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'I Don't Think Process Can Be More Democratic Than This' : CJI Ramana On Collegium System
Mehal Jain
12 April 2022 9:06 AM IST
Chief Justice of India NV Ramana on Monday said that the collegium process for judges appointment is democratic as all stakeholders are consulted through a lengthy consultative process."There is an impression in India that judges appoint judges. It is a wrong impression and I want to correct it. The appointment is done through a lengthy consultative process, many stakeholders are consulted....
Chief Justice of India NV Ramana on Monday said that the collegium process for judges appointment is democratic as all stakeholders are consulted through a lengthy consultative process.
"There is an impression in India that judges appoint judges. It is a wrong impression and I want to correct it. The appointment is done through a lengthy consultative process, many stakeholders are consulted. I don't think that this process can be more democratic than this," Chief Justice N. V. Ramana said.
The CJI was speaking at the 2nd Comparative Constitutional Law Conversation Series webinar on the topic 'Comparative Approaches of Supreme Courts of World's Largest Democracies', organised by the Society for Democratic Rights, New Delhi and the Georgetown University Law Centre, Washington D.C. The Guests were CJI Ramana and Justice Stephen Breyer of the United States Supreme Court. The discussion was moderated by Mr. William M. Treanor, Dean & Executive Vice President, Georgetown University Law Center.
Here is an account of the conversation :
Dean Treanor to the CJI: "You advocated for affirmative action in the appointment of judges. Could you speak to the concept of merit in the appointment of judges?"
CJI: "The Constitution of India mandates separation of powers between the three organs. Judiciary is mainly mandated to review the executive and legislative actions. That is why Indian independent judiciary is non-negotiable. It is the courts which uphold the fundamental rights and the rule of law. People will trust the judiciary only if it acts independently. The decisions of the Supreme Court on judicial appointment are aimed at sustaining people's trust and faith. Interpretation of the constitutional provisions regarding the appointment of judges had to be undertaken by the Supreme Court only when it felt that there was executive overreach. In doing so, the Supreme Court followed the basic structure doctrine"
CJI: "Apart from that, there is an impression in India that judges appoint judges. It is a wrong impression and I want to correct it. The appointment is done through a lengthy consultative process, many stakeholders are consulted, the executive is one of the key stakeholders. For example, let us look at the process of appointment of a High Court Judge which is also a constitutional court- once the proposal is made by the court, it is sent to the concerned chief minister of the state and then to the governor. They are entitled to examine the proposals sent by the court and thereafter they forward the recommendation with their views, whether they are objecting to it or supporting it, to the government of India in the law ministry. And then the law ministry, after obtaining necessary inputs, taking into consideration the antecedents, reported judgments etc, will forward the views to the Supreme Court collegium. The Chief Justice and two senior most judges of the Supreme Court, after obtaining the consulting judges' opinion- the judges who worked in that particular state or are familiar with that state, their views also have to be taken. After all those views, we place the matter before the Chief Justice and the two senior most judges. They then recommend the names to the Prime Minister. There is another step of scrutiny by the Government of India. Then it is ultimately sent to the President of India. It is a long drawn process. And we consult at every stage, at every stage consultation takes place. I don't think that this process can be more democratic than this. The fact that the Government which finally appoints the judges in the name of the President of India, who is the head of our State- I said earlier that sustaining people's faith in the judiciary is the guiding principle. It is true that sometimes the Government can raise objections about a particular appointment. If they send back the proposal to the Supreme Court collegium, we will look into the material placed before us- whether the reasons are valid or there is substantial material of rejection of a particular candidate or not. And if we are satisfied with the inputs, then we will reconsider, or else we will reiterate. Once we reiterate the second time, the government has no option but to appoint. This is the sum and substance of the present system that we are following"
Justice Breyer: "At least I can believe now that it has been in the political interest of those involved, to appoint a person who is a qualified person on the merits, on the law, one who knows how to be a judge. You can look at instances where it has not occurred and they have paid a price, politically, for that. Merit always, until now, plays a role- sometimes more, sometimes less, often a critical role because when the people's criterion is not fulfilled, it gets the appointing authority into trouble. But will it continue? That is what I say to the students- I say that question is like so many other questions, the questions about cooperation and ending division in this country. I say it depends on you, that I am very sorry but this Constitution will work, in my opinion, in the founders' opinion, only if you and your friends over the next umpteen years decide to participate in public life, decide to listen to the people who have different points of view, decide to discuss these matters with other people in ways that are calm and listening and not overly excited, and they might try to convince you and you might convince them and you might find your areas of agreement. If you go out and do that, I am not worried about merit appointments. That is what I say"
