating reasons shall be put on the website of the Supreme Court, when recommendation(s) is/are sent to Government, with regard to cases relating to initial elevation to High Court Bench, confirmation as permanent Judge(s) of High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices/Judges and elevation to Supreme Court, because on each occasion the material which is considered by the Collegium is different." It further provides that "The resolution is passed to ensure transparency and yet maintain confidentiality in the collegium system." Earlier, there was staunch resistance against disclosing the decisions reached in the collegium consisting of Chief Justice of India and four senior most judges of Supreme Court. The October 3, 2017 will be remembered as the day, when SC opened a window from which public at large can see its functioning with regard to appointments and transfers of judges. On a broader level, functioning and working of SC can be classified into two categories- judicial and administrative. The claim and urge for independence of judiciary on the judicial side is undoubtedly undeniable. No interference from other two arms of the State should be allowed. But when it comes to the matters on the administrative side, judiciary’s actions are as amenable to public scrutiny as of other two arms of the State. Independence without accountability cannot be the constitutional goal and value. Independence with accountability is a farce. The Constitution of India while emphasizing on the separation of judiciary from the executive influence under Article 50 also visualizes that no organ of the State escape the public scrutiny and fair criticism. Independence without accountability will lead to isolation and that would result in making ‘doctrine of check and balances’ ineffective.
The decision of the SC to upload resolutions with reasons is the outcome, in all probabilities, of the resignation of Justice Jayant Patel, the judge of Karnataka High Court. The collegium of the SC came in for sharp criticism over the issue of this resignation. Justice Jayant Patel was in the line of seniority to become the chief justice of the Karnataka High Court. But before that, he was transferred by the collegium headed by CJI Justice Deepak Misra to Allahabad High Court, where he would be third in seniority for becoming the chief justice. I suppose, sensing injustice being done to him, Justice Patel resigned. It’s not the first time that collegium system has come in for sharp criticism. Previously also, we have seen how competent judges could not reach SC for one or the other reasons. The case in point is of Justice A P Shah, who retired as the chief justice of the Delhi High Court. He was never recommended by SC collegium for his elevation to the Supreme Court. Justice Shah’s elevation would have been beneficial for the apex court keeping in mind the intellect and experience he could have brought to the SC. Another relevant case may be of Justice Bhaskar Bhattacharya (the then Chief Justice of Gujarat High Court) who alleged how his elevation to SC was stalled by the collegium headed by the then CJI Justice Altamas Kabir. He alleged that since he raised objection against Justice Kabir’s sister for being elevated as a judge in Calcutta High Court, Justice Kabir saw to it that he is not made a judge in the SC. Levelling all these allegations Justice Bhattacharya penned a letter to the then President of India, Chief Justice of India and others in which he wrote that “As a human being, I have a reasonable basis to apprehend that the fact that as a member of the collegium while I was a judge of the Calcutta HC, I raised serious objections against the elevation of Smt. Shukla Kabir Sinha, your younger sister, is the real reason for making such observations against me.” These cases point to the opaqueness and other extraneous considerations being played out while appointing and denying elevation in the higher judiciary.
The question is why so much opaqueness comes to surround the appointment and transfer processes of the judges of the higher judiciary. The answer lies in the functioning of the collegium system. The collegium system is the innovation of the SC. The Constitution has no provision providing for the collegium system. The SC through the interpretation of Article 124 of the Constitution invented the ‘collegium system’, which gradually turned out to be fully opaque and non-transparent. The Constitution under Article 124 and 217 tries to balance the role of executive and judiciary in the appointments and transfers in the higher judiciary- Supreme Court and High Courts. These provisions in the original text of the Constitution provided that judges in the higher judiciary will be appointed and transferred by the President of India in consultation with the Chief Justice of India and ‘with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.’ Article 217 also talks of the consultation with the governor of the state, in case the judges of High Court are appointed. This arrangement worked for around 43 years since the enforcement of the Indian Constitution. SC reiterated this arrangement in S.P. Gupta vs. Union of India (popularly known as First Judges case) in 1982. For 43 years executive used to have its role in the appointment and transfers of judges of the higher judiciary. But in 1993 a nine judge bench of SC in Supreme Court Advocates-on-Record Association vs. Union of India (Second Judges case), somersaulted from an earlier decision of 1982 and observed that Chief Justice of India’s advice will be binding on the President. It said the word ‘consultation’ in Article 124 (2) means ‘concurrence with chief justice of India’ and hence the advice rendered by chief justice of India is binding on the President. The President here means the ‘council of Ministers. So, the effect of 1993 decision was that the ‘primacy of chief justice’s advice’ gained importance and binding nature. The executive has to abide by the advice given by chief justice of India. This resulted in the dwindling of the role played by executive in judicial appointments. Later, in an advisory opinion (Third Judges case) sought by the then President K R Narayan under Article 143, SC gave clarifications to its decision of 1993 (Second Judges case) by bringing in a larger collegium system. SC held that ‘collegium’ would now mean chief justice of India and four other senior most judges of the SC. The collegium system thus evolved was not inclusive and transparent. Except the five judges (CJI plus four senior most judges) other remaining judges of SC were often not consulted in matters of appointment and transfers in the higher judiciary. This created a hiatus in the SC, which culminated in a division- the judges who are consulted and judges who are not consulted. This also points to the anti-democratic character of collegium system. The other matter for worry was that the collegium of five judges always remained temporary in nature. Every CJI will have its own set of rules and these would go with the outgoing CJI. No permanence of rules is visible in the functioning of the collegium since last 24 years. What rules were followed; it’s difficult to predict. Here comes the undesired role of the discretion. Non-permanence of rules governing the collegium means more indiscriminate use of discretion. Discretion is antithesis to rule of law and hence, it should be minimized to the maximum extent. Unlimited and unrestricted discretion kills the rule of law. It’s in the interest of justice that collegium is governed by a permanent set of rules and be more transparent and amenable to the public scrutiny.
The recent initiative of SC would go a long way in addressing this excessive use of discretion in the matters of appointment and transfer. Reasons for selections and rejections will certainly reduce the discretion of the judges in the collegium. But, I am of the considered view that much more needs to be done to make higher judiciary more transparent, accountable and democratic. Balanced role of Supreme Court and executive in the appointment of judges is the way forward. Sooner the better, if this desired way is realized and adopted.
Abdul Hafiz Gandhi is the Head of the Department of Law at Unity Law & Degree College, Lucknow.
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