Constitutional guarantee of fundamental rights and the Rule of Law are meaningless unless they are enforced by judges of ability and integrity, and who can withstand pressures from any quarter. The genesis of the present collegium system under which appointments are made can be traced to the supersession of three able Supreme Court judges, R S Hegde, J M Shelat and A N Grover because their judgments in the Keshavanand Bharati case were unpalatable to the executive. The theory of a committed judiciary floated by Minister Kumaramangalam reinforced the thinking that ‘sarkari’ judges should not be appointed. Hence, the court by a novel interpretation of the Constitution construed the expression ‘consultation’ with the chief justice as ‘concurrence’. The consequence was that the collegium comprising exclusively of judges made the appointments. Experience revealed the unsatisfactory working of the collegium system, whose other infirmity was that the executive was totally excluded from the process of appointments. Hence the need was felt for a broad-based commission entrusted with the task of the appointment of able and independent judges in the high courts and apex court.
What is crucial is the composition of the Commission. In addition to Supreme Court judges, it could include the executive (law ministers), leader of the opposition or leader of the largest group in the Lok Sabha, an eminent retired chief justice or judge of the Supreme Court, and a distinguished academic jurist e.g. Prof. Madhava Menon. Whatever be the number of the members of the commission, the judicial members should be in a majority not because judges are divine but they are better able to assess the merits of the high court judge or a lawyer proposed to be elevated. If there is material against the proposed appointee which makes him unfit for appointment, the executive and other non-judicial members can point that out and the commission can reach its decision after considering the same. Reasons for selection or non-selection should be recorded by all members of the commission. It is problematic whether the reasons should be made public because of the embarrassment and public’s lack of confidence in the HC judge who is not selected. The commission should be a full-term body and have a well-staffed secretariat for collecting necessary data and material about the proposed appointees. Televising the commission’s proceedings is inadvisable because it will detract from the solemnity of its proceedings and moreover dissuade able and deserving lawyers and judges to accept judgeship.
The commission’s recommendations should be binding on the executive except in an extreme case where Parliament by a majority of total membership of each House and a majority of not less than two-thirds of the members of each House present and voting rejects the commission’s recommendation regarding a particular judge or a lawyer. It is suggested that no judge or a lawyer who has been involved in party politics should be elevated. This may be a general guideline but not an inflexible one. Otherwise our Supreme Court would have lost one of its most celebrated judges, Justice Krishna Iyer, who was a Cabinet member in the Marxist government in Kerala, which fact did not at all affect the discharge of his judicial function as a judge. In fact, he delivered landmark judgments advancing human rights and especially rights of prisoners and women.
Ultimately, the Appointment Commission will be as good as its members who will work it. It will be a welcome step in the right direction, however. Law Minister Ravi Shankar Prasad must be congratulated for initiating a wide-ranging process of consultation on this vital matter. Remember, that if an able deserving judge or lawyer is not appointed, it would be unfortunate. But if a rotten egg finds a place on the bench, it would be an unmitigated disaster. Let us wait and watch the performance of the commission.
Sorabjee is a former Attorney General of India