[On the process of naming judges and if the political nature of US Supreme Court nominations undermines the court's authority]
Justice Breyer: "I don't think much. It was part of it, it was meant to be- nomination process is a political process. What I think is happening, and it is a problem for us already, is that take the political party- different groups are politically organised people and have different political views, and they will try to get judge X or judge Y nominated to the Supreme Court. But they will think that judge X or judge Y will have views about the law that will lead to decisions that favour that particular political view. So when judge X or judge Y reaches a decision, it is one that he takes in his own mind according to the law. Law is not something like physics, it is complex and it has to deal with people in living societies. People see underlying jurisprudential views in different ways. I think it is important for people to understand that once you are put on that road and you become a judge, you might have different views about the law. You are not thinking about politics. You might have different political views because you are raised, say, on a farm, or like me in San Francisco where you went to a state high school. I had the life I had, you had the life you had. And after a certain number of years, you have views about what is that word 'liberty', what is this country like etc. Those are jurisprudential views. If you are a judge, they could affect your decision. The more people understand that, the more they will be willing to understand that we have a system where people have a voice in selecting a judge through a presidential appointment and confirmation process, and that is going to be political, but the job of judging is not political. I cannot say 'not' 100%, you cannot say hundred percent about anything. But that is very much a non-political action.
'Once we have taken oath on the Constitution and we start working as a judge, politics is no longer relevant'- CJI
CJI: "The job of the judge is not political. It is a wonderful statement, I am very happy to hear from Mr Breyer about that statement. Once we have taken oath on the Constitution and we start working as a judge, I think politics is no longer relevant. It is the Constitution which guides us. It is the principle anywhere"
[On inclusivity in the judiciary, with specific reference to India getting its first woman CJI and the recommendation to the bench of an "openly gay" candidate, both during CJI Ramana's tenure] 'In the recent appointments, we selected judges from nine different states, out of which three are women'- CJI
CJI: "The Supreme Court was established in 1950. It is 72 years old. It is relatively young. India is known as the world's largest democracy, we have one of the largest judicial networks in the world. The first woman judge was appointed in the Supreme Court after nearly 40 years and now we have four women judges, which is the highest number so far. I know it is not enough, I expect more. I am happy that the recent appointments and recommendations have generated a lot of discussion about the inclusivity. In fact, I borrowed from Karl Marx in one of the meetings organised by women lawyers in Delhi to say that 'Women of the world, unite. You have nothing to lose but your chains'. This resonated well with the people, they welcome the diversity. For me, inclusivity does not stop with having more women judges. Our population is nearly 140 crores, India is home to around 120 languages and dialects, more than 4000 communities and more than 700 tribes, it has 28 states and 8 union territories each having many regions with distinct characteristics. These social and geographical diversities must find reflection at all levels of judiciary. With widest possible representation, people get to feel that it is their own judiciary. Diversity in the bench promotes diversity of opinion. Diversity enhances efficiency. People from different backgrounds enrich the bench with the diverse experiences. A judge from rural background understands the issues of rural India better. A judge from a particular region understands the issues of that region better. A judge from marginalised section understands the issues of marginalised better. I am very happy that the outlook of my collegium members is very progressive. In the recent appointments, we selected judges from nine different states and out of which three are women. I know we have many miles to go but a beginning has been made
Justice Breyer: "Women judges in the US Supreme Court, when Judge Ketanji Brown Jackson is here, will be four out of nine. That does not mean the problem is over...Also, it is not just with women but with minorities and all kinds of people. Justice Marshall was the first black person to be appointed to this court. He was helpful on this court to tell people about a few things that the rest of them may not have experienced. So diversity of background and experience is a good idea. Though it is not the only idea- You are judges and you must be a judge. But it is an important part of it. So we are moving in that direction and I am glad that we are..."
