As Government Seeks A Role In The Collegium’s Process Of Recommending Potential Judges, It May Dilute Judicial Primacy

The idea of a “search committee” or “evaluation committee” - comprising a representative of the Executive - to select potential recommendees by the Collegium is something which was not mentioned in the Supreme Court’s order on reforming the collegium, delivered after the striking down of the NJAC in 2015. It may be validly argued that such a committee may compromise the independence of the judiciary, as successive judgments of the Supreme Court have held that it is only the CJI, whose view as formed by the collegium, is final with regard to selection of appointees. If the Executive is ceded a definite space in the search and evaluation of the potential appointees - before the recommendation is made by the High Court or Supreme Court Collegium - then it may dilute the concept of judicial primacy, which the Court in the NJAC had held, it equivalent to judicial independence.

The Government may be correct in claiming that the MoP has not yet been finalised, as its discussions with the CJI have not yet been conclusive.

The Supreme Court, while hearing The Advocates Association Bengaluru vs Barun Mitra, may be equally correct in claiming that the Collegium’s draft MoP, submitted to the Executive in 2017, has achieved finality, as the Government has not yet responded to it, though the bench agreed that it could still be supplemented. One does not know whether the draft MoP, submitted by the collegium in 2017 to the Government, incorporates the suggestions and guidelines of the five-Judge Constitution Bench in 2015.

However, as the Advocates Association Bengaluru Bench has kept the window open for supplementing the 2017 draft, the disagreement over whether the MoP has been finalised or not should be considered as irrelevant. What is important to note is the validity of the new suggestion by the Government to include its representative in the evaluation committee, before the Collegium finalises its recommendations. Under the present MoP, the Government has a role to vet the recommendations from the perspective of integrity of the proposed appointees, and seek reconsideration of names, if there are serious complaints. The collegium, both at the High Court and the Supreme Court level, recommends candidates, based on its assessment of judicial acumen of the proposed appointees.

In the December 16, 2015 order, the Supreme Court’s five-Judge Constitution bench, after striking down the NJAC Act as unconstitutional, decided to consider the incorporation of additional appropriate measures for an improved working of the “collegium system”. The objective was clearly to introduce measures in the prevailing “collegium system” of appointment of judges to the higher judiciary, in order to improve its working.

The order makes it clear that the bench was initially inclined to sieve such of the suggestions which it received from the counsel and other stakeholders,as were likely to improve the “collegium system”. The bench, by shortlisting such suggestions, wished to sponsor their introduction into the MoP. As the bench was keen to go ahead to use such an opportunity, the then Attorney General, Mukul Rohatgi made an impassioned submission, “as a matter of faithful assistance”, that it should desist from pursuing the contemplated course of action.

Rohatgi had told the bench that the formulation of the MoP was an administrative responsibility which fell in the executive domain. He submitted that the Court neither had the expertise nor the wherewithal for proposing amendments in the existing MoP (drawn on June 30, 1999 by the GoI), for improving the collegium system. He drew attention to Paragraph 478 of the Court’s judgment in the Second Judges case in which it was held that the Union Government would issue the MoP, after consulting the CJI, and with the modifications, if any, suggested by the CJI. He told the bench that even the nine-judge bench had left the task of drawing up the MoP to the GoI.

In particular, the bench in the NJAC case noted the then AG’s submission that the GoI would introduce amendments and redraw the existing MoP with the object of considering the criteria/benchmark for the appointment of judges of the higher judiciary, including widening the zone of consideration; to introduce transparency in the matter of appointment of Judges to the higher judiciary, “as would be appropriate, keeping in mind the sensitivity of the issue”. The then AG had also promised the bench that the GoI would make the present procedure broad-based, by introducing supporting measures, whereby candidates can be screened and evaluated, and complaints against them are evaluated through a Secretariat constituted for the said purpose, under the control of the CJI, as supplemental (and not as a substitute) to the process contemplated through the Second Judges case and the Third Judges case as well as the five-Judge bench’s judgment on the merits in the NJAC case.

More important, the bench clearly said that it is in agreement with the changes referred to by the then AG , as they are “broadly in tune with the majority of the suggestions”. These suggestions were referred to the bench by the two-member committee, comprising the then Additional Solicitor General, Pinki Anand, and senior advocate, Arvind P.Datar, under the category of “transparency”, “secretariat”, “eligibility criteria” and “complaints”.

The AG informed the bench that the MoP and the amendments therein, had always been prepared by the GoI in consultation with the President of India and the CJI. This practice, he told the bench, had been consistently adopted, in consonance with the directions contained in paragraph 478 of the Second Judges case. The bench expressed its “complete agreement” with the then AG that the GoI would adopt the same procedure, if the task was entrusted to the executive.

In Paragraph 10 of its order, the bench held as follows: “In view of the above, the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the CJI. The CJI will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne Judges of the Supreme Court. The bench directed that while supplementing the existing MoP, the CJI and the Government shall take eligibility criteria, such as the minimum age, and transparency into consideration. In particular, the bench suggested that the MoP may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provisions for the confidentiality of the minutes consistent with the requirement of transparency.

The bench also suggested establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities, and provision in the MoP for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment of a Judge. It may be noted that the existing MoP neither has a provision for Secretariat, nor prescribes a mechanism to deal with complaints. The present MoP also lacks a proper procedure to record dissent among the collegium members.

Under the Miscellaneous category, the bench suggested that MoP might provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

More important, the bench made it clear in Paragraph 11 that the guidelines mentioned in the order are “only broad suggestions for consideration and supplementing the MoP for the faithful implementation of the principles laid down in the Second and Third Judges cases.

Therefore, for the Government to make a claim that its latest proposal to include a representative of the Executive in the proposed “evaluation committee” of the collegium, is born out of the Supreme Court’s 2015 order may be far-fetched, and a clever strategy to wrest the initiative from the Collegium in its ongoing battle for supremacy.