Rethinking Judicial Appointments in India

The latest case of cash discovery at the residence of Delhi high court's Justice Yashwant Varma, his controversial ‘punitive’ transfer to the Allahabad high court and the debate around the inviolability judicial independence have raised new questions about the appointments to the apex courts: corruption in the higher echelons of the judiciary.

Before this, debates around the appointments to the Supreme Court and the high courts centred around the seniority principle and possible partisanship. The candid questions it throws is of the selections and appointments being fair and fool proof when the judiciary handles this responsibility.

Uncomfortable with this process, the Modi government legislated the 99th Constitution Amendment Act in August 2014 to end the collegium system by bringing in the National Judicial Appointment Commission (NJAC). 

Not to be browbeaten by this ‘encroachment’ on their power, a five-judge constitution bench of the Supreme Court headed by Justice J.S. Khehar struck down the NJAC proposal. The bench, however, admitted that the collegium system needed reforms.

The judgment faced mixed reactions for its intent and content. The severest of all came from then Union finance minister Arun Jaitely. "Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger," he said, stressing that the judgment went against the basic structure of the Constitution.

The Justice Varma episode has given ammunition to the government. It fielded Vice-President Jagdeep Dhankar to criticise the judiciary’s decision to strike down the NJAC Act and rally around the opposition against it. Addressing MPs of various parties, he said, ‘There is no constitutional provision of review or appeal of a constitutional amendment. If there is a legislation (passed) by Parliament or state legislatures, judicial review can take place only on whether it is in conformity with the constitutional provisions." Thus, he took up the burden of questioning if judicial accountability remains sanctimonious enough with the judiciary insisting on keeping the responsibility of appointment of judges.

Also read: Judges in Supreme Court Collegium Wanted Strict Action Against HC Judge, But Deferred to CJI

In this context, the Constituent Assembly debate on the issue becomes relevant. It indeed affirmed the judiciary’s independence vis-à-vis the executive. The ad hoc committee on the Supreme Court opined in its report on May 21, 1947, "We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of India."

While framing Articles 124/217, the Constituent Assembly repeatedly expressed concerns regarding ensuring ‘sufficient safeguards against political influence’. So, the appointments to the higher judiciary by the President of India ‘by warrant under his hand and seal’ was sought to be qualified with ‘subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the houses’ and ‘approval of the Rajya Sabha’. 

An additional clause to bar the Supreme Court and the high court judges from any post-retirement appointment was also proposed. Eventually, an agreement was reached to empower the president to appoint the judges in consultation with the Chief Justice of India and any other constitutional functionary that he may deem fit.

Indeed, powers and responsibilities of the president, as qualified by the 42nd and 44th constitutional amendments to Article 74, added a new dimension due to the added circumscription, which perhaps have added to the suspicion of the executive. The possibilities of executive interference in judicial appointments appeared real, more particularly after the experience in the early 1970s.

How do other countries make judicial appointments?

The processes of judicial appointments in other democracies present a mixed picture. In the US, most apex judicial appointments involve a combination of presidential nomination and Senate approval. In Canada, appointments are made following a federal cabinet decision and a screening process conducted by a judicial advisory committee. In Australia, appointments are made by the Governor-General-in-Council. In the United Kingdom, a selection commission—comprising the president and deputy [resident of the Supreme Court—makes a recommendation, which is then submitted to the monarch for formal approval.

So far judicial independence and the executive’s role in the appointments have seldom clashed in most democracies. Although, instances of a US president regretting his choice, when the judgments of a selected judge did not align with presidential expectations, do exist.

India also is capable of designing an institutional structure and process of higher judicial appointments with larger consultation. As India began taking baby steps in the realm of constitutional democracy, Nehru’s choice to succeed Chief Justice M. Patanjali Sastri in January 1954 was Justice Bijan Kumar Mukherjea. That meant superseding Justice Mehar Chand Mahajan. But when he dropped a hint to Justice Mukherjea, he declined and Justice Mahajan succeeded Justice Sastri.

The succession to Justice S.M. Sikri, following the ‘basic structure’ judgment in which a 13-member bench gave a majority decision [Kesavananda Bharati vs state of Kerala in April 1973], prompted the government to supersede three judges in line – Justices J.M. Shelat, K.S. Hegde and A.N. Grover – and appoint Justice A.N. Ray.

Justice Ray had given a dissenting judgment favouring the government. At a dinner in his honour, Justice Sikri told Ray, "You will rue the day you accepted the chief justiceship." There was a repeat performance four years later. Justice H.R. Khanna’s Habeas Corpus judgment during the emergency in January 1977 led to his supersession in favour of Justice H.M. Beg. Significantly, neither Justice Ray nor Justice Beg had the courage to decline the post like Justice Mukherjea.

However, the question of executive influence in the appointment of the judges of the higher courts did not come up till the ‘Supreme Court Advocates-on Record Association vs Union of India’ case – the second Judges Case – in 1993. The case established the collegium system comprising the CJI and four senior-most judges of the Supreme Court recommending candidates to the president for appointment to the higher judiciary. It was reaffirmed in 1998 in a presidential reference to K.R. Narayanan.

The questions that are entangled in these assertions of ‘judicial independence’ are – the basic structure doctrine, parliamentary sovereignty and judicial review. Judicial independence is indeed part of the basic structure of the constitution, but why could it not be ensured with a more autonomous process of appointments? 

The Constituent Assembly asserted parliamentary sovereignty while preferring ‘procedure established by law’ over ‘due process’ during framing of Articles 21 and 22. However, the introduction of partial ‘due process’ through the basic structure doctrine has placed limitations on constitutional amendments by the parliament. In any case, judicial review does not challenge parliamentary sovereignty.

The relations between the executive and judiciary in India have been fraught from the outset. However, criticism of judicial pronouncements by prime ministers since Nehru is one matter, using supersession as a tool to subdue the judiciary is another.  Aside from the executive and parliamentary unease at the judicial appointments, we now have the case of integrity of the judges.  A process of dialogue to design an institutional process that minimises discretion on either side to have a competent, non-partisan and scrupulous judiciary could be a solution to this mess.

Ajay K. Mehra is a political scientist. He was Atal Bihari Vajpayee Senior Fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21 and Principal, Shaheed Bhagat Singh Evening College, Delhi University (2018).

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