The Judicial Appointments Commission: A Delicate Balance

by Abhinav Chandrachud

On December 9, 2013, the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (hereinafter, “Standing Committee”), submitted its report on the Judicial Appointments Commission Bill, 2013, to both Houses of Parliament.[i] In this blog post, I will discuss some interesting recommendations contained in the Standing Committee’s report. In particular, I will highlight one such recommendation made by the Standing Committee which I think is particularly dangerous – one which stands to undermine the independence of the judiciary, by tipping the balance in favor of the non-judicial members of the proposed Judicial Appointments Commission.

Background:

The Constitution (One Hundred and Twentieth Amendment) Bill, 2013 (hereinafter, “Constitution Amendment Bill”),[ii] was passed by the upper house of India’s Parliament, the Rajya Sabha, on September 5, 2013. The Constitution Amendment Bill seeks to demolish the “collegium” model of judicial appointments in India, put into place by the two “Judges Cases” decided by the Supreme Court of India in 1993 and 1998 respectively.[iii]Under the collegium system, Supreme Court judges are essentially appointed by a “collegium” consisting of the Chief Justice of India and the four most senior judges of the Supreme Court. The Constitution Amendment Bill seeks to replace the collegium with a “Judicial Appointments Commission” (hereinafter, “JAC”).

However, the Constitution Amendment Bill does not actually say who the members of the JAC are supposed to be, leaving this for Parliament to determine in an ordinary statute. That’s where the Judicial Appointments Commission Bill, 2013 (hereinafter, the “JAC Bill”),[iv]comes in. The JAC Bill provides that the JAC will consist of six members: the Chief Justice of India, the two most senior judges of the Supreme Court of India, the Law Minister, and “two eminent persons”. The “eminent persons” on the JAC are supposed to be appointed by a collegium consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. It will at once be noticed that the JAC, in its present form, maintains a balance between its judicial and non-judicial members: it has 3 judicial members (the CJI and 2 puisne Sup Ct judges) and 3 non-judicial members (the Law Minister, and 2 eminent persons who are appointed by a “collegium” which consists of a majority of politicians).

In order for a constitutional amendment affecting judicial appointments to become law, it has to undergo three steps, prescribed by Article 368 of the constitution: (1) enactment by a super-majority of both houses of India’s Parliament (at present, the Constitution Amendment Bill has only been passed by the upper house); (2) ratification by the legislatures of half the states in India; and (3) assent by the President. However, if the Constitution Amendment Bill and JAC Bill get enacted, Parliament can, in future, fundamentally alter the character and composition of the JAC without having to go through the tedious process of constitutional amendment: the JAC Bill will be an ordinary statute which can be amended with a simple majority in Parliament.

The Rajya Sabha Debate:

The debate on the Constitution Amendment Bill in the Rajya Sabha was quite instructive,[v] particularly because speeches were made by lawyers like Kapil Sibal and Ram Jethmalani who had also appeared in the 1993 Judges Case. The bill was introduced by the Law Minister, Kapil Sibal. Interestingly, Sibal argued that the present collegium system had undermined the independence of the judiciary, by hindering the independence of High Courts. He argued, “judges who hope to come to the Supreme Court are looking to members of the collegium and what their views are on subjects.” Sibal also argued that the present collegium model of appointing judges lacks transparency: “Now, Sir, how is a Judge chosen? We have no access to that decision. There is no transparency because we don’t know how a particular Judge is chosen or why a particular lawyer is chosen to be appointed to the High Court where the RTI doesn’t apply. We can’t seek that information.”

The leader of the opposition in the Rajya Sabha, Arun Jaitley, echoed Sibal’s arguments in favor of the Constitution Amendment Bill. He said that the present collegium model of appointing judges had given rise to the phenomenon of the “Constituency Judge” on the Supreme Court:

“Each Judge in the Supreme Court belongs to one parent High Court. He has, obviously, some element of consideration, affection and concern for his parent High Court. The experience has shown that he becomes the Constituency Judge of that High Court, and therefore, his say in the appointments of that High Court becomes vital, and his day-to-day interests become very vital. Therefore, all aspirants, for being Judges in that High Court, whether he is the (sic) Collegium or not, have to be on his right side, have to be noticed by him because they feel that a substantial part of the say in the elevation to that High Court will be his. So, every High Court will have a Constituency Judge in the Supreme Court….The Constituency Judge will have his own likes and dislikes in that High Court. He decides to block the best man of that Court from being elevated to the Supreme Court. And till he gives the nod, the best man from that High Court will not come.”

