Why an Independent Judicial Appointments System ?

The Original sin of the Supreme Court of Pakistan

In 1958, Ayub Khan of Pakistan, a Sandhurst trained General, staged a coup, deposed a duly elected Government, abrogated the two year old Constitution and imposed martial law. In a radio broadcast, he informed the bewildered nation, ‘we must understand that democracy cannot work in a hot climate. To have democracy we must have a cold climate like Britain.’ A young and ambitious politician, educated in England and a barrister at law went about persuading a section of the Pakistan’s Supreme Court judges to accept and to legitimize the Martial Law Administration. Pakistan Supreme Court delivered its judgment in State v. Dosso. The court invoked Kelsen who propounded the theory of Grundnorm by virtue of which a coup d’ etat or a revolution creates a new legal order. It undermined the Constitution and the independence of the judiciary. It gave legitimacy to a martial law administration which was a usurper of power in violation of the Constitution of Pakistan. This decision is called ‘the original sin’ of the Pakistan Supreme Court. This was the first compromise that the judiciary in Pakistan made in the year 1959. This judgment was cited with great vigor by despots across the globe, who seized power from constitutional and democratically elected governments. It is ironic that this famous politician became the most celebrated victim of a judiciary whose independence was compromised. The name of this politician was Zulfikar Ali Bhutto.

Mr. Fali Nariman has already spoken in great detail how Bhutto had contempt for democracy and all its institutions. In his lust for power and subservience he elevated a petty general and a zealot called Zia-ul Haq as the Chief of Army Staff. In 1977, Bhutto was ousted by General Zia who like the many generals before promised elections and continued a brutal rule. General Zia knew he needed a servile judiciary to take on his opponents.He appointed a new Chief Justice of Karachi. Bhuttto was made to stand trial for conspiracy to murder before the High Court of Karachi. The General had also appointed a new Chief Justice of Pakistan, Sheik Anwar-ul-Haq, who happened to be his personal friend. The Chief Justice heard the appeal along with 8 other members and upheld Bhutto’s conviction and death sentence. This book is dedicated to the three judges dissented in the teeth of military rule.

The reason I am citing this sordid saga of Pakistan’s judicial history is because for a particular reason. During the course of the arguments before the Constitution bench hearing, challenging the NJAC, arguments in earnest were advanced to suggest that the court should allow this constitutional experiment to carry on and thereafter to review the situation after 10 or 15 years. The judiciary in Pakistan compromised on its independence and its adherence to the Constitution in Dosso (1959). That decision damaged the country for all times to come. There are no reviews and there are no comebacks in constitutional adventurism. It took the Pakistan Supreme Court 15 years to reverse Dosso, which was entombed in Asma Jilani v. Government of Punjab. The overruling of Dosso did not really matter, because, the Army got used to discarding elected governments as and when they pleased. They continue to do so even today.

Richard Nixon and the impeachment of Justice Douglas

Some of you may think that this is something which happens in the third world, in failed states or in fragile postcolonial democracies. It happens everywhere. It happens all the time. The executive does not like an independent judiciary. The call for an independent judiciary is invariably from the opposition which has lost political power.

Let me take you across the globe to the United States of America, a 200-year-old democracy. William O’ Douglas was the longest serving judge of the US Supreme Court. He spent 36 years in the court, authored a remarkable number of opinions. He set the liberal agenda for the court and uncompromisingly stood by for the constitutional freedoms. Time magazine called him, “the most doctrinaire and committed civil libertarian ever to sit on the court”. His views were in conflict with the conservative political establishment and two attempts were already made to impeach him. Douglas J. in his long and eventful career as a judge who took on a big business, environmental polluters, censors and other vested interests had come to accept the threat of impeachment as a fallout of his political and judicial philosophy. In 1953 he survived an impeachment trial which was launched after he voted to stay the executions of Ether and Julius Rosenberg.

