(Abstract: Justice J. Chelameswar speaks about judicial accountability and transparency in judicial appointments as critical to the survival of a healthy democracy. In this lecture he underscores the need to maintain the standards and efficiency and quality, a periodic audit, not only of the performance of the individual judges but also the performance of the system. It was through robust and rigorous debate that the architects of the Constitution put in place a high moral standard that would guide the people of the country. It is that kind of debate which is required today).It is both an honour and pleasure to participate in this programme in memory of a departed friend, Mr. Kannabiran. I never addressed him that way while he was alive, though he was a generation older to me. For young and old, his own contemporaries, and friends, he was 'Kanna'. A very dear Kanna. He never believed in these formalities, and he never let us believe in them.
My association with Kanna started sometime in 1984, though I knew him before as well. By the time I entered the profession in 1976, he was an established senior advocate –but an angry young man! Of course, not very young, I was 23 when I entered the profession and he must have been at least 16 -17 years older to me. He was in his 40s, but a firebrand. It was Emergency period. Not many were willing to speak out, some out of fear and some out of the belief that it was good for the country for whatever reasons. A few bold souls were saying it was not good for the country. Insofar as AP High Court was concerned, Kannabiran was one of them. I and quite a few other youngsters were of the opinion that Emergency was not good for this nation. I was certainly not as bold as Kanna was. Although I was also of the clear opinion things were going wrong, I never went into action in those days — in the sense of interacting with the public and debating issues. But I used to admire not only Kanna, but also a few other members of the Bar who were at the forefront of the debate.
My real interaction with Kanna started in 1984, when the government led by late NT Rama Rao was pulled down, leaving a trail of turmoil in the then state of Andhra Pradesh. It was a real turmoil, judging by the number of lives lost. If I remember right, in one incident in Anantapur, 14 people were shot to death. Kanna, representing the PUCL those days, played a very active role. He had neither any personal association with NTR nor any political affiliation with NTR's party. Kanna saw the whole episode as an assault on the democracy guaranteed by the Constitution. In that context, Late Mr. Palkhiwala was invited to address a public gathering in Hyderabad. Kanna called me, as I was associated with NTR closely, and said: "We are fighting your cause and you don't do anything to support us." I asked him to tell me what he expected from me. He said that the least I could do is to extend some logistic support, and suggested that Mr Palkhiwala be picked up from the airport and brought to the venue. Fortunately, I had a car those days and I agreed to undertake the suggested task.
That is how my association started with Kanna, and it continued until he left this world.
I will speak on the judicial appointment process and the accountability of the judiciary — not general accountability, but accountability in the context of the process of appointments to the Constitutional Courts and NJAC as it came to be called popularly (or unpopularly). Judicial appointments in the Republic of India have always been shrouded in mystery. I'm sure there are lot many people who would agree with me. At least, Kanna always agreed with me in these matters. Neither in the pre-NJAC nor the post-NJAC period, was the process very transparent. Maybe it was an old British tradition. We claim to have secured independence from foreign rule, but continued some of those traditions without really examining the utility of those traditions and practices in a democratic republic. The text of the Constitution made clear stipulations regarding the process of judicial appointments. In the context of the appointment of judges of the high court, it is by recommendation of the chief justice of the High Court and the governor (in other words, local government/cabinet). Then the recommendations go to the Government of India after appropriate procedural verifications. The matter then goes to the Chief Justice of India before they are finally sent to President (in other words the Government of India). Invariably, in the process, some role is played by the political executive. Not only in India but all over the democratic world. In some countries the role is more emphatic. In the American system the nominations are made by the President directly (nothing to do with the Chief Justice of America). In India though, the process is initiated by the Chief Justice, either of a High Court or the Supreme Court.
In the Supreme Court Advocates on Record Association case, a Constitution bench of the Supreme Court almost held that governments did not have a say in the matter of choice of individuals for elevation to the bench of the High Court or Supreme Court. Prior to 1993, I have known cases where Chief Ministers used to suggest to the CJ of the High Court to consider and recommend certain names. The CM being the elected representative of the people, may have innumerable considerations — some of them legitimate. The CJs, in a true democratic spirit, considered those suggestions. There used to be some discussion before accepting or rejecting the recommendations. In practice, in some cases the considerations on which a particular name was suggested by the CM or the even the CJ, might have been questionable. That is a different matter. After all, so long as the institutions are run by agencies, some element of subjectivity is inevitable. The question is how good the process has been from the point of view of the people of the country.
Prior to the Supreme Court Advocates Association case, when governments had considerable say in the matter, many suggestions/recommendations made by the government turned out to be good. There could have been a few bad suggestions. Post the NJAC, please recollect some recommendations made by the collegium of the Supreme Court, was not approved by the Government of India for quite some time.
