The Importance of a Judicial Appointments Commission

The commentary over the government’s proposed Bill to bring in the Judicial Appointments Commission and bring an end to the ‘collegium system' for appointing Judges to the High Courts and Supreme Court mirrors the precarious state of debate in India.  Binaries (corrupt politicians versus honest-to-a-fault judiciary) abound, and so do consequent doomsday predictions. Assigning motives has become a parlour game.

In the absence of an intellectual climate favourable to engagement about the normative content of judgments, or a scrutiny of how judges are appointed, what we have is judicial idolatry. And it is this reverence which the judiciary cynically milks to perpetuate the tyranny of the collegium system.

Given legal sanction in 1981, concretised in 1998, and being religiously followed since then, this enshrines the supremacy of the judiciary in deciding on judicial appointments, so much so that “judges appoint themselves” has become the reality. Justice Ruma Pal of the Supreme Court had aptly said “the process of appointment of judges to the superior courts was possibly the best kept secret of the country.”

The general perception is that the independence of the judiciary is under threat because the political class is out to get it, corner it, and turn the tables on it.  Such a view gaining strong currency is not totally unsurprising. Of late, the judiciary seems to have become a thorn in the flesh for the ruling government in particular and the political class in general.  The reasons are not far too seek. It has been putting a spanner in the works of a government that seems not only tainted, but characterised by scams of all hues and colours.  The Supreme Court’s ‘clean-up drive’ in Lily Thomas and Jan Chaukidar  which seeks to bar convicted people from running for political office, has been perceived as a mortal threat to the fiefdom which politicians have come to enjoy and perpetuate.

The Judiciary plays on this fear and enforces its hallowed solipsism.  So much so, that Justice P Sathasivam, the new Chief Justice of India, admitted in a recent interview  although “the judiciary is not untouched by corruption”, the collegium system was working fine and there was no need to usher in any change. As subsequent paragraphs prove, this was a limpid defence of a cabal, not “collegium”

Citing history  to circumvent accountability
Two tropes (references to history, devoid of context) are invoked to stave off any attack on the judiciary’s carte blanche powers.

The first is Franklin Delano Roosevelt’s attempt at “court-packing” in February 1937.  The Supreme Court of the United States (SCOTUS) was impeding the heady idealism of Roosevelt’s “New Deal” from being manifested into reality. In order to surmount this hurdle, he came up with the Judiciary Reorganisation Bill which aimed to transform the fearsome foe of a 5-4 Conservative Bench into the formidable ally of a 6-3 Roosevelt Bench. Jeoff Shesol, in “Supreme Power: Franklin Roosevelt vs. the Supreme Court"  describes the showdown as “one of the most ferocious, unpredictable and consequential fights of the Roosevelt presidency.”

The second is the successful implementation of the Kumaramangalam Doctrine  on April 25 1973. This doctrine, propounded by then Union Minister of Steel and close aide of Indira Gandhi, Mohan  Kumaramangalam, prescribed a “committed judiciary”, that is, a pliable court, which would be the government’s handmaiden in implementing its agenda. The Supreme Court, headed by Justice Sikri, was the exact opposite.

Riding roughshod over the long-standing convention of the seniormost Judge of the Supreme Court being appointed as the CJI, Justice AN Ray (considered the government’s blue-eyed boy on the Bench, was zoomed past Justices Shelat, Hegde and Grover who were next in line to Justice Sikri.  CK Daphtary, India’s first Attorney General and a man never known to mince words, said of Ray’s appointment- “the boy who wrote the best essay got the first prize.”

The Collegium System- a citadel of nepotism
Allegations, and even possible instances, of favouritism and nepotism in judicial appointments are not a recent phenomenon. They have been there since the days of the Constitution’s infancy; the collegium system only erected a wall of reinforced concrete around such malpractices.

In “Working a Democratic Constitution”, Granville Austin recounts incidents dating back to 1950. At page 126, one learns of Justice Nawalkishore, the then acting Chief Justice of the Rajasthan High Court and how he tried to pip Justice Wanchoo to the post of Chief Justice, which he coveted for himself. To this end, he parleyed with none other than Justice Kania, the then Chief Justice of India (Kania had a soft corner for Nawalkishore) and President Rajendra Prasad.

George Gadbois  in Judges of the Supreme Court of India: 1950-1989 mentions how the  appointment of a High Court Judge was successfully resisted by a senior Supreme Court Judge whose objection was that he had threatened to shoot his dogs!