[On Retirement and age limits] Dean Treanor to the CJI: "You turn 65 in August. For a judge, is it a young age to retire? What are your future plans?"
CJI: "65 years is too early for someone to retire. I worked for almost 22 years as a High Court judge, High Court chief Justice, Supreme Court judge and now CJI. In Indian judiciary, at the time of joining, we know our date of retirement. There are no exceptions. As for me, I am still left with a decent amount of energy, I am the son of an agriculturist, I am still left with some land to cultivate. I am basically a man of the people. I love to be among the people. It has been my nature since my student days. I hope I will find the right avenue to invest my energy for the sake of people. One thing I can say for certain is that retirement from the judiciary does not mean that I will retire from public life. So I can say that I am too busy to comment about my future retirement plans"
Justice Breyer: "I have heard certain number of complaints in India that the term is too short. We don't have any term, we can have a long term of 18 years or 20 years...You want it long because you don't want somebody thinking what is his next job. I will be 84 years old this summer. I am not so much thinking about my next job...Also, it takes time to adjust to the institution, and I suspect the Indian Supreme Court is similar. It is an unusual institution. The first few years you wonder 'can I do this job?'. You might not say it but you are thinking it. And then you say 'I can do my best and that is about it'. You get used to it, but there are all kinds of approaches, rules and how the Court works- it is an institution of government as well as a court of law, and how do those things combine? It takes time to develop all your approaches, understanding...Would it matter to have a very long retirement period? I say 'no'. Would it be better to have no period than a short period. I can't really answer that because we don't have any period..."
Dean Treanor: "Considering the US Constitution is shorter and that of India is so much longer, more detailed,how does it impact the constitutional interpretation of these two courts?'
CJI: "Whether Indian or American Constitution, the spirit is the same. The object of 'We, the people of the country' must abide by the rule of law and ultimately, the public, people's view is sovereign. Now we have to respect the people's view and ultimately we have to take the actions of the executive and the legislature in the judicial review process and ultimately we will uphold the constitutional values. You are aware of the major judgment in Indian constitutional law of Kesavananda Bharati, which prescribes the limit of the legislature as well as the executive in relation to the judiciary. The theory of basic structure was introduced and thereafter we are following the logic and reasoning of the judgment over a period of years. This is how we interpret the laws and the actions of the executive. There is a clear-cut separation of powers- three organs of the Constitution, we have marked clearly the roles of the institutions- the legislature, the executive and the judiciary. So I think there is no problem of interpreting any of the issues"
CJI: "Whether Indian or American Constitution, the spirit is the same. The object of 'We, the people of the country' must abide by the rule of law and ultimately, the public, people's view is sovereign. Now we have to respect the people's view and ultimately we have to take the actions of the executive and the legislature in the judicial review process and ultimately we will uphold the constitutional values. You are aware of the major judgment in Indian constitutional law of Kesavananda Bharati, which prescribes the limit of the legislature as well as the executive in relation to the judiciary. The theory of basic structure was introduced and thereafter we are following the logic and reasoning of the judgment over a period of years. This is how we interpret the laws and the actions of the executive. There is a clear-cut separation of powers- three organs of the Constitution, we have marked clearly the roles of the institutions- the legislature, the executive and the judiciary. So I think there is no problem of interpreting any of the issues"
Justice Breyer: "The basic values, whether the constitution is long or short, those values are there. You see in both the Constitutions that they include the values of equality, basic human rights such as free speech and free press, rule of law. And we both have the same problem that we are not elected people, that we live in a Constitution and under a system where what prevails is democracy. So how do we protect the basic values where a majority of the people want to hurt them? Where is our job and where is the job of the Congress? We have a short constitution and the answer I suspect is no easier when you have a long constitution. Justice Black used to say, 'Just read the words. It says congress shall make no law abridging the freedom of speech. It is no law- that is easy- it means no law'. The response was that it is not the words 'no law' which cause the problem, the question is what is the proper interpretation of the freedom of speech. It doesn't mean I can go out and say 'let us all rob a bank'. On the other hand, there is political speech. How do we draw the line and where do we do it? That is why it is important to pay attention to what these other courts, with the same kinds of problems, do for protecting those values. We don't have to follow it but we can learn from it"
