We have recently witnessed a high-decibel spat between the Union government and the Supreme Court on the collegium system of appointing judges. The vice-president of India has also weighed in at regular intervals, arguing that the collegium system of appointment has undermined Parliament. Contrary to appearances, the optics of the Supreme Court and the Union government being somewhat at loggerheads is good all around. For a Supreme Court that has often appeared deferential to the government, it appears to be standing up for itself. The government only burnishes its image of caring little for any contrarian points of view, confident of the legitimacy that comes from a huge public mandate. Above all, it is good for the citizen because there is a whiff of powerful organs of government checking and balancing each other, as they are supposed to do according to the classical democratic theory. The ambition of one set of power-wielders is being counteracted by another, leading, as the theory goes, to responsible government.
So far, so good. But dig a little deeper and this public spat comes across as superficial. The real question is this — is the fractious public debate that the vice-president, judges of the Supreme Court and the law minister are having meaningful in moving the country towards a sensible and rational method of appointing judges to the Supreme Court and the high courts? On the basis of the present evidence, this is not the case.
Ever since the egregiously flawed judgment to strike down the National Judicial Appointments Commission as unconstitutional, the Supreme Court has lost the moral high ground to pontificate on judicial appointments, no matter how well-intentioned it might now be. The judgment itself, a straightforward exercise in self-aggrandisement, was legally unsound and poorly reasoned. There is no legal principle anywhere in the world, let alone in the Constitution of India, that mandates judicial primacy in appointment as a basic feature of the Constitution, without which it would collapse. If that were the case, the House of Lords would always consist of a bunch of government hacks, the US Supreme Court would never have been independent in its existence, and great judges of the Indian Supreme Court like H.J. Kania, its first Chief Justice, and Y.V. Chandrachud, its longest serving, would not have been independent enough, given that they had all been appointed by the government of the day. As a matter of law, this judgment has made India the laughing stock in the common law world.
The intent and the effect of the judgment were, however, clear — the collegium wanted to retain the last word on who would be appointed to the Supreme Court and high courts. This, it believed, would preserve judicial independence. As I have argued before, the notion that only judges who are appointed by fellow judges are independent is a fallacious proposition. The mere fact of the law minister being one out of six members of the proposed NJAC could not have been a reason to be afraid that judges will not be independent. This is especially when the other members were three judges, including the CJI and two eminent persons selected by a committee comprising the prime minister, the leader of the Opposition in the Lok Sabha and the CJI himself. To be afraid of such a possibility may be attributed simply to abundant caution. But to translate that fear into a legal principle that the primacy of judges in appointment is the only way to secure their independence is illegitimate. Feelings cannot become the basis for law.
Justice Kaul of the Supreme Court, who appeared to express his displeasure with the government’s public criticism of the collegium system, was right on one aspect. The fact that if a name of a candidate is reiterated by the collegium, the government must appoint him/her is the law of the land. The government cannot endlessly sit on recommendations, cherry-pick them, and randomly appoint and not appoint persons whenever it feels like it. It is entirely up to it to constitutionally change the system and institute a new mechanism in its place. The proposal recently sent by the law minister to the CJI to set up a diverse search and evaluation committee goes some way in that direction. But it only tinkers at the edges of a broken system when the government is empowered to reform it root and branch.
The unwillingness of the government to take this course gives rise to the reasonable presumption that this time it is content with registering its protests about the collegium without abolishing it, critiquing its processes without reforming them, and castigating the Supreme Court without bringing it in line as it is constitutionally empowered to do. The collegium system, as it is functioning today, perversely gives the government great leeway without any responsibility. It is unsurprising that they are willing to criticise it and not bring in a constitutional amendment to do away with it.
As a system, it is trite that the collegium system of appointment has passed its sell-by date. Efforts to reform it by the Supreme Court — like providing reasons for appointing or not appointing particular persons —have been remedies that are worse than the disease. The government’s proposed search and evaluation committee is likely to go the same way unless it is part of a larger scheme of holistic reform.
Simply stated, the collegium has no basis in the Constitution and is an illegitimate judicial intervention. It has to go. A sensible system of appointment is one where no sitting judge of the Supreme Court or the high courts plays anything but a consultative role. In any vibrant democracy, it is the government that has the last word in appointing judges. It should be no different in India. As far as fears of judicial independence are concerned, judges must be independent irrespective of the system of appointment and not because of it. If ever independence hangs on a loose thread like the system of appointment and not on the integrity of the individual being appointed, the judiciary is anyway doomed.
There is only one debate about judicial appointments that can be truly meaningful at this time — that is a debate in Parliament on the intricacies in the system of appointment that will replace the collegium. That system must be transparent, must have checks and balances, and ensure that the government makes responsible selections. Any debate other than that is mere shadow-boxing. It is time to gently land the punches.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal
