In order to build bipartisan support and public confidence, the draft amendment must articulate the goals of creating a competent, independent and socially diverse judiciary that upholds constitutional values and ethical institutional and personal conduct.
The Constitution (120th Amendment) Bill, 2013, and the Judicial Appointments Commission Bill, 2013, seek to reform the appointment of High Court and Supreme Court judges by establishing a Judicial Appointments Commission (JAC). This significant opportunity to reform a vital part of the Indian legal system must not be lost to misconceived rhetoric about the ‘independence of the judiciary’ and the ‘rule of law’ or the mistaken view that this measure simply pushes us back into past errors. A JAC that restores parity between the executive and judiciary in the judicial appointment process is constitutionally valid. However, the present proposal seriously misunderstands the minimum level of constitutional entrenchment of judicial appointment, as well as the optimal level of institutionalisation of the protocols and processes of appointment. Hence, Parliamentary deliberation must substantially modify these proposals for this reform to succeed.
Before turning to our suggestions for reform, we first begin by addressing recent arguments that the rule of law, and the independence of the judiciary, necessarily means that the judiciary must have primacy among the constitutional institutions in the judicial appointment process. It is useful to note that this argument has a weak historical pedigree: at no point in the Constituent Assembly Debates was such a proposition advanced.
In fact, while discussing the appointment of High Court Judges under Article 217 Dr. Ambedkar said: ‘With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition’.
In 1982, Justice P.N. Bhagwati speaking for a majority in SP Gupta (1982) held that Article 124 and 217 provided the executive the power to appoint judges fettered by the need to consult with the Chief Justice. Moreover, while reviewing the arguments for judicial supremacy in this process he cautioned that ‘in cases of this kind… a considerable amount of passion has been injected into the arguments on both sides and sometimes passion may appear to lend strength to an argument, but, sitting as judges, we have to be careful to see that passion does not blind us to logic and predilections pervert proper interpretation of the constitutional provisions…We can always find some reason for bending the language of the Constitution to our will, if we want, but that would be rewriting the Constitution in the guise of interpretation.’ Unmindful of his advice this is precisely what the court went on to do a decade later.
In Supreme Court Advocates on Record Association (1993) the Court changed tack to conclude that the principle of separation of powers and the doctrine of basic structure requires that the Court, acting through the Chief Justice, must concur with every judicial appointment. The Presidential Reference (1999) displaced the Chief Justice acting solo by allowing a view to emerge from the collective decision making among senior members of the judiciary through the collegium process.
It is useful to highlight that the current method of appointment is only two decades old and was not provoked by the inter-institutional tussles of the Emergency period with which they are sometimes wrongly associated. Moreover, there is little evidence that the change in the appointment process in the last two decades has enabled the higher judiciary to become a forum for principled rather than partisan decision-making or a meritocratic institution representative of India’s diversity. Hence, the current proposal is a timely intervention to reform a critical aspect of our constitution by paying attention to the first principles of constitutional design.
Many constitutions adapt the principle of separation of powers to design an inter-institutional process to constitute the judiciary. These institutions operate as a check and balance to ensure that no single institution has an overweening influence on judicial composition. Two inter-institutional arrangements dominate contemporary constitutional design: the judiciary and executive acting in concert (India and South Africa) and the executive and legislature (Federal court and Supreme Court in the United States). Where two independent institutions collaborate to appoint the judiciary, protocols of consultation and concurrence have developed to shape this relationship.
South African example
In South Africa, the JAC integrates these protocols of institutional collaboration to infuse the appointments process with more transparency and accountability. The present proposal for constitutional reform is best understood as a shift from the model designed in the Constitution of India, 1950, where two independent institutions collaborate, towards the South African Constitution, 1996 where the JAC institutionalises this collaboration.
By recasting the Indian debate in this fashion as a reiteration of the executive-judicial collaboration through a new institutional niche rather than a crisis about the rule of law we can acutely focus our attention on two key weaknesses of the current proposal: first, the lack of constitutional entrenchment and secondly, the inadequate specificity about the goals and operational processes of the JAC.
In the current proposal, the composition of the JAC and the process of appointment are set out in the draft statute. This is similar to the Constitutional Reforms Act, 2005 in the United Kingdom. However, the Indian constitutional tradition departs from the UK by embracing a written constitution and hence reform to the process of judicial appointment through a JAC and the new appointment process must be entrenched through constitutional amendment to resemble sections 174, 175 and 178 of the South African Constitution, 1996. Unless the proposed Article 124 A is expanded to include the composition of the JAC and the process of appointment it will be open to abuse by temporary majorities in Parliament and therefore poses a threat to the rule of law.
Secondly, we turn to the underspecified character of the proposed Amendment and Bill. They do not articulate the motivations for this major constitutional reform. To build bipartisan support and public confidence the draft Bills must articulate the goals of creating a competent, independent and socially diverse judiciary through a transparent and accountable process to select judges who uphold constitutional values and whose individual and institutional conduct is of the highest ethical standard. It is also unclear whether the JAC is a selection or appointment body as the JAC shall ‘recommend’ persons to the President and Governor respectively. Is the head of the executive bound by this recommendation or may she exercise jurisdiction?
It may be useful to clarify the scope of the discretion enjoyed by the executive — to appoint or not appoint — those recommended by the JAC. Section 174(4) of the South African Constitution, 1996 sets out a more elaborate requirement that constrains the President’s discretion and mandates that she give reasons while accepting or rejecting a recommendation.
Thirdly, as the JAC will be an important and new constitutional body the Amendment must specify in sufficient detail two areas of its work: the conduct of meetings, quorum and decision rules and the process of inviting applications, short-listing of candidates, interviews. Both processes should be transparent, open to the public and geared to achieve the goals of the appointment process.
Finally, the Amendment must articulate the qualities necessary to be a judge of the higher courts in India. The South African Constitution mandates that that an “appropriately qualified” and “fit and proper” person maybe appointed and that judges must reflect the racial and gender composition of the country.
Similarly, the UK Constitutional Reforms Act, 2005 specifies that subject to the condition of merit and good character, the JAC is expected to encourage diversity in the range of persons selected. The draft Amendment must institute a meritocratic culture that is sensitive to diversity in the higher judiciary to break the allegations that nepotism and kinship ties dominate the current appointment process.
This article was originally published in The Hindu on December 13th, 2013.