There was some debate — healthy and unhealthy. One of the honourable members of the Union Cabinet at that point of time — he is no more unfortunately — published in his twitter, advising his political opponents that they should look into the mirror and introspect as to what they did when they were in office! He mentioned specific names of the Judges and the political personalities who recommended the names of those judges.
These are all part of the record. I'm not saying anything which is not available in public domain. But I'm mentioning this only to say that some amount of political participation has always been there and I personally believe that there is nothing wrong with it. That's what I said in my dissenting opinion in NJAC judgment. Although everybody had their own understanding of the judgment, I found it totally difficult to accept a proposition that in a democratic Republic, elected government should have no say at all in the matter of selection of judges to the constitutional courts. We may or may not like some political leaders or some political parties. But let us not forget that governments as well as courts owe their existence to the document called the Constitution. The text of that very document indicates that the government has a say in the matter. It mentions the role of the government and the judiciary, that is, a consultative process between the executive and judiciary.
As Justice J. S. Verma put in the Supreme Court Advocates Association case, it's not in the spirit of the winner takes all. It is an exercise of trying to identify the best for working a great institution like the judiciary, which is meant eventually for the welfare of the people. That should be the spirit in which examination or debate or discussion should take place. It is not the question of who is superior to whom, or who should have the ultimate say. If we believe genuinely that this process is meant for identifying the best people to be judges of the constitutional courts of this country, then these questions – who is superior, who is inferior, who has the last word – do not arise. It is a participatory process of identifying the right people.
Unfortunately, arguments were advanced and accepted by the majority that the mere participation of the law minister in the body of the NJAC, brought in by the constitutional amendment, would be detrimental to the independence of the judiciary. That is the law today. Similar was the stance taken in respect of participation of the member of civil society. Recollect the scheme of the NJAC. It consists of three senior-most members of the Supreme Court, the law minister, and two eminent members of civil society chosen by a committee consisting of nominee of the government, leader of the opposition and CJI. There were serious objections to both these elements – the participation of law minister and members of civil society. The conclusion of the majority that the participation of the members of the civil society and the Law minister is detrimental to the independence of the judiciary was something which I found difficult to accept, and therefore my dissenting judgment.
Lord Acton said, "all power corrupts and absolute power corrupts absolutely". Corruption need not necessarily mean monetary corruption. It can take various forms – abuse of power i.e., using of power for purposes other than which it is intended, is corruption according to me. This kind of abuse of power always takes place, and took place in the last 70 years. In fact, around the time when the NJAC case was being heard in the Supreme Court, Abhinav Chandrachud published a book, The Informal Constitution – I'm referring to the book because we are trained in a legal system where everything is dependent upon evidence. There is recorded evidence in that book regarding the abuse of power by the political executive prior to the Second Judges case. Government sat on the recommendations made by the CJs, government delayed the appointment process because the suggestions made by the CJs of a High Court or the Supreme Court was not to their liking.
Certainly, if the Government has concrete and legally tenable material to object to a recommendation, they have a right to object and discuss with the CJ. But simply not deciding anything – sitting on the matter, without clearing the recommendation, is certainly not a democratic process nor is it a healthy practice. Such things happen. The Informal Constitution gives specific instances. I remember particularly a case in Madhya Pradesh where the name of a particular Additional judge was recommended on three occasions by the CJ concerned for permanent appointment. Every time, the Government of India issued orders extending the tenure of additional judgeship. Post the Second Judges case, when the collegium had much greater say in the appointment process of the members of the constitutional courts, there are instances when the collegium did not exercise the authority strictly in accordance with the demands of the Constitution – letter and spirit of the constitution, as explained by the judgment of Supreme Court in the Second Judges case. I've recorded in my dissenting judgment, at least two such instances. It is not that there were just two, there were more and recorded too. My idea was not to create a controversy. All of us, acquainted with the appointment process know that ultimately, each of the branches under the constitution, the legislature, the executive and the judiciary are political branches in the philosophical sense. There is nothing very pious or otherwise about them. Democracy itself is a political process. When you say that an independent judiciary is the hallmark of democracy it is an equally political statement.
Now the question is whether electoral politics and elected representatives of the people should have some say in the process of appointment of the members of judiciary. I believe it is difficult to say that they should have no say at all. I must also say that it is not my idea to say that the power of appointment should be handed over to the political executive. As it was rightly pointed out in the Second Judges case, it is a participatory process, for identifying the best talent and the best persons. Participatory process is a philosophical statement -- what exactly is the process, and how it is to be outlined, what are the procedures that are required to be adopted, can be determined by law. Either it is statutory law made by the parliament, or a constitutional amendment. NJAC was one such experiment. By a constitutional amendment Parliament almost by unanimous vote amended the Constitution. If I remember right, there was only one vote against the bill – all others believed that the existing procedures needed some modification, and therefore, Parliament prescribed a different procedure. Please examine the question!
