Appointments still shrouded in secrecy

The controversy that has erupted over the proposed elevation of Karnataka High Court Chief Justice P D Dinakaran to the Supreme Court is illustrative of the wide-ranging dissatisfaction across institutions and professions over the present system of appointments to the higher judiciary. It is rare to see so many bar associations (Karnataka, Tamil Nadu, Delhi and the Supreme Court) raising their voice against an appointment and to press for a system of selection that is transparent and fair. The frustration visible in the reactions of lawyers via these fora is understandable given the inaction in judicial and executive quarters even to the opinions of important national commissions, standing committees of parliament, eminent jurists and professional bodies, all of whom have pleaded for a more broad-based system to select judges.

Under the law as it exists today, it is entirely up to the collegium of judges to take a call on the allegations levelled against a particular judge. But the hullabaloo over Justice Dinakaran’s elevation only highlights the inadequacy of the procedure in vogue ever since the Supreme Court accorded primacy to the opinion of the Chief Justice of India and the collegium of judges in choosing members of the higher judiciary.

The National Commission to Review the Working of the Constitution (NCRWC), headed by former chief justice of India M N Venkatachaliah, declared in 2002 that it was not satisfied with the arrangement in regard to judicial appointments in which the opinion of the collegium of Supreme Court judges would have primacy over the opinions of others, including the president. It called for a more participatory mode, which would include the executive as well. It noted that on a plain reading of Article 124 of the Constitution, the power to appoint judges vests in the president and the president is expected to perform this function ‘after’ consultation and not ‘in’ consultation with the chief justice of India.

The commission recalled how the law on judicial appointments had undergone change over the years. For example, Article 217(1) requires the president to consult the chief justice of India, the governor and the chief justice of the high court while appointing judges to the high courts.

In S P Gupta’s Case (First Judges Case), the question arose whether among the three persons consulted the CJI had primacy. The court said Article 217(1) placed all three functionaries on the same pedestal. In the Second Judges Case (1993), the court said the CJI must take into account the opinion of the two senior-most judges of the Supreme Court to ensure that the opinion was not merely his individual opinion but ‘the collective opinion of the body of men at the apex level in the judiciary’.

Also, the opinion of the CJI so formed, ‘should be determinative and almost binding on the president’. The court favoured an ‘integrated participatory consultative process’ for selecting the best and most suitable persons available. But in case of a disagreement between the president and the CJI, ‘the opinion of the latter must prevail’. Later in 1998, the court described the collegium as the CJI and four senior-most judges when this issue came up yet again via a presidential reference under Article 143.

The NCRWC felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a national judicial commission headed by the chief justice of India and comprising two senior-most judges of the Supreme Court, the Union law minister and an eminent person (nominated by the president in consultation with the CJI) should select judges. It said ‘It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in such recommendations’. In other words, it wanted the process to be more broad-based.

Parliament has been exercised over the complete monopoly of the judiciary over the appointment of judges ever since the Second Judges Case. In 2006, the Parliamentary Standing Committee on Law and Justice expressed its dissatisfaction with the procedure adopted since 1993. It urged the government to come up with an alternative mechanism to ensure the involvement of both the executive and the judiciary in selecting judges.

More recently, the Second Administrative Reforms Commission (Second ARC) has come out strongly in favour of a national judicial council to select judges. Though the Second ARC differed from the Venkatachaliah Commission on the composition of this body, the central theme remained the same. It said the council should be headed by the vice-president and comprise the prime minister, the Speaker of the Lok Sabha, the CJI, the Union law minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha.

However, none of these suggestions have been acted upon. Apart from the commission headed by Justice Venkatachaliah, committees of parliament, the Administrative Reforms Commission, the Forum for Judicial Accountability, eminent jurists and legal luminaries like Shanti Bhushan, Fali Nariman and Ram Jethmalani and bar associations are seeking a more transparent and credible system to appoint judges. But the judiciary seems unwilling to shed its insular approach and the executive appears to lack the moral courage to make law on the lines suggested by Justice Venkatachaliah and others to overcome the limitations imposed by the Supreme Court in the Second Judges Case.

By resisting change, the higher judiciary is giving the impression that it is still not ready to apply the principles of transparency and accountability, which it enforces in other organs of the state. If this impasse continues, we can be certain that the current rumpus over a judge’s elevation to the Supreme Court will not be the last.