ANIL DIVAN June 14, 2013

The government’s attempt to restore the predominant voice of the political class through the Judicial Appointments Commission is a recipe for disaster

“Even so, the creed of judicial independence is our constitutional ‘religion’ and, if the executive use Article 222 to imperil this basic tenet, the Court must ‘do or die’” — Justice Krishna Iyer

A recent proposal for a Judicial Appointments Commission as structured by the government poses a grave threat to the independence of the judiciary. According to media reports, the Commission is likely to consist of seven members — the Chief Justice of India and two senior-most judges of the Supreme Court, the Law Minister, two eminent jurists nominated by the President, and the Leader of the Opposition. If past experience is a guide, eminent jurists enjoying or aspiring to enjoy political power, or beguiled by official patronage, have displayed little warmth and much hostility to the independence of the judiciary and the rule of law. The present proposal will require a constitutional amendment.

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.

On April 15, 2013, a letter signed by many senior lawyers (including Fali Nariman, M.N. Krishnamani, Shanti Bhushan, Ashok Desai, K.K. Venugopal, P.P. Rao, K.N. Bhat, Mukul Rohtagi and the author) was sent to the Law Minister, requesting him to make available to the public and the Bar the draft of the proposed Bill to ensure a robust, informed and critical debate. The plea fell on deaf ears and the draft Bill remains a well-guarded secret.

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 vizPresidential 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.

Current scenario

The government is upset because the executive does not now have the primacy it enjoyed earlier. The vigorous judicial scrutiny and oversight of executive misdemeanours in the 2G scam and Coalgate litigations (apart from many others) has rattled the executive. The present administration is smarting under these decisions and has been consistently attacking all constitutional authorities such as the Comptroller and Auditor-General, the Chief Election Commission and the judiciary which acts as a check on executive power.

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.

Failed system

The collegium system is now current since 1993 (a span of about 20 years) and several criticisms and shortcomings have surfaced as mentioned above. Reform of the above system is necessary but that should not be brought about by restoring a failed system which posed a threat to the independence of the judiciary and the rule of law.

The Judicial Appointments Commission is so structured as to revive the dominant voice of the political class by including the Law Minister, two eminent jurists nominated by the government and the Leader of the Opposition.

In sum, with all its shortcomings, the present collegium system is definitely superior to the earlier one. The attempt to restore the predominant voice of the political class in judicial appointments and transfers will amount to subverting the basic structure of the Constitution and will be a recipe for disaster. Each one of us must strongly resist this attempt.

The present proposal is a poisoned chalice, an ill-concealed wolf in sheep’s clothing.

To conclude, I quote the venerable Justice Krishna Iyer — ‘hands off judges’ is too sacred to be sacrificed.

(Anil Divan is President, Bar Association of India. anildivan@gmail.com)

http://www.thehindu.com/opinion/lead/a-trojan-horse-at-the-judiciarys-door/article4811353.ece