Justice UL Bhat in his autobiography  The Story of a Chief Justice narrates how his perceived “irreverence” towards Supreme Court judges cost him a deserving berth on the Apex Court’s Bench. A Judge is supposed to rule from the Bench without fear or favour, and the very idea of being reverential to his colleagues or seniors is not only preposterous, but militates against the very fundamental tenets of judicial ethics.

The Dinakaran affair of 2009- 10 still rankles many a conscientious member of both the Bench and the Bar. A Committee headed by Justice VS Sirpurkar, a sitting Judge of the Supreme Court, found Justice PD Dinakaran (then the Chief Justice of Karnataka High Court, already recommended for elevation to the Supreme Court) guilty of a slew of corruption charges. Intriguingly, Dinakaran resolutely refused to vacate office even though he was precariously dangling on the precipice of impeachment. Maybe, he was sanguine of support from some member(s) of the Supreme Court collegium. Because it was this same hallowed institution which, in its wisdom, decided not to oust him, as even a modicum of propriety and justice would have demanded, but gently heap him on the Sikkim High Court as Chief Justice. The putative reason was that Dinakaran was competent to head the Sikkim High Court because of its miniscule caseload. When the very question was not of competence but one of integrity, only a morally benighted institution could have arrived at such a magnanimous decision! Would it be too impertinent to point out that lording over this collegium was His Honourable Lordship Justice KG Balakrishnan, reputedly India’s most tainted Chief Justice?

The case of Justice Ashok Kumar of the Madras High Court demonstrates  not only a the collegium system’s miserable failure to separate the grain from the chaff, but also how an imperious and mendacious Chief Justice of India can use it vehicle for rewarding “loyalty” or any other virtue he cares about.

In February 2007, Additional Judge (since 2003) Justice Kumar was confirmed as a Permanent Judge on the express recommendation of then CJI KG Balakrishnan. Yes, the very same Judge who had his fingers in the Dinakaran pie. This was despite the fact that in August 2005 the Supreme Court collegium found him unsuitable because of dubious integrity, and recommended against giving him any more extensions. Balakrishnan confirmed his appointment without consulting the collegium. This was not only against the law as laid down by the Supreme Court, but also violated the Law Ministry’s Memorandum of Procedure which clearly stated that the CJI must consult the Collegium of senior Judges, as well as those other Judges who have come from the same High Court in which the proposed appointment is to be made. Brouhaha ensued and the matter reached the Supreme Court. A dangerous skeleton tumbled out from the judiciary’s closet during the course of arguments- between 1.1.1999 to 31.7.2007, in more than 350 cases, those functioning as Chief Justice of India had NOT consulted the Collegium while deciding on appointments to the High Courts ! surprisingly, or maybe unsurprisingly (by now), the Supreme Court castigated those Chief Justices’ magnanimity towards Ashok Kumar for political considerations, but refused to intervene in this act of manifest illegality. Worse, it glossed over the glaring lapse of the collegium being bypassed.

Cut back to the immediate present
Gujarat High Court Chief Justice Bhaskar Bhattacharya alleging that Chief Justice of India Justice Altamas Kabir, and head of the “collegium” had nixed his chances of being elevated to the Supreme Court. The alleged reason? Earlier this year, Justice Bhattacharya, as a member of the collegium of the Calcutta High Court, he had opposed the elevation of Justice Kabir's sister Shukla Kabir Sinha to the Bench because he did not find her of suitable merit to deserve a Judgeship. Yet another charge was that Justice Kabir had acted in undue haste to convene a meeting of the collegium in order to elevate one of his favoured High Court Judges to the Supreme Court. Justice Kabir has strongly refuted both allegations, and for some time, the legal circles were abuzz with conjectures of Justice Bhattacharya being hauled up for contempt of court for his apparent effrontery of questioning the motives of the august institution of the higher judiciary.  What got drowned in the shrill noise of this kerfuffle was the truth, and since the modus operandi of the collegium’s decision-making is shrouded in the pious cloak of confidentiality, it shall remain buried. Forever. 

Let us not be beguiled by the craven curmudgeons in khadi who scream how the Lords in black are encroaching on their turf. Let us also not get spooked by their Lordships’ fears.

The Judicial Appointments Commission might be an expedient measure, and surely is not the panacea to stem the rot in the system. It does not fully address the issue of appointing competent judges, or a plausible way of ensuring that only those with merit make it to the Bench. But, it does pave the way for the first step towards having a punctilious judiciary. It comes as the first powerful blow against the hegemonic omerta of the collegium system, an invaluable wedge against judicial tyranny.