The Supreme Court created for itself by its own order a collegium to deal with the appointment of Supreme Court and High Court judges. The norms under which and the modalities by which the collegium is to function are also laid down. Though apparently participative, the system of appointment of judges still remain beyond the access of citizens. Reasons are invariably not recorded. The judges have given to the collegium, and that too by their own judgments, a status akin to the Council of Ministers. They have laid down that if a proposal is recommended by the collegiums for a second time, it would be binding on the Government. While trying to maintain the independence of judiciary, the quality of appointments has not been uniform. In the appointment of the CJI, the recommendation has to be from the outgoing CJI. Because of the aftermath of the last supersession of the Supreme Court judges to be appointed as CJI, seniority has become the order of the day. But in the appointment to the post of SC and HC judges, enormous amount of patronage and feudalistic favour are alleged to be prevalent.
Justice AN Ray was appointed Chief Justice of India (CJI) in 1973 superseding three senior judges. Justice MH Beg was appointed CJI superseding Justice HR Khanna in 1977. Both Justices Ray and Beg were excellent judges but favoured the Government. They were considered not forward-looking judges but judges who looked forward to the CJI office. In the bank nationalisation case (1970), while as many as all but one of the judges went against the Government, Justice Ray alone approved the Government’s action. Similarly, Justice Beg, in the Indira Gandhi election case, held that while democracy is the basic structure, free and fair election is not.
Impartiality, independence and fearlessness of judges are rights of the citizens. They are not private rights of judges. Ultimately, judicial legitimacy rests on people’s confidence in the courts. We are facing yet another controversy surrounding the Supreme Court. The collegium revisited the decisions taken at an earlier meeting and recommended elevation of two junior judges to the Supreme Court. The recommendation was acted upon by the Government very swiftly. No one has any doubts about the competence or integrity of Justice Sanjiv Khanna and Justice Dinesh Maheshwari, but the manner in which the selection process was carried out once again focuses on the controversial collegium system of appointments. This seriously undermines the independence of judges and raises unnecessary doubts about the credibility of the highest court, as the Government is not only the biggest litigator but is also the greatest threat in the realm of abuse of power. Judicial review as a concept is supposed to control the Government and keep it under checks and balance. It is worth mentioning the case of Justice KM Joseph. He had struck down the Modi Government’s imposition of President’s Rule in Uttarakhand. This led to the Government returning the recommendation for his elevation to the Supreme Court to the collegium last April. His appointment was cleared in August. This time, the Government did not return the recommendation to the collegium for reconsideration and approved the appointments instantly.
‘Power’ and ‘influence’ are fundamental concepts impacting the society. ‘Influence’ is sometimes considered as an aspect of ‘power’. Indira Gandhi was influential because she was powerful. Prime Minister Modi is, similarly, not only powerful but is hugely influential. He is also looked upon with awe and fear. According to American sociologist Alvin Ward Gouldner, the universal norm in human societies is that individuals are obligated to reciprocate favours received. Gouldner has articulated the “norm of reciprocity” in the following manner: “People should help those who have helped them” and “people should not injure those who have helped them”. In his National Judicial Appointment Commission (NJAC) judgment (2015), Justice JS Khehar discussed the issue of reciprocity at length in striking down the commission. He referred to Laura E Little’s work on American judges who felt obliged to the President for nominating them and Senators who helped them in the confirmation process. Justice Khehar, therefore, preferred exclusion of the political executive from the appointment of judges as a feeling of gratitude towards the Government impacts the independence of judiciary. It was for this very reason that even BR Ambedkar wanted to insulate the judiciary from political pressures.
The NJAC was struck down by the court because it would have compromised the independence of CJI and given a role to the Government in the appointment of judges. Unlike in the US, where judges are appointed by the President and are known to be leaning towards the Democrats or Republicans, Indian judges are not expected to have any political affiliation. It is not possible to completely insulate judges from Governmental influence. George Orwell pointed out in 1984 that the Government is everywhere; and judges as fellow human beings do get influenced by it. The judiciary asserts its position only when the Government is weak. This collegium system was asserted when we had weak Central Governments in the 1990s. In his autobiography “Roses in December”, former Bombay High Court Chief Justice MC Chagla, who also served as a Minister in the Indira Gandhi Government, boldly stated the adverse impact of supersession, saying, “The effect of these supersession was most deleterious on the Supreme Court judges who were in the line of succession to the Chief Justiceship. Each eyed the other with suspicion and tried to outdo him in proclaiming his loyalty to the Government either in their judgments or even on public platforms.” A similar remark of the apex court was made by Justice H.R Khanna, who himself was superseded, in his book “Neither Roses Nor Thorns” when he recalled, “One of the new trends was the change in the approach of the court with a view to give tilt in favour of upholding the orders of the Government. Under the cover of high-sounding words like social justice, the court passed orders, the effect of which was to unsettle settled principles and dilute or undo the dicta laid down in the earlier cases.”
But wheels within wheel operate; and sometimes improper influences come into play. One can get the feel of this in every High Court, but it is not seriously debated upon and there is no sincere attempt at improving the situation.
The radical opposition to the Constitution is an open secret. The prospect of hitherto largest 15 judge-Bench overturning Kesavananda Bharati v. State of Kerala (1973), which outlined the basic structure doctrine of the Constitution, does not look too distant if the Government continues to exert pressure on the collegium. If the collegium, due to reciprocity, does not effectively assert its power and independence, the darkest hour of assault on our secular and democratic fabric would have arrived. Most Governments prefer pliable judges, but many of our judges remain wedded to their oath and decide cases without fear or favour.
Finally, a judge is adjudged by the qualities displayed by the person who is the incumbent of the post. A well-groomed human being with reasonable amount of knowledge and experience will make a good judge. But alas! In the search for judges, the unseen hand of patronage and oligarchical preferences come into operation. This results in giving us a qualitatively less efficient judiciary and, finally, affects the quality of the justice-delivery system. The conduct of the collegium must always be above board. Grooming of young lawyers will ensure benefit of both the Bar and the Bench. Even when a person is selected as a judge, some amount of initial training and polishing is required. In-service training is also equally important. Immense trust and faith has been created over the years. Let that not be eroded. All of us must endeavour towards a better judiciary and a better justice-delivery system.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com )
