Higher Judiciary Appointments—A Civilian Perspective

A senior functionary of the ruling party is now a High Court Judge. Her ‘eligibility’ and ‘suitability’ was confirmed by a Supreme Court Bench even as she was being sworn in at the Madras High Court.

It was as if the whole Constitution and the judicial edifice would crumble if she was not sworn in at 10.35 AM on February 7, 2023 even as the challenge to her appointment was being argued in the Apex Court.

The challenge against Victoria Gowri’s appointment was premised on her being a former office-bearer in the ruling party (she was the general secretary of the Bharatiya Janata Party’s Mahila Morcha), and her recent statements.

Examples include “As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially Love Jihad.”

In the highly flawed process of ‘selecting’ High Court judge’s names are made public only after selection by the collegium. As noted by a Live Law columnist: “The selection process is entirely opaque and behind closed doors, where the parties involved are the collegium and the government (through the Intelligence Bureau).

“This not only has transparency costs, but also, the costs are asymmetrical: it is but obvious that where the government approves of a particular candidate, it can simply withhold relevant information from the collegium (indeed, this is the only possible implication in Victoria Gowri’s case).

“This, then, creates a situation like the present one: by the time that a candidate’s name is in the public domain–thereby allowing for relevant material is brought to the collegium’s notice by the public–the selection has already been made. Once again, the fall-out of this is asymmetric: given that the government retains the power of formal appointment, when it approves of a candidate, it can rush the process through (as happened in Victoria’s case).”

This situation has serious and severe ramifications for the constitutional scheme of separation of powers, independence of judiciary and delivery of justice to India’s parched millions. And as is the adage “without justice there can’t be peace”!

Be that as it may, selection and appointment of High Court judges has been a long festering issue between the Union Government and Supreme Court that is begging for a solution. The bone of contention is the Memorandum of Procedure (MoP) which will be the Rule governing appointment of judges.

Strange as it may seem, India's higher judiciary, which adjudicates every law and rule in the country, is itself functioning without any rule! In 2015 the Supreme Court struck down the government's proposal to set up a National Judicial Appointments Commission (NJAC) for appointment of high court and Supreme Court judges. Since then, the government and the Collegium have not been able to finalise the MoP.

This is because of sharp difference of opinion between the two on many counts:

1) Seniority and Merit: Government wants the criteria of seniority, merit and integrity while promoting a HC judge to the SC. Collegium says the criteria of seniority, subject to merit and integrity, would be followed.

2) Power to reject candidates: Government proposes to retain power for rejection of candidates recommended on grounds of national security/public interest. Collegium is opposed to this.

3) Writing down Reasons: Government wants that in case a senior Judge is being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing and the views of all five judges of the Collegium must be made known to the government. Collegium does not favour this.

4) Binding Recommendation: As per the existing system, Collegium’s recommendations can be sent back but if it reiterates the same, it is binding on the President. Government is asking for “participatory consultative process at the highest level”.

5) Consultative Mechanism: Government proposes to set up a committee to assist the Collegium in evaluation of candidates. Collegium feels this is not necessary.

6) Candidate’s Database: Government proposes a secretariat under the law ministry that maintains a database of judges, schedules Collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. Collegium wants this under the ambit of the Registrar of the supreme court.

Proponents of NJAC argue that selection to the higher judiciary must be made by a full-time (not ex-officio) body, which is independent of the government and the judiciary and which goes about the selection in a rational and transparent manner.

The business of selecting hundreds of judges in a year to the higher judiciary, if done properly, would require at least a thousand candidates to be considered and comparatively evaluated over multidimensional criteria in a fair and rational manner. This would require a full-time body, which could totally devote itself to this process, with professional support.

There has to be transparency in the selection to prevent arbitrariness or nepotism. It would require that the criteria for selection of judges and standard of evaluation of candidates be made known and names of shortlisted/selected candidates announced before appointment, so that those who have relevant information about the candidate can send it to the appointing authority.

Basic criteria to judge the competence of a candidate should include integrity, competence, judicial temperament, common sense and sensitivity towards the problems of the common man, among others. But in India’s deep-rooted culture of favouritism, cronyism and nepotism this is utopia.

Actually, the tussle is between an ex-officio group called Collegium and a full time Commission, both non-constitutional entities. Hence the crisis and the conundrum that has now assumed alarming proportions, all because of a historical blunder. At the time of Independence there were two All India Services (AIS)-Indian Civil Service (ICS) and Indian Police (IP). ICS was doubling as civil servants and judges. Since the Constitution of India brought in separation of powers between executive and judiciary this arrangement was no longer tenable.

Therefore, Article 312 of the Constitution mandated Parliament to create one or more AIS. Sardar Vallabhbhai Patel got two of them covenanted in the Constitution itself: “The services known at the commencement of this Constitution as the Indian Administrative Service (IAS) and the Indian Police Service (IPS) shall be deemed to be services created by Parliament under this article.”

But B.R. Ambedkar, the Law Minister, frittered away the opportunity and till date there is no All-India Judicial Service (A.I.J.S). In the event while the higher executive is manned by permanent civil servants, the higher judiciary is occupied by the products of the spoils system!

Nevertheless, the issue of creation of AIJS keeps cropping up off and on. In 2010, three eminent jurists–Justice MN Venkatachaliah, Justice JS Verma, Justice VR Krishna Iyer–examined the issue in some length and opined thus: “We agree with the urgent need to constitute the IJS as envisaged by Article 312 of the Constitution of India, at par with the other All India services like the IAS to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality.

“Moreover, the subordinate judiciary is important feeder-line for appointments to the High Court. The general reluctance of competent lawyers to join the Bench even at the higher levels adds an additional urgency to the problem. IJS will, in due course of time, also help to improve the quality of the High Courts.”

Various law commissions (1st, 8th, and 11th) had also suggested the creation of IJS. Even the Supreme Court, in two of its judgments in 1991 and 1993, had endorsed the setting up of IJS. Yet it is mysterious that this Service has not materialised. In November, 2012, a Committee of Secretaries chaired by the Cabinet Secretary had approved a "comprehensive proposal" for creation of the service.

Prime Minister Narendra Modi while addressing a function to celebrate completion of 50 years of Delhi High Court on October 31, 2016 sought a debate on creating A.I.J.S. which has been hanging fire right since independence.

The Union Law Ministry also floated the idea of the Chief Justice of India convening a meeting of the Chief Justices of the High Courts to arrive at a consensus on formation of A.I.J.S. So, the matter is live and a proper solution has to be found soon because higher judiciary cannot be a rule-less entity in perpetuity.

All things considered, the best long-term solution for this sensitive and vexatious issue is to abide by the constitutional scheme of things and establish the A.I.J.S. with the Supreme Court as the Cadre Controlling Authority instead of the Government. Any special expertise needed can be taken care of through lateral entry. Sooner this is done the better.

M.G.Devasahayam retired from the Indian Administrative Service. He was earlier with the Indian Army. Views expressed are his own.