An Open Letter To The Law Minister: The Origin And Not An Unqualified Rationale Of The Collegium System Of Appointments

This is with regard to your observation that the collegium system of appointments is alien to the Indian Constitution. Like all constitutions across the world, not everything is written in the constitution. And, not everything written in the Constitution is immutable. Our Constitution provided for nebulously "consultation" with the Chief Justice of India, for judicial appointments. The word "consultation" has legitimate interpretations given the immensity of the scale of the decision. In due course of time, noting the serious issues of independence cropping up, was read as "concurrence" of the Chief Justice. You are well aware of the historical necessity and backdrop for this not so tectonic shift. 'Independence' and 'political neutrality' were then, as much they are now, central to the thrust of the interpretation. To avoid the decision to be taken by the Chief Justice individually, by judicial innovation, was read in SCOARA (1993) to mean a collective decision of 5 senior most judges.

There is not a word on the genesis of the concept of the collegium of judges in the three defining decisions, be it the SCAORA 1, Special Reference No. 1 of 1998 or the NJAC judgment. This was, introduced by, believe it or not, Harold Laski, the most influential professor of his generation in his seminal work 'The Grammar of Politics' as far back as in 1967.

Historically, in England, the key and decisive player in making judicial appointments was the Lord Chancellor, the very equivalent of the Law Minister in India. The office of the Lord Chancellor was a constitutional anachronism. He was a Cabinet Minister, Head of the Judiciary, a Senior Judge and also the Speaker of the House of Lords.

In this scenario, it was but natural that the British appointments system evolved into a system of political patronage. From 1832 to 1906, 80 Members of Parliament were appointed as judges, 63 were appointed while their party was in power. Lord Halsbury held the office of Lord Chancellor for over 17 years. R.F.V. Heuston, noted, "Halsbury appointed to the High Court and to a lesser extent to the County Court, men of little or no legal learning whose previous career in public life had been largely in the service of the Conservative party or else were relations of his own".

Laski, having analysed the excesses of the executive driven system of appointments in the U.K, suggested a judicial collegiate, a precursor to the Collegium system and the present day Judicial Appointments Commission of UK and recommended, "It would be possible, for instance, to make appointments ….with the consent of the standing committee of the judges, which would represent all sides of their work. They, after all, know the bar as few others can know it. They are not likely to be moved by political prestige. They are in the best possible position to assess the probable fitness of the men likely to prove successful on the bench. They would represent the best guarantee we could have that appointments were made only with the needs of the office in view".

It took almost four decades after the publication of 'Grammar' to eliminate the political component from the appointments process in the UK. The Constitutional Amendment Act, 2005 ushered in the formation of the Judicial Appointments Commission (JAC) in the UK, which comprised of inter alia 5 judicial members and a lay person as its Chairperson. Interestingly, the Lord Chancellor and no member of the executive or the legislature is a part of the JAC. This obviously, was vastly different from the overloaded political component, (of 3 political appointees and 3 judges) conceived of in our National Judicial Appointments Commission Act in 2013, subsequently declared unconstitutional.

The working of the Collegium system in these last 3 decades has posed a new set of problems. The narrow pool of talent from which the selections are made and the poor representation of many segments including women are a few of the problems that require redress. However, one cannot ignore that the Collegium system had distinguished itself for its innovative independence which even made the Nobel Laureate Amartya Sen take notice:-

"The independence of the judiciary has also allowed the courts, particularly the Supreme Court of India, to take independent and powerful positions on many of the central issues of equity and justice in their judgment,"

Of late, the primal fear is, what is perceived as the impact of an overweening executive and the consequent loss of Independence of the judiciary. A cursory reading of the extensive literature, journalistic pieces and human rights research papers of the recent years clearly shows a serious erosion of human rights in India. The concern is that this situation has developed, not because of the collegium, but despite it. The virtual constitutional comatose of the courts (undergoing a drastic change of late) when it comes to human liberties has been alarming. When students, academics, journalists, intellectuals opposition political figures are languishing in the prisons without any semblance of relief, it is an aberration the world's largest democracy can ill afford.

Coming to specifics, the non-elevation of Justice Akhil Kureshi is a historic blot. It is now well known that the former Supreme Court Judge, Justice Rohinton Nariman, who was part of the collegium had insisted that Justice Kureshi's name be included for elevation before any other name was recommended. The government had not expressed any objection to his candidature. Yet, it created a two year impasse. This non-elevation was not because the collegium overlooked merit and integrity, but because the executive could scuttle it by filibuster.

I agree with you that the government is a participant in the process of selection and not a mute spectator. However you are aware that the remit of the government is narrow. There is a distinctive feature which distinguishes how the collegium chooses or ought to choose unlike similar decision making by the government. For the judiciary, loyalty to the constitution and the independence to defend it is paramount. This, as Dr. Ambedkar emphasized was not negotiable, "There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself".

We now come to the question which begs an answer, what is the justification for the recent sending back of the 19 names for the High Courts? For instance, it is difficult to cull out a single tangible reason for the rejection of Saurabh Kirpal. It goes without saying that this may be the case for the other 18 candidates as well. There are rumblings in the bar that candidates who are strong and independent are the ones who the government has a problem with.

The other disturbing aspect is the spate and sequence of the transfer of judges of the High Courts. The transfer of Justice Akhil Kureshi to the 3 Judge Tripura High Court, the Madras High Court Chief Justice Sanjib Banerjee's transfer from a 75-Judge Madras High Court to the 3-Judge Meghalaya High Court and Justice Nikhil S. Kariel's transfer from the Gujarat High Court to the Patna High Court, (recently reversed by the collegium) sparked off agitations amongst the legal fraternity who practice in their courts. The legal fraternity, let me clarify, is asserting for the independence of the judiciary and is not calling for shackling of the collegium.

It is worthwhile to note that in matters of appointments and transfers, it is necessary to hear the independent and hitherto unrepresented voice of the Bar. After all, lest we forget, the Constitution of this great country was fundamentally, of the labour and the meticulous design of 250 lawyers out of the 350 member Constituent Assembly.

It goes without saying that the fiercely independent legal fraternity of India is not oblivious to the urgency of reform within the collegium. However, there is little doubt that they are not willing, in the bargain, to sacrifice the independence of the judiciary. They are in effect echoing what Dr. Ambedkar emphasized was not negotiable, "There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself". 

Our neighbour Pakistan is always a marker how right we always were in installing, preserving and protecting our institutions. Fatima Bhutto, in her book Songs of Love and Sword; A Daughter's Memoir, 2010 laments: "There is a similar danger, a feeling that we are not safe…. We don't live in a country with a Free press, we don't live in a country with an independent judiciary - or any judiciary for that matter. We have no safeguards against a violent and vindictive government."

So whenever a road is sought to be taken, it is important to understand the foundations on which the edifice of this judiciary was built. Pandit Jawaharlal Nehru's exhortation to the Constituent Assembly on 24th May, 1949 is a valuable reminder:

" It is important that these judges should be not only first-rate, but should be acknowledged to be first rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way."

The sine qua non which distinguishes our judiciary as conceived under our constitution, from other adjuncts of government is its independence and its political neutrality. And these characteristics alone can give both credibility and prestige to India's democracy. In this journey, it requires the government and collegium to act in tandem within the spheres of their remit.