After declaring such an alternative procedure to be unconstitutional for being not conducive to the independence of the judiciary, how did the appointment process go on in this country, for the last five years after that judgment? The information is in public domain. In any system run by human beings, absolute perfection is not possible. Some amount of imperfection is always there. The question is what is the quantum of that permissible imperfection? What is the degree of that imperfection? By and large, did it yield better results than what the NJAC would have yielded? I'm not saying either the NJAC or existing regime, or the regime that existed pre-Second Judges case would yield perfect results in choosing the best talent/ most suitable judges/ most upright judges/most learned judges. I don't think it's possible in the system. But the question is, if a good number or a substantial number of judges chosen by any one of these processes turn out to be learned/virtuous/hard working, then the system is good. India experimented with the regime that existed prior to the Second Judges case – that is when the government had a considerable say in the selection process, and eventually the Supreme Court said that this process is not very wholesome, looking at it from the point of independence of judiciary, which in turn is a condition precedent to the development of a healthy democracy. An alternative procedure was devised by the Supreme Court. There was bitter criticism about it, saying that the Supreme Court legislated. Much stronger language was used saying that the Supreme Court usurped the power of the government. The process changed. Did it yield any better result, is a question?
The opinion seems to be, even I believe, that it was not much better. Lot of things which are not wholesome happened, and perhaps they continue to happen. The point is how to rectify the system? There can't be two opinions that a law declared by the Supreme Court is binding on all of us. There is a very profound statement by a famous American jurist, Laurence Tribe, in his preface to his commentary on American Constitutional Law. He says – "I do not regard the rulings of the Supreme Court as synonymous with constitutional truth.... [T]he Courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible." The scholarship and the wisdom of the author comes in the next statement. He says, "Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos: the Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity…" (pp. vii-viii). I think that's a very profound statement. There is nothing final in matters of human affairs. What appears to be very good today may, a few years after the experience, appear to be not so good.
Similar is the conclusion of the Supreme Court in the Second Judges case, or in the majority opinion of the NJAC, without meaning any personal disrespect. This is only an academic analysis. In my opinion, if something is not good, either you mend it, or worst-case scenario, end it. As a student of constitutional law, I can't plead for ending it. I remember the argument before the Supreme Court in the Golaknath case. A bold argument was made by Government of India that if the Supreme Court starts interfering with the constitutional amendments made by the Parliament from time to time, it would lead to a revolution in the country. The then Chief Justice Subba Rao speaking for the majority said there was nothing to choose between destruction by amendment and destruction by revolution. Let's not go that far, but let us also understand that whatever Supreme Court says is not always synonymous with constitutional truth. With utmost respect to the institution of which I was a member myself for some time – it is an institution I hold in great regard – I believe that for the survival of a healthy democracy, a healthy independent, high quality judiciary is essential.
But to maintain the standards and efficiency and quality, a periodic audit, not only of the performance of the individual judges but also the performance of the system as such is required. Unfortunately, in my opinion, that kind of an audit – an open debate, a rational and healthy debate devoid of partisan political views is becoming scarce in this country. I must mention a particular occurrence. Whenever a Chief Justice of India retires, the Prime Minister holds a dinner for all the judges of the Supreme Court. A few senior cabinet members, and senior bureaucrats are also invited. In one of those dinners, most probably when Justice Kapadia was retiring (I don't remember exactly), a dinner was organized at the residence of the then Prime Minister, Dr Manmohan Singh. One of the senior members of the cabinet who was present casually started a discussion, referring to a particular judgment which had been pronounced by the Supreme Court a few days earlier and said, "it requires a second look". I told the gentleman, who at some point of time earlier held the Law Ministry: "I must tell you two things – it is too serious a matter for a dining table conversation; it requires an in-depth debate in an appropriate forum. Second, you should have thought of these things when you were holding the law ministry, not now." My entire point is that debate is missing. Discussion and analysis of judgments have completely become partisan, on either side. When I wrote the dissenting judgment of NJAC, the ruling party felt that I wrote something in their favour and the opposition believed that I supported the ruling party. But a few years later the views reversed. Some people believed that I was against the government, some believed I was in favour of the opposition. It is too simplistic a way of looking at things without debating.
Why is so much importance given to the Constituent Assembly Debates in the court hall? Whenever there is a constitutional issue, invariably reference is made to the Constituent Assembly Debates. Everybody refers to Babasaheb and various other eminent personalities. It is not because they were members of a particular body, but because they had a great experience of a lifetime behind them. They contributed to the history of this country. They fought for the liberation of this country. It is said, the wisdom which comes out of real-life experience cannot be matched by any amount of study in a library. They were the people who went through that experience. They debated, deliberated, and created the constitutional structure with the firm hope that this country in future would follow certain principles embodied in the Constitution for the overall welfare of the people and society. That is why the preamble mentions "We the People...". It is all meant for the people. It is in that spirit that the debate went on in the constituent assembly. It is for that reason we refer back to the constituent assembly debates whenever there is a serious constitutional question. It is that kind of debate which is required.
