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Judge thyself

In no other democracy governed by the rule of law does its apex court give itself such a power regarding appointments, writes AG Noorani.

india Updated: Sep 12, 2006 02:03 IST
AG Noorani

Last April, Baroness Usha Prashar, Chairperson of Britain’s Judicial Appointments Commission, assumed all the powers which the Constitutional Reforms Act, 2005, confers on her in that capacity and on the Commission as the Act came into force.  It has been officially described as a “significant step in setting up a transparent and robust method” of appointing judges. It holds many lessons for India.

The commission is a body corporate inter alia of 14 members; five of which are ‘lay people’ and five judges. There is a new Supreme Court of Britain consisting of 12 judges, and the House of Lords stands shorn of judicial functions. The Lord Chancellor survives, but as a Minister of Justice. Under the Act he need not be a lawyer. The Supreme Court will have a President, a Deputy President and ten other judges.

The Lord Chief Justice holds the office of President of the Courts of England and Wales and is Head of the Judiciary of these regions (but not of Scotland). The Act has some novel features. The Chief Justice of any part of Britain may lay before Parliament written representations on matters that appear to him to be “of importance relating to the judiciary or otherwise to the administration of justice” in that part of Britain. Section 3 (1) of the Act says: “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the administration of justice must uphold the continued independence of the judiciary.”  Further, they “must not seek to influence particular decisions through any special access to the judiciary”. These provisions were inserted in a concordat between the PM and the Lord Chief Justice on which the Act is based.

It lays down an elaborate procedure for selection and appointment of judges. The details are less relevant to us than the raison d’etre of the process and its background.

The judicial appointments process currently in vogue in India is a sham. It rests on the ipse dixit of the Supreme Court pronounced in a judgment on October 6, 1993, by a majority of 7 to 2. In a detailed critique in his work, Constitutional Law of India, the country’s foremost constitutional lawyer, HM Seervai, opined that the majority judgment was “null and void” in the circumstances in which it was delivered, as exposed by Justice MM Punchhi in his dissent. The court was to reopen on July 12, 1993 — five judges in the majority chose to sign a joint judgment on June 14 during the summer vacations. Three other judgments were signed on subsequent dates. “Supplementary judgments were given by the five judges thereafter in response to other judgments. The entire process violated Act 145 of the Constitution.” The product reflected the process. The majority and concurring judgments, Seervai wrote, “bristle with almost every fault which can be committed in a judgment”.

BR Ambedkar explicitly said in the Constituent Assembly on May 24, 1949: “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.” He proposed “a middle course” — consultation between the two. The Constitution provides just that. Yet, in the teeth of this authoritative exposition, the majority ruled that no appointment of any judge to the Supreme Court of India or any high court can be made unless it is in conformity with the opinion of the Chief Justice of India. This ruling, however, did enjoin him or her to consult two other judges.

What he had written as Chief Justice of India, Justice Punchhi proved true by his conduct in his dissent about the danger of conferring such a power on the CJI. He made questionable recommendations on appointment after arbitrary consultations. The President was constrained to seek the court’s advisory opinion. On October 28, 1998, the court raised the quota from two to four. This is what passes for a ‘collegium’ today.

It has neither constitutional validity nor moral legitimacy. In no other democracy governed by the rule of law does its apex court give itself such a power regarding appointments. Our system deserves this censure. “Judges choosing judges is the antithesis of democracy. In almost all major common law countries — the US, Canada, Australia and South Africa — the executive chooses the judiciary, although sometimes with advice from a Judicial

Appointments Commission (JAC),” Robert Stevens opines in his mini-classic The English Judges: Their Role in the Changing Constitution. He is a scholar and a lawyer. In India the species is extinct. The book is valuable because it traces how resistance to the JAC was overcome. We have been struggling to get on since 1990. Every single CJI has opposed it. No one likes to shed power, be they a judge or a politician.

The Times, London, asked the Lord Chief Justice, Lord Woolf, to “make up his mind whether he is a liberal reformer or the shop steward for the only trade union in the country whose members wore wigs and not hard hats or cloth caps”. That members of a similar trade union in India wear none of these  is irrelevant.

The distinguished QC David Pannick advocated the setting up of a Judicial Appointments Committee in 1987 in his book Judges. “At present we work on the doubtful principle that the Lord Chancellor and Senior Judges will know the candidates for judicial office, professionally or otherwise.” Britain is a much smaller country than India.

The obvious remedy began to attract support in Britain as it has in India. To meet criticism the Lord Chancellor’s Department published a pamphlet on judicial appointments describing the selection process. In 1999, Sir Leonard Peach submitted a report to the Lord Chancellor entitled ‘An Independent Scrutiny of the Appointment Process of Judges and Queen’s Counsel’. The Lord Chancellor Lord Irvine set up an advisory body, the Commissioners for Judicial Appointments, chaired by Sir Colin Camphell.

But Irvine was not prepared to relinquish his powers. On June 12, 2003, PM Tony Blair sacked him and announced plans for the creation of a Supreme Court, a JAC and a Department for Constitutional Affairs. Robert Stevens carefully traces the debate that ensued, especially in the House of Lords.

Finally, on January 26, 2004, came a concordat between the Lord Chief Justice and the government. Its text is instructive. This paved the way for the enactment of the Constitution Reform Act. On appointments to the bench it preserves an even balance between the State and the judges; very much as Ambedkar had envisaged in 1949, only to be overturned by the Supreme Court in 1993.

Stevens renders a service by describing how quiescent judges became assertive; some even crossing the limits. Lord Bingham, the senior Law Lord, puts it neatly: “The courts tend to be more assertive, active and creative when political organs of the State are least effective.” Since 1990, India has had weak governments at the Centre. Stevens cites precedents for such assertion and delivers a wise caution. “History is littered with examples of judicial hubris ending in judicial tears.”