AMIDST the intense cry and cacophony over ‘demonetisation’, grievous governance wounds that bleed the nation are getting sidelined. Most important among them is the Central Government-Supreme Court impasse on the appointment of High Court judges.
For quite some time the Central government and Supreme Court Collegium have been locking horns on his issue. The Chief Justice of India (CJI) has been blaming the government for not doing enough for appointing judges with the Union Law Minister responding with a counter accusation. The bone of contention is the Memorandum of Procedure (MoP), which will be the Rule governing appointment of judges. Strange as it may seem, India’s higher judiciary, which adjudicates every law and rule in the country, is itself functioning without any rule! The Supreme Court, in a judgment, struck down the government’s proposal to set up a National Judicial Appointments Commission (NJAC) for appointment of High Court and Supreme Court judges. Since the judgment, the government and the collegium have not been able to draft the MoP.
This is because of sharp difference of opinion between the two on many issues:
Seniority and merit: The government wants the criteria of seniority, merit and integrity while promoting a HC judge to the SC. Collegium says the criteria of seniority, subject to merit and integrity, would be followed.
Power to reject candidates: The government proposes to retain power for rejection of candidates recommended on grounds of national security/public interest.The collegium is opposed to this, saying it amounted to interference in its functioning.
Writing down reasons: The government wants that in case a senior judge is being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing and the views of all five judges of the collegium must be made known to the government. The collegium says this will be counter-productive and could affect the concerned person’s future career as well as duties as judge.
Binding recommendation: As per the existing system, the collegium’s recommendations can be sent back but if it reiterates the same, it is binding on the President. The government says three important judgments of 1993, 1998 and 2015 on appointment of judges do not give absolute powers to the collegium. Instead, they ask for “participatory consultative process at the highest level”.
Three-judge quota: The government proposed that up to three judges may be appointed from the Bar or from distinguished jurists with proven track records. And that, all judges of the Supreme Court should be open to recommend names for these postings. Collegium is not in agreement and says this does not fall within the framework of the Constitutional provisions.
Consultative mechanism: The government proposes to set up a committee to assist the collegium in evaluation of candidates. It wants two retired judges of the SC and an eminent person/jurist to be jointly nominated by the CJI and the government. Collegium feels this is not necessary.
Candidates’ database: The government proposes a secretariat under the law ministry that would maintain a database of judges, schedules collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. The collegium is okay with the idea of secretariat so long as the forming and functioning of it is left to the CJI and it is under the ambit of the Registrar of the Supreme Court.
THIS is the ongoing tug-of-war. Subsequent to the collegium recently brushing aside the central government’s objections to 43 candidates and reiterating all the names for appointment as judges, this has turned into a slanging match between the two high constitutional entities. Tensions continue to flare with both sides-Union Law Minister and CJI-cautioning each other against crossing the ‘lakshman rekha’. The former rubbed it in by stating that while high courts had shown “great courage” during the Emergency, the Supreme Court had failed the people by endorsing it. The unsavoury collegium vs NJAC spectacle is not going to end soon. Because, not only the sitting judges but also the retired heavyweights of higher judiciary are leaning in favour of the former and have conveyed the same in a memorandum sent to the CJI. Signatories include former Supreme Court judges and High Court Chief Justices.
The senior-most among them, Justice Kuldip Singh, former Supreme Court Judge had this to say: “There is no alternative (to collegium). It’s fool proof, if it is transparent and accountable. You see, the judges know who all are good and fit for appointment as sub-judges, high court judges, and even Supreme Court judges. The judges are the best selectors.” This contention needs to be taken with several pinches of salt!
One of the signatories-Justice Manmohan Singh Liberhan (former CJ of Madras and Andhra High Courts)-however cautioned that this unbridled power assumed by the collegium should not make the Supreme Court a “second sovereign”, because in a democracy people alone are sovereign. He concedes that collegium system was not much of a success and tongue-in-cheek admits that true transparency would lead to loss of respect for judiciary! Indeed, as the adage goes: “Familiarity breeds contempt.”
