The recovery of cash from Justice Yashwant Varma’s outhouse poses many questions. The visuals of the recovery were shocking. Some at the bar, however, doubt the genuineness of the allegations and claim it was a planned entrapment. Justice Varma has alleged conspiracy, which too has not been established. The in-house enquiry ordered by the chief justice of India (CJI) has not reached any conclusion yet; the process lacks certainty and transparency. Meanwhile, Justice Varma has been transferred to the Allahabad High Court; no judicial work has been assigned to him.
It is not prudent to discuss the merit of the issue based on speculation or hearsay. It is definitely not the intention of this article either. The incident has, however, exposed some systemic deficits in ensuring judicial accountability in India. No wonder that following the episode, there has been a call from some corners to reintroduce the National Judicial Appointments Commission (NJAC), which was struck down by the Supreme Court in 2015. The issue of accountability is connected to the process of selecting judges.
Judicial appointment in India has always been a controversial topic. The introduction of the collegium system happened with the judgement in the Second Judges’ case (1993). The idea was further elaborated in the Third Judges’ case (1998). Justice V R Krishna Iyer later criticised the new device: “There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.” The collegium holds many facets of power that are administrative rather than adjudicative.
Such a danger was foreseen by the makers of the Constitution. While discussing the Supreme Court’s financial autonomy in the Constituent Assembly on May 27, 1949, T T Krishnamachari apprehended the judiciary becoming imperium in imperio, a power within a power. The collegium, to an extent, becomes exactly that in certain matters.
Even B R Ambedkar opposed the suggestion to arm the CJI with the power to appoint judges. On May 24, 1949, he told the Constituent Assembly: “To allow the chief justice practically a veto upon the appointment of judges is really to transfer an authority to the chief justice that we are not prepared to vest in the president or the government of the day.”
Curiously, a significant aspect the Supreme Court may not have properly appreciated in its decisions on the subject is the text of Articles 124 and 217 of the Constitution, which say that the president will appoint judges of the higher judiciary. The Constitution does not indicate that the president or even the executive will select the judges.
Thus, there is a constitutional silence on the method of selection of judges, which is distinct from their appointment. The body to select judges, according to the Constitution, is neither the executive nor the judiciary. Yet, both branches have competed to grab the power. The executive succeeded in the First Judges’ case (1981) and the judiciary in the subsequent cases on the subject, the last being the one that struck down the NJAC (2015). In none of these cases, the top court tried to make a synthesis over the constitutional silence on judicial selection. Viewed so, these were adjudicative tragedies.
It is against this background that certain accusations against the judiciary are met with a plea for abolishing the collegium system. That the collegium ensures judicial independence is not proven. Even after decades of its installation, Indian judiciary is not totally free from executive leverage. This criticism, which prevailed during the Emergency of 1975-77, got revived with rigour post 2014. Though it was supposed to be independent from the political executive, the collegium system could not alleviate this huge credibility crisis.
At the same time, installation of a commission with executive predominance is not the solution. The NJAC, introduced by the 99th constitutional amendment, suffered from the vice of executive dominance. As per the amended Article 124A of the Constitution (which does not exist any longer), the selection committee would include the CJI, two other senior judges of the Supreme Court, the Union law minister and two “eminent persons”. A committee comprising the CJI, the prime minister and the leader of the opposition would select the two eminent persons. It was apprehended that the choice of these two eminent persons, where political persons would have a predominant role, might damage judicial independence.
The NJAC amendment also did not provide for openness in the selection process. Thus, it contained the basic vices and deficits of the collegium. The NJAC did not guarantee opportunity to all eligible hands to apply for selection. It did not provide for a fair and transparent process for assessing the candidates’ merit. It did not try to extend the concept of a national judicial service stipulated in Articles 236 and 312 of the Constitution, which even now remains on paper, to the higher judiciary.
Thus the NJAC, too, did not guarantee real democratisation in the process of judicial selection to the high benches. On the other hand, it sought to annihilate even the limited role of states, including the state judiciary, in the process of selection. The opinion of the governor, senior-most judges of the high court or the high court bar was not to be binding on the NJAC.
The point, therefore, is to evolve new methods to ensure democratisation of the selection process. The zone of consideration should be expanded beyond advocates and judges. Article 124(3)(c), which seeks appointment of distinguished jurists as judges of the higher judiciary, is yet to be tested in India. Sufficient representation for women and marginalised communities should be ensured. Notifications calling for application for posting in the higher judiciary can fundamentally alter the character of judicial selection.
Canada and Australia provide examples of this idea’s effectiveness. Open interviews, as they occur in South Africa and Kenya, are regarded best practices in judicial selection, provided there are other means for assessment of merit as well.
A more independent commission, with better representative and participative character, is an idea worth striving for. The notion of a people’s judiciary demands pristine imagination.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)