Judges Appointment Draft

Draft Bill

In April 2013, media reports indicated that the government was contemplating reform proposals regarding appointment of judges to the Supreme Court and the High Courts. A draft Bill by the Law Ministry then headed by Ashwani Kumar was to submit the Judicial Appointments Commission Bill to the Cabinet by April 22.

In the first week of June, the new Law Minister, Kabil Sibal, is reported to have said: “Just as judges have enormous stake in the appointment of judicial officers in the higher judiciary [the Supreme Court and the 24 High Courts], the government has an equal stake. Since both of us have stakes in the appointments of members of the higher judiciary, the consultation of both of them is absolutely necessary. The government must have a say.” (The Hindu, June 2, 2013)

The collegium system

This article deals only with the government proposal. It does not deal with how to reform the collegium system. The principal criticism against the collegium system is that it is non-transparent; personal likes and dislikes and prejudices weigh with individual judges in the collegium; the mandatory effective consultation process is wholly opaque and unknown to the public; and meritorious candidates from the Bar and the High Courts are overlooked for undisclosed reasons. It must be highlighted that the collegium system has not attracted any significant criticism that political favourites or pliant judges have been appointed.

Supreme Court judgment

The current appointment mechanism is the result of two judgments of the Supreme Court viz Presidential Reference No. 1 of 1998 (unanimous) and SCAORA vs. UOI (seven against two). The two judgments overruled in part the majority view in S.P. Gupta vs. UOI by holding that in case of a difference of opinion, the CJI’s view as reflected through the collegium would have primacy over the view of the Central government. The concern of the judgments was to eliminate political interference at the stage of appointment. The court observed that “it was obvious that the provision of consultation with the Chief Justice of India … was introduced … to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary.”

The judgments laid down a mandatory consultation process between the constitutional authorities, including the Central government which has inputs from various intelligence agencies. The complaint that the Central government is not consulted or has no say in the matter is misleading and incorrect.

Historical background

For the new generation of citizens, it is necessary to recall the experience of the past resulting in the collegium mechanism. Congress administrations have been in power for over 52 of the last 63 years of constitutional governance. Consistent attempts have been made to undermine and subvert the independence of the judiciary and the rule of law.

On April 25, 1973, a day after the delivery of the judgment in the Fundamental Rights case (Kesavananda Bharati), the Indira Gandhi government, departing from earlier conventions, superseded three of the senior-most judges (who had decided against the government) and appointed A.N. Ray as Chief Justice of India. Justice Ray had decided three major cases in favour of the Central government — though in the minority — namely the Bank Nationalisation case, the Privy Purse case and the Kesavananda Bharati case. The government stand was to appoint “forward looking” judges who shared its philosophy — a euphemism for compliant judges.

This led to vigorous public protests all over India. J.C. Shah (former CJI), M.C. Setalvad, C.K. Dapthary (two former Attorney-Generals) M.C. Chagla (former Chief Justice of Bombay), V.M. Tarkunde, (former judge of the Bombay High Court), K.T. Desai (former Chief Justice of Gujarat) and N.A. Palkhivala condemned the supersession as a grave threat to judicial independence.

After the declaration of Internal Emergency in June 1975 (as a sequel to the disqualification of Indira Gandhi who lost her election petition and could not obtain a complete stay from the Supreme Court), a calibrated, predetermined attack on judicial independence was organised and implemented. Mass transfers of 16 independent High Court judges, including A.P. Sen, Chinnappa Reddy, B.J. Divan, Sankalchand Sheth, J.R. Vimadalal and P.M. Mukhi, from their parent High Courts were made. Additional Judge U.R. Lalit was not confirmed. Justice S. Rangarajan was transferred to Sikkim because he delivered a judgment in favour of Kuldip Nayar (preventively detained) and a Service Judge R.N. Aggarwal who concurred was reverted as a Sessions Judge (after four years in the Delhi High Court). These were all punitive measures to intimidate independent and fearless judges and undermine their morale.

During the Emergency, the Constitution was extensively amended. Judicial review was almost eliminated and a two-third majority of judges was mandated for invalidating legislation. The press was censored and Opposition leaders were preventively detained without trial.

After the fall of the Janata government, Indira Gandhi came back to power in 1980. Law Minister Shiv Shankar issued a circular claiming power to transfer High Court judges and attempted to transfer some existing judges and refused to confirm some additional judges. This led to the famous case of S.P. Gupta vs. UOI in which, by a majority, the Supreme Court held that in case of a difference of opinion, the government view would have primacy over the view of the Chief Justice of India on appointments and transfers.

Post-1980 (till the evolution of the collegium mechanism), many quipped: “Better to know the Law Minister than the law.” It was widely believed that the executive was blocking appointments recommended by the CJI unless its nominees were cleared by a trade-off. Further, it was the perception of many that favourable orders could be obtained by the executive from compliant judges for dubious considerations.