Judicial appointment commission – need and relevance
The judgments of Supreme Court in S.P.Gupta vs. U.O.I. AIR 1982 SC 149, Supreme Court AOR Assn. Vs. Union of India, 1993 and Presidential reference made in 1999 are relevant to be quoted in this context. Before that a brief view of Article 124(2) which says:
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Several interpretations were given to the word “consultation” in these judgments by the Supreme Court of India. It is not necessary to go into the merits of the views expressed as to that word. My personal interpretation of the above article is the President of India is at his discretion to appoint a judge of High Court or Supreme Court. The word “Consultation” does not convey any deeper meaning, it is as good as the word that we use in our daily lives. We consult a person of relevant knowledge to make a decision. We consult a scooter mechanic and ask his opinion to purchase a new scooter. This word is as good as that. We consult him about the best scooter does not mean we leave the decision to him. He helps us to arrive at the right choice and we use our discretion to make the choice. In this Clause (Art.124(2)), the word ‘consultation’ does not mean more than that. The final authority to decide on the matter is President of India himself after receiving the opinion of the judges referred in the Clause. In the appointment of Chief Justice of High Court and Chief Justice of Supreme Court, the President need not consult any Chief Justice but when it comes to the appointment of a Judge other than Chief Justice (whether of High Court or Supreme Court), the Chief Justice of India shall always be consulted. In other words, if a Chief Justice of High Court or Supreme Court is to be appointed, the President need not consult the existing Chief Justice of India if he does not want his opinion. He can choose as many numbers of judges as he wants from Supreme Court and High Courts. He may choose 2 from Supreme Court and 6 from High Courts. Or, 2 from High Courts and 8 from Supreme Court. The only condition requiring Chief Justice of India in this team is when a Judge of Supreme Court or High Court (excluding Chief Justice of High court and Chief Justice of India) is being appointed. “Shall always be consulted” does not mean any special power conferred on the Chief Justice of India, it simply means, in the team that the President chooses to elicit opinions regarding appointment of judge of High Court or Supreme Court, the Chief Justice of India “must be present”.
Now let us briefly discuss the amendments made to the provisions relating to President of India because it has a bearing on this subject. Through Constitution 42nd Amendment Act, 1976 Article 74(1) was amended and as per the amended article, “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice”. Through Constitution 44th Amendment Act, 1978 a proviso was introduced to Article 74(1) as under:
(Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such recommendation).
These amendments are crucial in deciding the fate of separation of powers between Executive, Judiciary and the Legislature. There are certain elements that Supreme Court recognized in Keshavananda Bharati vs. State of Kerala, Indira Gandhi vs. Rajnarain etc as forming the basic structure of the Constitution to counter the self-serving and unbridled Power of Parliament to amend the Constitution under Article 368. In the same manner ‘separation of powers between the Legislature, Executive and Judiciary’ is the fundamental element in the formation of basic structure of a Democracy. Rule of Law as opposed to Rule of man or king, is not any principle proposed by Constitution, the very nature of government that the nation chooses, imposes the condition that the nation shall be governed by rule of law. The State is not sovereign, no officer representing the State enjoys sovereign immunity in a Democracy, and the same spirit is found in Article 300 of the Constitution which says – the State can sue and be sued. Which means, the citizens have a right to question the State in courts of law as to their wisdom in making executive decisions and also in making laws in the light of a Constitution which is made to uphold the mode of governance (democracy) chosen by the Nation. Neither Rule of law, nor the Judicial Review is quoted as a principle anywhere in the Constitution of India, but they are the moving spirit and inspiration behind the very making of the Constitution because the Constitution must serve to uphold the values of Democracy. That the State (head of state or king) enjoys no sovereign immunity, he (it) can be sued like any other ordinary citizen be sued is the fundamental principle of democratic jurisprudence. In this backdrop, the doctrine of separation of powers between executive, judiciary and legislature has monumental significance. In monarchy, all these three functions were performed by the King himself.
If the King makes laws, nobody can question him. Was there a Court in monarchy to question the actions of a King? The judiciary (court) in monarchy was King himself. So you cannot question a King’s law. That is why, if you want to question a King’s law, a parallel power centre called court must be established which can have authority, competence and courage to say – the King erred. That is how the judiciary got separated from the legislature as time passed on and people started cherishing the values of equality and freedom.
Whether any decision made by King is in tune with the law he made? Who has to challenge this? A citizen cannot beg the King himself to review his decision in the light of law he made. King is always right. He is sovereign. How to question him? How to make him accountable to the law that he himself makes? The answer for the question is again separation of powers. Divide the executive power from the rule-making power. Make the executive accountable to the rule-making authority. That is the spirit behind, Article 75(3) which says, the Council of Ministers shall be collectively responsible to the House of People. And the Ministers shall hold office during the pleasure of the President (Art.75(2)). These are riders to ensure the separation of powers between Executive and Legislature. In a Democracy, the Executive is accountable to parliament and answerable to judiciary.
Rule of law, Separation of Powers and Judicial Review are not the part of basic structure of Constitution, they are fundamental principles of democratic jurisprudence. They are the moving spirit behind the Constitution which shall always uphold the values of a Democracy. Otherwise it will carry the foul smell of the features of a monarchy. Now, when the Constitution says, “the Ministers shall hold office during the pleasure of the President”, you cannot make his pleasure dependent again on the “aid and advise of same Ministers” who survive on his pleasure. This is antithesis to the principle of separation of powers between three organs of State.
