Thinking Beyond

Anoop Swarup

In a surprise move, the Supreme Court in a decision of four to one on a five Judge Constitution Bench headed by Justice J S Khehar has now struck down Modi government’s move to take away the power of appointing judges from judiciary and vesting it on a more transparent body. The fact though remains that the apex court has promised to usher in reforms to make the Collegium system more transparent and accountable. But indeed the move opens up a Pandora’s Box as it puts the Higher Judiciary in a direct confrontation with the government that may bring in a second law to take over the power of appointing Judges. It was alleged that the proposed Bill could have destroyed judicial independence, but on the other hand the fact remains that in no country judges are appointed by judges themselves!

Let us re-examine the call for judicial reforms in its entirety as the start point for country’s reformation and renewal process. It may not at all be a surprise to many that in India we have the unfortunate distinction that 66% of prison population is of undertrails, more than 28% of the 2 crore cases pending in subordinate courts are over five year old, of the total pendency record 21 lakh cases across the country are more than ten years old and 15 lakh of these are criminal cases where many innocents may be behind bars. Though the Supreme Court monitored e-Courts project has brought several changes in the justice delivery system in the 15000 courts in our country through computerization and connectivity to the National Judicial Data Grid (NJDG) open to public. Yet, we do not have the performance of the 24 High Courts on the NJDG; it remains dismal to say the least. The disposal rate of cases has largely been in the negative domain as the total pendency of cases in all courts was 3.07 crore in 2014.

Do we have to emphasize anymore that we need large-scale and urgent judicial reforms in our country that have to be politically motivated. Reforms in the past have included codification and ratios on common law practices and movement from an inquisitorial system to adversarial system with strong judicial independence but the independence of the prosecution remains a moot issue where systemic reforms are the need of the day. Purportedly justice is done when the most effective adversary is able to establish to the judge that his case is the correct one. I may recount what Peter Murphy in his Practical Guide to Evidence had to say in the words of a frustrated English judge in an adversarial matter when after the barrister produced conflicting accounts ‘Am I never to hear the truth?’ ‘No, my Lord, merely the evidence’, replied the counsel. Not far from the truth as such in India, as in most cases. Let understand that in both adversarial and inquisitorial systems the powers of the State are separated between a prosecutor and the judge and allow the defendant the right to counsel. In criminal trials as we see in the matters where CBI is involved was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England gave suspects of felonies the formal right to have legal counsel. Indeed it was Baron Erskine who helped usher in the adversarial court system used in most common law countries such as in India today.

On the appointment of Judges, Japan’s process for selecting Judges is longer and more stringent than the process in United States as Assistant judges are appointed from those who have completed their training at the “Legal Training and Research Institute” in Wako City. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed. Judges do require at least ten years of experience in practical affairs, public prosecutor, or practicing attorney. In Mexican Supreme Court Justices are appointed by the President, and then are approved by the Senate to serve for a life term whereas in United States the Justices are appointed by the President and approved by the Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the United States is located in “Washington D.C”. The Federal court system consists of 94 federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States consist of five different types of courts subordinate to the Supreme Court. These are the U.S bankruptcy Courts, U.S Courts of Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S District Courts.

Let us have an inside view of the Collegium in India that has evolved as a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution. Under Article 124 which deals with the appointment of Supreme Court judges, the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary and the Chief Justice is to be consulted in all appointments, except his or her own. Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the Chief Justice of India and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. Let us also understand as to how the primacy of the Judiciary got evolved. On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the Collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the Chief Justice should have the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

Interestingly enough, Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case and for the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver. To overcome the confusion in 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really implied in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The issue, led the Supreme Court to lay down nine guidelines for the functioning of the Coram for appointments/transfers. and a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, strongly reinforced the “primacy” of the highest judiciary over the executive and came to be known as “Third Judges Case”. The pros and cons of the Collegium are critical as the burden of appointing and transferring judges without a separate mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees often would lead to a closed-door affair without a formal and transparent system apart from the limitation of the Collegium’s choice to only the senior judges from the High Court for ap-pointments to the Supreme Court. Thus the Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions, firstly to seek a reconsideration of the three judgments before the Supreme Court. and secondly for a law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

As a much welcome alternative to the Collegium and unfortunately so the setting up of a National Judicial Commission (NJC) was still a proposal until struck down now. The Constitution (98th Amendment) Bill in 2003 provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary. Let us also examine Supreme Court guidelines on appointments that provided, that the term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requiring consultation with a plurality of judges in the formation of the opinion of the CJI; that the CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice and as far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

Strangely cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over, instead what was proposed to be recorded is the “positive reason for the recommendation”. Though the views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion and the CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations, the recommendations by the CJI are not binding upon the government. The fact remains that the CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment but the CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge.

There is a lot of firework in store as the news headlines scream but the common man may perhaps has more to wait for meaningful reforms that may bring down the absolute numbers and the undertrails languishing in jails to quick justice so that this national shame may end soon. As one of the Judges of Higher Judiciary recently shared with me: of course ‘justice delayed is justice denied’ but and indeed ‘justice hurried is also justice buried ’. Very true, but how fast we achieve both and in equal measure is the real question. Here, lies the true test of our democracy and our success for both the government and the Judiciary and more than anyone else for the ‘common man’.