Proponents of NJAC argue that selection to the higher judiciary must be made by a full-time (not ex-officio) body, which is independent of the government and the judiciary and which goes about the selection in a rational and transparent manner. The business of selecting hundreds of judges in a year to the higher judiciary, if done properly, would require at least a 1,000 candidates to be considered and comparatively evaluated over multidimensional criteria in a fair and rational manner. This would require a full-time body, which could totally devote itself to this process, with professional support.
There also needs to be transparency in the selection to prevent arbitrariness or nepotism. Minimum transparency would require that the criteria for selection of judges and standard of evaluation of candidates be made known and names of shortlisted/selected candidates announced before appointment, so that those who have relevant information about the candidate can send it to the appointing authority. Basic criteria to judge the competence of a candidate should include integrity, competence, judicial temperament, common sense and sensitivity towards the problems of the common man, among others.
A system modelled on the British Judicial Appointments Commission, which follows a method to evaluate candidates based on predetermined and set criteria, could be suitable for this.
So, the tussle is between an ex-officio group called collegium and a fulltime commission, both non-constitutional entities. Hence the crisis and the conundrum that has happened due to a historical blunder. At the time of Independence there were two All India Services (AIS)-Indian Civil Service (ICS) and Indian Police (IP). ICS was doubling as civil servants and judges. Since the Constitution of India brought in separation of powers between the executive and the judiciary, this arrangement was no longer tenable.
Accordingly, Article 312 of the Constitution mandated Parliament to create one or more AIS. Due to intense efforts by Sardar Vallabhbhai Patel, Deputy Prime Minister in charge of Home Ministry, two of them were promptly covenanted in the Constitution itself: “The services known at the commencement of this Constitution as the Indian Administrative Service (IAS) and the Indian Police Service (IPS) shall be deemed to be services created by Parliament under this Article.” [312(2)] But BR Ambedkar, the Law Minister, allowed the matter to drift and frittered away the opportunity. So, till date there is no Indian Judicial Service (IJS) since Parliament empowered to enact a law for the purpose has failed to do so.
This perhaps is the main reason why there is such crisis in judiciary and huge number of vacancies. Creation of IJS keeps cropping up off and on. In 2010, three eminent jurists-Justice MN Venkatachaliah, Justice JS Verma, Justice VR Krishna Iyer-examined the issue in some length and opined thus: “We agree with the urgent need to constitute the IJS as envisaged by Article 312 of the Constitution of India, at par with the other All-India services like the IAS, to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is important feeder-line for appointments to the High Court. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. IJS will, in due course of time, also help to improve the quality of the High Courts.”
VARIOUS law commissions (1st, 8th, and 11th) had also suggested the creation of IJS. Even the Supreme Court, in two of its judgments in 1991 and 1993, had endorsed the setting up of IJS. Yet it is mysterious that this Service has not materialised. In November 2012, a Committee of Secretaries chaired by the Cabinet Secretary had approved a “comprehensive proposal” for creation of the service. At the time, 18 High Courts out of 24 had responded to the proposal, and most of them had opposed it.
It looks as if the decades-old plan of setting up IJS is again in the limelight. This is evident from a note prepared by the Law Ministry’s justice department in September 2016: “The matter has been discussed at the highest level in the government and the judiciary. It has been decided that the Honourable Chief Justice of India would convene a meeting of the Chief Justices of the High Courts to arrive at a consensus on formation of IJS.”
In the present surcharged atmosphere, it will be interesting to see how CJI and the High Courts react to the proposal which, according to sources, has been significantly tweaked to convince the judiciary that it would remain free of government control. This can be achieved by making Supreme Court as cadre-controlling authority for the IJS.
Though the Constitution has placed “Justice, social, economic and political” at the epicentre of India’s democratic governance, for the people at large this has become a rare, time-consuming and costly ‘commodity’
to access. And the way courts and judges are functioning things are going from bad to worse. This cannot be countenanced and a solution has to be found. The sooner, the better because higher judiciary cannot be a rule-less entity in perpetuity!
All things considered, the best long-term solution for this sensitive and vexatious issue is to abide by the constitutional scheme of things and establish the IJS with appropriate rules and regulations without any further loss of time. In the interim, judiciary can adopt the extant All-India Service Rules with suitable modifications. This seem to be the prudent way out of the deepening morass and brooks no delay.
The writer is a former Army and IAS officer. He is also former Administrator, Chandigarh Capital Project. Email: firstname.lastname@example.org