In the year 1968 Richard Nixon was elected. The President’s policies were not only diametrically opposed to that of the judge, he wanted a majority on the bench. With the liberal judge Abe Fortas is having resigned, they gunned for Douglas. A vilification campaign was commenced in the Senate by the then Senator Gerald Ford who subsequently became the President of the United States. What followed was Douglas’ personal life, his financial dealings, and whatever he wrote or spoke was thrown open and an impeachment proceeding commenced. One of the most celebrated and distinguished judges of the US Supreme Court were now facing politically motivated impeachment proceedings. In his autobiography there is a very poignant note on his condition:

"As a result of Nixon's instructions to the FBI and the CIA, hundreds of documents concerning me were turned over to the house. The tempo quickened in the executive branch, so that some 40 federal agents spent an amount of time investigating me in equivalent to one-man working 15 years for eight hours a day"

it is easy to make a charge against a public official and put him to the test of defending himself. But when the accuser is the federal government itself with all its resources behind it, the person attacked is at a tremendous disadvantage. It costs money, and a lot of it, to transport eight lawyers across the country, put them up at hotels, pay telephone calls and all incidentals necessary to do the work. Over and above all that, there is the question of compensating the lawyers..... That raised a staggering problem as to how a salaried person can afford the luxury of these long-range investigations." 

Time and time again we are made to believe that independence of the judiciary is permanent, simply because it is written in the constitution. We are goaded into believing in the need for consultation with the political executive. The moot question is, are we ready to sacrifice in this experiment, the independence of the judiciary and consequently on our constitutional freedoms?

There are several myths which surround the debate on judicial appointments. One of the first self-serving myths is that by virtue of the NJAC verdict the political executive has no role to play in the appointments of judges. Justice Madan Lokur’s opinion traced the history of the process where the say of the Chief Justice was decisive and final. The opinion has immense value to this debate, because, he very clearly and categorically pointed out that the political executive had a role to play and ‘the misunderstanding is, therefore of the political executive and no one else’. 

Harold Laski and the collegium system

The persisting myth which surrounds this debate on judicial appointments is that appointments made by a collegium of judges are an alien concept. Judges have created a system of appointments which cannot find its source in any jurisdiction of the world. The Collegium system of appointments came from the most unlikely of all sources. It came from the high priest of socialism Harold Laski. He penned it in his most celebrated, and the least read of his books the ‘Grammar of Politics’. He was bitterly critical of executive driven appointments which he asserted was a ‘place on the bench is a fair reward for party service’. Laski very clearly spelt out the precursor of the collegium system of appointments in order to generate an independent and a competent judiciary in the year 1967:

“It would be possible, for instance, to make appointments on the recommendation of the Minister of Justice, 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 probably fitness of the men likely to prove successful on the bench. They would represent the best guarantee we could have appointments were made only with the needs of the office in view.”

He was not charitable when he wrote ‘the average member of a legislature has no special qualifications for judging, and he is therefore likely to be swayed by political considerations irrelevant to the problem’. To a significant extent the Judicial Appointments Commission (JAC) in the United Kingdom has substantially adopted what Laski suggested over four decades ago. The political executive in the U.K. is completely out of the appointment systems of judges. So also the most powerful player, the Lord Chancellor, does not form part of the JAC since 2005.

The Myth of the Surprised President

We are forever suggested that the American system of appointments as a option. The President of America nominates a judge, and the Senate if hostile to the President, excoriates the judge in a public spectacle. The judicial history of the United States Supreme Court clearly shows a politically polarised judiciary. We have the exception of Earl Warren who was appointed by a Republican President and thereafter changed the contours of the Constitution towards a liberal democracy. Justice Antony Kennedy is another exception to the rule. But by and large the opinions follow the political lineage of the judge and the President who appointed him. Laurence Tribe has extensively dealt with this myth which he calls the ‘myth of the surprised President’. No President has been surprised by any of his appointments, but for the exception of Justice Earl Warren and now Justice Kennedy. His nominees have been loyal to the political philosophy to which he belonged. The voting patterns on controversial constitutional issues having political overtones make this position amply clear. The moot question here is, are we ready for a politically polarized judiciary. 