Justice Breyer: "You don't know in advance what you are going to learn when you start talking to judges of other countries. In 2001, we went to Gujarat- Ahmedabad. One of the judges in Ahmedabad showed me a building, with a big wooden porch and a line of women, a queue which went on endlessly into the streets. I asked 'what is that'. The judge said we have set up a system here for women in this area, when they have something to complain about, maybe their husbands are hitting them or maybe their in-laws kept some of the money belonging to them- there were all kinds of problems that were happening. Inside the room, there is a psychologist, there is a lawyer, there is a social worker and they would explain their problem and figure out how to help them- it might be going to the police, it might be pursuing a law case, but it focuses on those individual problems of those women. And they like it- that is why there was a big queue. I had a picture of that in my office for five years. People would ask me what that is and I would explain it. I ended by saying 'we have a system like that here, don't we?' I thought by saying that and by explaining that, they would learn something which would be helpful"
Dean Treanor: "Higher judiciary in India has innovated quite a few interpretative tools in the spirit of a welfare Constitution. One noteworthy tool is the development of public interest litigation jurisdiction. As I understand, it allows public spirited people to advocate for redress- whether of violation of fundamental rights, deficiencies in education and healthcare or other serious problems- and they can do so in order to advance the larger public interest without strict compliance of locus requirements. In contemporary Indian democracy, how relevant is such jurisdiction?"
CJI: "The public interest litigation jurisdiction was an innovation of the Indian judiciary, particularly the Supreme Court. It is plainly meant for the marginalised people who cannot approach the courts, to engage advocates to espouse their cause. The idea is to promote access to justice. You know that initially, it started with that a postcard or a letter is enough to raise a cause in public interest. Necessarily, the court looked beyond the locus standi to uphold the public interest, to relax that locus standi business. Due to the proactive approach of the Supreme Court, the PIL became a tool of empowerment. It generated awareness about the rights of the people. Apart from that, the Supreme Court is closely monitoring various issues through PILs- For example, the environmental issue, long pending criminal cases against elected public representatives, protection of human rights. A continuous mandamus, we are issuing. The PIL has prevented Cross abuse of the executive power and check the corruption at some levels and also sought accountability. Of course, I agree that it has some limitations. The Supreme Court and High Courts also impose certain restrictions on the misuse of this public interest litigation. But overall, if you look at the whole scenario, it is more encouraging and positive. PIL is basically a tool and it is an instrument to uphold the civil rights and to take care of the needs of the people who belong to the oppressed classes. It has, to some extent, successfully achieved its object and now it is an integral part of the system. Public interest litigation issues are also there to some extent, but there are a number of judgments where we have regulated the frivolous filing of this public interest litigation and we are harsh towards those people who want to settle scores or misuse the PIL jurisdiction"
Dean Treanor to the CJI: "You have been advocating for the creation of a statutory body for infrastructure for the judiciary at all levels and for filling of vacancies on an urgent basis. Would you please elaborate on how this measure will substantially improve the delivery of justice in India?"
CJI: "From the position of an advocate, I have been noticing the very poor condition of the courts in particularly rural areas, because I practised from magistrate court to the Supreme Court at all levels. And judicial infrastructure in India remains one of the most neglected areas. After the British left the country- for the courts constructed by the British- subsequently, for one reason or the other, we have not modernised the courts. This is the subject which is on my priority list. After assuming the Chief Justice office, I requested my Registry to conduct a study to know the condition of the courts. In the interest of increasing access to justice, I had to urgently take up this issue. I sent a report to the government of India to create an infrastructure corporation at national level as well as state level, because the pandemic has shown that modern technology has to be a technical part of the infrastructure. Now we need good technology and infrastructure and to carry out the dignity and respect of the court also. My proposed independent statutory authority at two levels takes care of the problem of infrastructure. Because such authority must have functional and financial autonomy. It would ensure timely implementation of the modernisation of the project. By the end of this month April, we are holding a conference at Delhi with all the chief justices of the states as well as the chief ministers of the states and the hon'ble Prime Minister and law minister is also participating in that conference. I hope it will take a shape. The reason is that the client, the litigant public, the lawyers, the judicial officers should work in a good environment. So the judges will be good. That is the reason why I have taken up this project as a priority project"
Dean Treanor to the CJI: "An aspect of the Indian judicial system is the legal aid system. India has the largest legal aid service under your patronage. Is there a statutory basis of this or is it totally voluntary? What is your advice to the rest of the world in this regard?"