Constitution had given same powers and privileges to President and Governors of States on many counts, which we may find as corresponding provisions, for example – Ordinance making power of President and Governor in Article 123 and Article 213. Similarly, Article 163 is corresponding provision to Article 74 of the Constitution. If we see Article 163 we find that the Governor enjoys “discretionary power”. Article 163 (1) says:
There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far s he is by or under this Constitution required to exercise his functions or any of them in his discretion.
The italicized words are important, they denote the discretionary power given to the Governor of a State to exercise his functions. What are the areas in which he has to exercise his discretion is not quoted anywhere in the constitution. But Article 163(2) says, if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
In other words, the Constitution gives absolute power to Governor to act in his discretion. If he makes any mistake in using his discretion, he can be removed but his action cannot be questioned, replaced or reversed otherwise than through due process of law.
This discretionary power is needed more for the President of India who appoints key Constitutional Authorities like the Chief Justice of India, and Chief Justices of High Courts and Judges of Supreme Court and High Courts, Chief Election Commissioner, Comptroller and Auditor General of India etc. But in the corresponding provision, it may be noticed clearly that the discretionary power that a Governor of State enjoys through Article 163 is not there for the President of India under Article 74 though they are corresponding provisions.
If the President of India is acting on his discretion without the aid and advise of the Council of Ministers, in the appointment of judges of Supreme Court, High Court etc., then the presumption is the appointments he makes are in consonance with the doctrine of separation of powers because, the legislature or anyone associated with legislature (say the Minister of Law and Justice) should not interfere in this process. It is entirely, a matter in question between the President being the Head of State acting in his discretionary and executive powers on one side and the judges of Supreme Court and High court on the other side who only act in ‘advisory capacity’. He will not have any permanent collegium (team) to decide about appointments, because he ought to consult different judges to appoint judges in different fields, different states. He may not consult South Indian judges to appoint a High Court judge of Allahabad. What team he chooses to appoint a particular judge is his discretion, and that team keeps varying from one appointment to another depending on various factors like the place of appointment, the field (field means - requirement of a judge having vast experience in Civil law or Criminal law etc) in which the judge is chosen to function etc. He need not consult a same team every time.
It is entirely a decision to be made by the Executive in its wisdom, neither the legislature nor the judiciary has any say in so far as the final decision is concerned. The judiciary’s role is only ‘advisory’ which aids in arriving at the final decision by the President. This is important because judiciary, executive and legislature are three organs of state and no organ by itself should sit in judgment of appointment of its own officers. This is in tandem with one of the principles of natural justice – no one should be judge in his own cause. In other words, the judiciary should not appoint its own judges. The legislature should not interfere in this process because, it is rule making authority in a Democracy, and if it chooses the judges of its liking or influences the process of their appointment by any method, its rules will not be adjudicated impartially when they are questioned in the Courts of law.
The provisions of Judicial Appointments Commission, if read in the light of above discussion, appear to have erred in including the Prime Minister, Leader of Opposition and the Law Minister in the process of Judicial Appointments. It is not in the spirit or either Constitution or Democracy for the persons associated with legislature to interfere in the process of appointment of judges. In my view, JAC would be meaningful if at all to be relevant for our Democracy, if in the place of two eminent members to be selected by Prime Minister, Chief Justice of India and Leader of Opposition, the Chief Election Commissioner and CAG are members of JAC and if members of Commission exclude the Law Minister and restrict to 5. And if all these 5 members only act in ‘Advisory’ capacity. Or else, as per the ‘absolute discretion’ of the President as per the scheme of the Constitution.
The rule of avoidance of quid pro quo in Constitutional appointments: Before making legislation it is sine qua non to verify whether there is a possibility of quid pro quo between members responsible for appointment of key Constitutional functionaries. The President is not supposed to consult legislators in the appointment of the judges of High Court and Supreme Court because there can be quid pro quo between legislators and the judges. More specifically in the context of level of criminalization of politics in India, the quid pro quo between judicial officers and the legislators must be avoided at any cost. President is expected to appoint judges because they do not appoint President of India. He is elected by the electoral college consisting of MPs and MLAs. Hence there is no possibility of quid pro quo between President and the Judges. As they have nothing to do with his appointment, he may not do any favor to them. Now, coming to the present scheme of provisions relating to JAC, what is the possibility of quid pro quo?
It is foregone conclusion that Prime Minister and Law Minister will be on the same side. There is no doubt in anyone’s mind about that in the selection of 2 eminent members, there is possibility of quid pro quo between the Prime Minister and Leader of Opposition because both belong to Legislature and politicians of both parties can have criminal proceedings in various courts. Second possibility is there can be quid pro quo between ‘to be appointed CJI’ on one side and PM and Law Minister on the other side with the offer of gift of preference. Hence there is no strict possibility that both the judges will be on the side of CJI with three forming Judiciary’s team and rest of the three forming the other side of fence. As opposition also unhesitatingly supported the passage of bill I see no possibility of Leader of Opposition and CJI will be on one side in the selection of two eminent members of the JAC. Hence in all possibility, the CJI and one judge (who will not be preferred for appointment as CJI) will be left alone in the JAC. When it comes to armtwisting judiciary, the only possibility in India is the ruling party and opposition will be on same side of the fence.
That is why it would be interesting to see how the Commission will make the supplementary legislation with regard to the rules about the methods of appointment as per Section 12(2) of the JAC Act, 2014. Whatever be the case, I feel and conclude, the rule of avoidance of quid pro quo is not properly tested and addressed before making the provisions of the JAC Act, 2014 so also there is no adherence to the Doctrine of Separation of Powers which was elaborately discussed in the early paragraphs of this article.