The fallacy of Justice Rehnquist defending the power of the President:

Justice William Rehnquist spent 33 years as a judge of the US Supreme Court and for a considerable period of time was its Chief Justice. In his book the US Supreme Court he expounds the philosophy justifying the power vested in the President to make appointments to the judiciary.

“Thus a President who sets out to pack the court does nothing more than seek to appoint people to the court who are sympathetic to his political or philosophical principles… yet the institution has been constructed in such a way that, because of the mortality tables, if nothing else, the public will, in the person of the President of the United States – the one official who is elected by the entire nation – have something to say about the membership of the court, and thereby indirectly about its decisions.

 Surely we would not want it any other way... when a vacancy occurs on the court, it is entirely appropriate that vacancy be filled by the President, responsible to a national constituency, as advised by the Senate, whose members are responsible to the regional constituencies. Thus, public opinion has some say in who shall become judges of the Supreme Court".

Justice Rehnquist finds nothing wrong with the system. He legitimately feels that the president has a right to appoint those judges who would carry out the policies of the President into the judicial arena. I pause for a minute because a spectacular fallacy is operating in this argument. Justice Rehnquist himself was appointed by Richard Nixon and thereafter made Chief Justice under the reign of Ronald Reagan. Under his tenure, he served two Democratic presidents who reigned for 12 years. Now if the logic of ‘public will’ as canvassed is to sustain, what happens to a judge who was appointed by Republican President, when the nation elects a Democratic President for the next term? Certainly, the ‘public will’ has turned its course in the opposite direction. Does the Supreme Court judge now have to, accommodate wishes of the new mandate, by adjusting his sails to induct the new winds blowing in a different direction? Does the judge have to change his philosophy to suit the views of the newly elected President? Rehnquist does not answer this critical question. In fact if we are to go by the record of Rehnquist, it was clear that his voting pattern on the bench was conservative even during the twelve year period in which he served under Democratic Presidents.

The political neutrality of the Judiciary

The one very remarkable aspect of the Indian judiciary is, it is perceived as politically neutral. If judges are perceived or seen as political, it will seriously jeopardize the acceptability of their verdicts in a nation as diverse as India. It is this political non alignment which makes judgments of the Supreme Court in large measure acceptable across India. Justice J.S.Khehar, rightly asserts that "our Constitution does not envisage the spoils system" which rewards those who worked towards a party's victory "as an incentive to keep the party in power”. It would certainly be not out of place to quote the former law minister. In an extraordinary bout of candour, H.R.Bharadwaj, on being questioned whether politicians were trying to control the judiciary, his answer was an affirmative yes. "Is there any doubt about it? They have always been making attempts. I can show you examples of chief ministers and ministers trying to influence appointment of judges because they land in trouble very frequently" and he added " They want to have a convenient judiciary. But is it in national interest if you appoint convenient judges?"

A note to ponder

The young audience in this room, I am sure will have a very strong opinion on the NJAC verdict. Many may, in fact, strongly disagree with it. Almost three decades back, when I read the judgement of Keshavananda Bharati, I strongly felt that the verdict was wrong, retrograde and status quoist. Today I am convinced that if at all we are continuing as a democracy, with our freedoms intact, it is because of Keshavanada Bharati. If you look around, we are the only postcolonial democratic experiment to have survived unscathed. This, in significant measure, is the outcome of Keshavnanda Bharati which has been able to prevent authoritarian impulses and keep our rights ‘beyond the reach of majorities’ and from ‘the vicissitudes of the political controversy’.

I am quite sure that when we judge the NJAC judgment in the years to come we will appreciate the decision taken in favour of an independent judiciary.

Santosh Paul is an Advocate of the Supreme Court of India.

This is the modified version of the speech delivered by Santosh Paul on the launch of the book “Appointing our Judges-Forging Independence and Accountability” on 11^th April, 2016.