Dean Treanor to the CJI: "An aspect of the Indian judicial system is the legal aid system. India has the largest legal aid service under your patronage. Is there a statutory basis of this or is it totally voluntary? What is your advice to the rest of the world in this regard?"
CJI: "Our Constitution guarantees equal access to justice. We have the legal services authorities act. Now we have a statutory legal services authority both at the central level as well as the state level. The legal services authorities provide their wide range of services, they conduct legal awareness camps, provide ADR facilities, other facilities of counsel in both civil and criminal matters. Through these authorities, the legal aid is now available for more than 80% of the Indian population. We have around 45,000 paralegal volunteers, nearly 5000 legal service clinics all over the country. Our experience is that this area is very encouraging. The pre-litigation settlement and mediation resulted in the reduction of number of cases coming to the court. Providing legal aid to the undertrials is another significant contribution of these authorities. We have legal service clinics in jails as well as those which provide assistance to the undertrials and convicts. The Indian legal service model can be replicated anywhere, particularly in the developing countries. This is a very successful enactment and movement. Legal aid movement is very popular in this country- because of poverty and other reasons, the people who are unable to approach the courts, engage lawyers or spend money, that has been taken care of by the government. It is a great success. It is headed by our patron in chief and the second judge of the Supreme Court is the chairman of the central committee. At the state level, the chief Justice and his next judge are incharges of these committees. There are committees up to the village level committees to provide legal help"
Dean Treanor: "What are your views on educating international LLM students in the US? How should we be educating our international students? How can our students return home and initiate the bottom up grassroot changes in the society that currently do not observe democratic values such as freedom of speech, separation of powers, checks and balances etc?"
Justice Breyer: "I cannot write a curriculum for you, but it is important but. A model for me is the ERASMUS programme in Europe- where students might spend a year or so in different countries. It is not going to be all spending it in the US or, for that matter, in India. Go a different country, see how the people live, see what the legal system is like. You don't know in advance how you can help. Life has a way of coming and offering opportunities of helping people achieve better life and if you get such an opportunity, good, take it. But your job is primarily to teach them the law, the respect for law, what is the rule of law and what it isn't in that country that you happen to be teaching"
CJI: "I welcome this learning in a different land, different country, exposing yourself to different culture, different system of teaching is a good experience for an upcoming lawyer particularly. This exposure in education will help a lot. It is to a benefit. Every country should encourage and sponsor this education. It is holistic learning. Learning is never confined to classroom. So if you come to India or we come to America, a lot of exchange will take place, apart from that we will understand the systems, we can contribute a lot, if we learn something over there we can come and work here. Senior Advocate Vibha Datta Makhija, who is also a student of your university, is contributing a lot to Indian legal system. She insisted that we must have this conversation. Different cultural activities, values, teachings, it is a wonderful thing for us to learn. Our registrar is also from your university. These people are working wonderfully and helping me in administration"
Dean Treanor: "Why is abortion so politicised in the United States and not India?"
CJI: "Abortion is not a major issue in our country. The reason is that normally the Indian population, particularly our marriage system, is altogether different. People expect that after marriage, the consent of husband...or to lead the family life, if there is any difficulty in conceiving child or delivery of the child, these issues can be in consultation with the family. The issues of sex before marriage and other issues are not that serious in our country. These are all negligible instances where we can look into it. That is why the right of abortion is not that focussed an issue in India...But in India, there are regulations to stop acts of female foeticide and apart from that, there is a balancing act of right to life of a child versus the right of the mother. The autonomy of the body of the female is important"
Justice Breyer: "That is a question you should ask a political person. They would have a more sophisticated answer than me. The only thing I can contribute is- I did write an opinion- the question before us is not whether abortion is a good thing or a bad thing, there will be difference of opinions of people on that. But the question is what kind of law is there in a nation which has a large number of people feeling differently about a question like that. It is not about moral rights or moral wrong.
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