Change mindset rather than the mode of appointment

In his book, The Unwritten Constitution, legal scholar Abhinav Chandrachud critically evaluates a convention, unspecified in the Constitution of India, over appointing judges to the Supreme Court based on their age, seniority in high courts, and ensuring regional diversity. He speaks to Jiby J Kattakayam about the ongoing controversies in judicial appointments.
 
As political power weakened, the Supreme Court appropriated more powers in judicial appointments. With single-party rule restored, what could happen?
Powerful governments of the past have tried to arm-twist the judiciary. Indira Gandhi superseded Supreme Court judges and transferred High Court judges, to bully them into deciding cases her way. For the last twenty years, however, no government has been able to similarly intimidate the judiciary. Though India’s judiciary was largely independent even under powerful governments, it has become incredibly activist in recent decades. Not merely has India’s judiciary taken over the appointments process, it has also commendably tried to make the government’s functioning more transparent. One wonders whether the new Modi government, like previous powerful governments, will attempt to control the court's composition. The Gopal Subramaniam episode is not a very promising start.
 
How do you visualise the tussle over the Judicial Appointments Commission(JAC) Bill playing out?
I think that the balance of power between the judicial and non-judicial members of the JAC is crucial. The UPA-II's JAC had three “judicial” members (the CJI and the two senior-most judges), and three non-judicial members (the Law Minister, and two “eminent persons” appointed by a committee comprising the Prime Minister, Leader of the Opposition (Lok Sabha) and the CJI). However, the Parliamentary Standing Committee on Law and Justice recommended a seventh member – another “eminent person”. This tilted the balance in favour of non-judicial members. For the JAC to withstand legal challenge in the Supreme Court, I suspect that some kind of balance will have to be preserved between the JAC’s judicial and non-judicial members, giving neither judiciary nor executive the upper-hand.
 
4) Would a JAC be able to rectify shortcomings implicit in the age of appointment, seniority, and geographical diversity criteria in judicial appointments?
Not necessarily. It is now informally understood that a person will not be considered eligible to be appointed a Supreme Court judge unless s/he is at least 55 years old and a High Court Chief Justice. In my book I have argued that these eligibility criteria are flawed. If the collegium system is replaced by a JAC, that does not by itself guarantee that the age and seniority criteria will go. After all, the diversity criterion used to exist even before the collegium. A change of mindset rather than changing the mode of appointment will help. By recommending top-ranking lawyers like Rohinton Nariman, Gopal Subramaniam, and UU Lalit (though all are aged over 55) for elevation, Chief Justice Lodha’s collegium has commendably broken free of the mindset that the best Supreme Court judge can only be found in a High Court Chief Justice.
 
Is the JAC an attempt to homogenise the judiciary's economic and political philosophy with the current neo-liberal paradigm?
In the 1970s, Union minister Mohan Kumaramangalam wanted to appoint judges who believed in Indira Gandhi’s populist ideologies. This created the fear that these “committed” judges would lack independence. As we know, the Emergency followed soon after. But the notion that judges who honestly subscribe to an ideology lack independence is arguable. Despite Democratic and Republican Presidents appointing liberal and conservative justices respectively, rarely is it said that the U.S. Supreme Court’s justices lack independence merely because of their ideologies. Likewise, if the Modi government prefers judges with certain economic beliefs, but if those judges have great personal integrity and a reputation for staunch professional independence, will those judges lack independence merely because of their individual philosophical preferences? However, since executive dominance over the proposed JAC will be difficult, the Modi government will find it difficult to appoint judges “committed” to the government’s neo-liberal policies even after the JAC fructifies.