A Surya Prakash
The ugly controversy that has erupted over the proposed elevation of Chief Justice PD Dinakaran of the Karnataka High Court to the Supreme Court is illustrative of the wide-ranging dissatisfaction across institutions and professions over the present system of appointment of members of the higher judiciary. It is indeed rare to see so many Bar Associations (Karnataka, Tamil Nadu, Delhi and the Supreme Court) raise their voice against an appointment and to press for a system of selection of judges that is transparent and fair.
The frustration that is visible in the reactions of lawyers via these fora is understandable given the inaction in judicial and executive quarters even to the weighty opinions of important national commissions, standing committees of Parliament, eminent jurists and professional bodies, all of whom have been pleading for a more broad-based system to select judges.
While under the law as it exists today, it is entirely up to the collegium of judges to take a call on the allegations levelled against this particular judge, the hullabaloo over Justice Dinakaran’s elevation only highlights the inadequacy of the procedure that is in vogue ever since the Supreme Court accorded primacy to the opinion of the Chief Justice of India and the collegium of judges in choosing members of the higher judiciary.
The National Commission to Review the Working of the Constitution, which was headed by former Chief Justice of India MN Venkatachalaiah, declared in 2002 that it was not satisfied with the present arrangement in regard to judicial appointments in which the opinion of the collegium of Supreme Court judges would have primacy over the opinions of others, including that of the President. It called for a more participatory mode which would ensure effective participation of both the executive and the judiciary. It noted that on a plain reading of Article 124 of the Constitution, the power of appointment of judges vests in the President and the President is expected to perform this function “after” consultation and not “in” consultation with the Chief Justice of India.
The Commission recalled how the law in regard to judicial appointments had undergone change over the years. For example, Article 217(1) of the Constitution requires the President to consult the Chief Justice of India, the Governor and the Chief Justice of the High Court while appointing judges to the High Courts. In SP Gupta’s case (First Judges Case), the question arose as to whether among the three judges to be consulted, the Chief Justice of India had primacy. The court said that Article 217(1) placed all the three functionaries on the same pedestal.
In the Second Judges Case (1993), the court said the Chief Justice of India must take into account the opinion of two senior-most judges of the Supreme Court to ensure that the opinion is not merely his individual opinion but is in fact “the collective opinion of the body of men at the apex level in the judiciary”. Also, the opinion of the Chief Justice of India so formed “should be determinative and almost binding on the President”. The court favoured an “integrated participatory consultative process” for selecting the best and most suitable persons available for appointment. However, in case of a disagreement between the President and the Chief Justice of India, “the opinion of the latter must prevail”. Later in 1998, the court described the collegium as the Chief Justice of India and four senior-most judges when this issue came up yet again via a presidential reference under Article 143.
The NCRWC felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a National Judicial Commission headed by the Chief Justice of India and comprising two senior-most judges of the Supreme Court, the Union Law Minister and an eminent person nominated by the President in consultation with the Chief Justice of India should select judges. The NCRWC said, “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations.” In other words, it wanted the consultative process to be more broad-based.
Parliament has been exercised over the complete monopoly of the judiciary in regard to appointment of judges ever since the Second Judges Case. In 2006, the Parliamentary Standing Committee on Law and Justice expressed its dissatisfaction with the procedure adopted since 1993. It urged the Government to come up with an alternative mechanism which would ensure the involvement of both the executive and the judiciary in the process of selecting judges.
More recently, the Second Administrative Reforms Commission has come out strongly in favour of a National Judicial Council to select judges. Though the Second ARC differed from the MN Venkatachalaiah Commission on the composition of this body, the central theme remained the same. It said the NJC should be headed by the Vice-President and comprise the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India, the Union Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha. It said the appointment of judges should be a bipartisan process above day-to-day politics.
However, all these suggestions and the unanimous opinion against the present system of appointment of judges have just not been acted upon. Apart from the commission headed by Mr Venkatachalaiah, committees of Parliament, the Administrative Reforms Commission, the Forum for Judicial Accountability, eminent jurists and legal luminaries like Mr Shanti Bhushan, Mr Fali Nariman and Mr Ram Jethmalani, and Bar Associations are seeking a more transparent and credible system to appoint judges.
The judiciary, however, seems unwilling to shed its insular approach to judicial appointments and the executive appears to lack the moral courage to make law on the lines suggested by Mr Venkatachalaiah and others to overcome the limitations imposed by the Supreme Court in the Second Judges Case. By resisting change, the higher judiciary is giving the impression that it is still not ready to apply the principles of transparency and accountability which it enforces in other organs of the state. If this impasse continues, we can be certain that the current rumpus over a judge’s elevation to the Supreme Court will not be the last. Over to the Chief Justice of India.
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