Supreme Court judges in India mandatorily retire at the age of 65, and they are not precluded from being employed by the government after retirement. Jaitley said that this undermines the independence of the judiciary: “I think this whole temptation of continuing to occupy a Lutyens Bungalow is a very serious temptation”, he said, continuing, “The desire of a post-retirement job influences pre-retirement judgments. It is a threat to the independence of the Judiciary.” Like Sibal, Jaitley also called for greater transparency in the criteria for judicial appointments. Going a step further, Jaitley argued that judges should be appointed on the basis of objective criteria (reiterating what he had previously said during the impeachment proceedings of Justice Soumitra Sen[vi]):

“what is the academic qualification of a candidate, how many years he has put in as a lawyer. Today, in a world with information technology available, how many cases has he argued? How many cases that he has argued are actually reported judgements? How many articles has he written? How many papers has he presented? How many seminars has he addressed? How many juniors has he trained? What is his level of income?….Impressionistic assessment is what takes place today. It has to be replaced by an element of objectivity.”

Ram Jethmalani seemed to be the lone voice in the Rajya Sabha against the Constitution Amendment Bill. Jethmalani said that it was “wholly unconstitutional”. In particular, he said that the composition of the JAC should be reflected in the constitution itself, and not in ordinary legislation. Otherwise, Jethmalani argued, Parliament would be able to “demolish the whole thing and substitute it with a Judicial Commission which will consist of only the Law Minister.”

Eventually, the Constitution Amendment Bill was passed despite objections from voices like Arun Jaitley, Ravi Shankar Prasad, and Ram Jethmalani, who wanted the Constitution Amendment Bill to be referred to the Standing Committee. Leaders of the BJP staged a walk-out during the debate, because the Constitution Amendment Bill was not being referred to the Standing Committee. It is therefore important to point out that the Standing Committee report comments on the JAC Bill, not the Constitution Amendment Bill.

The Standing Committee Report:

The Standing Committee (which, among others, had Ram Jethmalani on it) made some recommendations for modifying the JAC. Importantly, the Standing Committee recommended adding a 7^th member to the JAC: one more “eminent person”, who “should be from SC/ST/OBC/Women/minority, preferably by rotation”.[vii]This is a dangerous suggestion because it tilts the balance of power on the JAC in favor of its non-judicial members. It will be recalled that the JAC, in its present form, has 6 members: three judicial and three non-judicial (the “eminent persons” count as non-judicial members since they’re appointed by a collegium consisting of a majority of politicians). By adding a third “eminent person” to the JAC, the Standing Committee has recommended that the non-judicial members should outnumber the judicial members on the collegium 4 to 3. This will give the executive an upper hand in the judicial appointments process. Of course, it is arguably a laudable objective to ensure some minority representation in the JAC, and the Standing Committee could have recommended that one of the two “eminent persons” be picked from a minority background. Instead, by recommending the addition of a third “eminent person” to the JAC and keeping the number of judicial members on it the same, the Standing Committee has threatened to disturb the executive-judiciary balance maintained on the JAC in its present form, in the garb of minority representation.

However, the Standing Committee also made some good recommendations. For example, supporting Ram Jethmalani’s speech in the Rajya Sabha, the report said that the structure and functions of the JAC should be put into the constitution itself, so that the composition of the JAC cannot be altered without a constitutional amendment.[viii]Though the Standing Committee was only commenting on the JAC Bill, this has implications for the Constitution Amendment Bill as well. If accepted, this recommendation will require the Constitution Amendment Bill to be amended.

Further, the Standing Committee also recommended that the government should consider putting into place a procedure whereby an “eligible member of the Bar” can be given an opportunity to apply for a judgeship, “through public notification etc.”, “in an objective and transparent manner through advertisement as is the practice in the United Kingdom.”[ix] India presently follows the “tap on the shoulder” method of judicial appointments. For example, you can’t really formally apply to be a High Court judge if you want to: the Chief Justice of a High Court (or another senior judge) has to tap you on your shoulder and ask you if you’re interested in accepting a judgeship. This system of judicial appointments is widely perceived to be discriminatory because it inherently makes it more difficult for minorities to get to the Bench. For this reason, judicial positions in the UK are advertised, and candidates are encouraged to apply (hence the slogan: “don’t be shy, apply!”).[x]

Conclusion:

Supporting Ram Jethmalani’s speech in the Rajya Sabha, the Standing Committee’s call for giving constitutional status to the composition of the JAC must be welcomed. The Constitution Amendment Bill at present permits Parliament to modify the composition of the JAC without going through the rigors of a constitutional amendment. In future, Parliament can, for example, take even the Chief Justice of India off the JAC without a constitutional amendment. Further, some of the Standing Committee’s other recommendations, like reforming the present “tap on the shoulder” system of judicial appointments, must be equally welcomed. However, the Standing Committee’s recommendation for adding a third “eminent person” to the JAC, in the garb of minority representation, will upset the balance between the judicial and non-judicial members of the JAC, and must therefore be seriously thought through.

(The writer is a doctoral candidate at Stanford Law School)

Image courtesy: here, here and here. The images do not necessarily reflect the arguments or points made in this blog.