I'm not advocating the summoning of a constituent assembly again, but a debate of that quality. An audit of the existing system. The fact remains today, whether we like it or not, the efficiency levels in a system leave a lot to be desired. Both civil and criminal cases take decades to reach a finality from the lowest court to the Supreme Court. The problem requires in-depth analysis – why is it taking so long? How is it that we always get into controversies that particular cases are heard on a priority basis by the High Court or Supreme Court while other older cases are kept pending. Should not there be a more rational process? And how do we achieve such a rational process? These are the matters which could be debated. I'm sure it's not impossible for any society of human beings with intelligence and education to find solution for any problem. The solution may not be eternal or perfect, but then it is possible.
If we don't wish to continue in this spirit, we could have as well continued to live under the British. Why did we fight against it? Because we believed that it is not good for the nation. Now after achieving the independence from foreign rule, have we achieved everything? The constitution proclaims many noble ideals, it has many dreams written into it. How many of those dreams have been realised in the last 70 years? And if we have not been able to realise them, why did we fail? Where did we fail? These are the matters which require constant ongoing debate not only in civil society, but in all elements of the Republic – the law makers the civil society, the judiciary. Only then can we expect a more efficient, transparent judicial system. So long as we believe that judiciary is something the working of which can't be looked into, the process can't be examined or analysed, the situation isn't going to improve. We will continue to have the same system and it may ultimately not be very conducive for the health of the judicial system and in turn, the health of democracy in this country.
Now, one last aspect I would like to mention is regarding the law laid down in the NJAC case. It is the law of the land for the time being. The Supreme Court has the last word on paper. Then, should there not at least be a more discernible record of the proceedings undertaken by the collegium. When I decided not to participate in the collegium meetings, that was my objection. I said, please record. If let's say, a particular judge is transferred from one high court to another, some minimum record has to be there as to why that judge is transferred. What are the reasons which prompted the collegium to transfer the judge? Or if the name of a particular candidate recommended for elevation to a High Court is to be rejected, let it be on record why the collegium or majority members of the collegium are of the opinion that the candidate is unsuitable for elevation. It is an assessment that is required to be made. That is the role of the collegium or the government who is the ultimate appointing authority. An argument is sought to be advanced that if the material is published it would have an adverse effect on the life and reputation of the candidate. I have never said publish the proceedings. I only said at least let the other members of the collegium know. Let the Government of India know for what reason a candidate is rejected or a candidate is transferred. Or somebody in the democratic system, at least the next Chief Justice, should know why a particular recommendation was rejected earlier. Otherwise, a name which was rejected today gets approved a year later when the CJ changes or the composition of the collegium changes. Why go through this exercise then? That minimum record is required to be maintained – was the point I was making.
My decision not to participate became a huge controversy. Politics entered the debate – it makes no difference to me. I'm a pensioner today, in the last leg of my life. But if you're talking about the country, society, democracy, these are matters which require debate and examination. And if we the people of India – civil society, the legislature, the political parties – realise and start debating it, we can create a machinery or a mechanism of audit, of both the institution and individual incumbents of the institution. That would be a great day for Indian democracy and a true tribute to the departed soul of Kanna (of course, he perhaps never believed in the theory of soul), but I do.
Golaknath v. State of Punjab 1967 AIR 1643.
Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441 (Second Judges Case)
Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 (NJAC)
Chandrachud, Abhinav. 2014. The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court. Delhi: Oxford University Press.
Tribe, Laurence. 1988. American Constitutional Law. 2nd Edn. Mineola, New York: Foundation Press.(Justice J. Chelameswar was judge of the Supreme Court of India from 2011 to 2018. Earlier, he was the Chief Justice of the Gauhati High Court and the High Court of Kerala. He wrote the dissenting judgment in the NJAC case).
This is the eighth lecture of K G Kannabiran memorial lecture series.
First Lecture by Justice B Sudershan Reddy, former Supreme Court Judge -Death Of Democratic Institutions: The Inevitable Logic of Neo-Liberal Political Economy & Abandonment of Directive Principles of State Policy.
Fifth lecture by Justice K Chandru : Need For More Kannabirans Felt Now With Ever Increasing Human Rights Violations : Justice K Chandru
Sixth lecture by Advocate BB Mohan : Criminal Law and Human Rights: 'Distinctive Discrimination' and Article 21 Rights to Fair Trial
Seventh lecture by Advocate V Raghu : The Constitution and Scheduled Tribes in Composite State of AP