This judicial selection needs more than a tweak

The college system and the mysteries that underpin its decision-making dilute the importance of the high courts

The College of the Supreme Court of India has been busy for the past few weeks. On his advice, new judges were appointed to the Court and positions long overdue were filled. After a meeting on September 16, the committee has now submitted proposals to change the existing composition of various high courts. When these recommendations are announced, new chief justices will be appointed in up to eight different courts, five existing chief judges will swap positions with others, and a number of senior judges will be transferred to new courts.

Transparency required

These recommendations are viewed as a reflection of a new and proactive college. A determination to be quick is okay so far; Job adjustments are a minimal requirement for a functioning system. What should worry us, however, is that long-standing concerns about the functioning of the College remain unsaid: in particular, its opacity and the lack of independent scrutiny of its decisions. These concerns are usually seen in the context of a battle between the executive and judiciary. Less obvious is the impact that the failures have on the status of the high courts. Even without an express constitutional sanction, the college today actually exercises supervisory authority over each of the high courts.

For nearly two years, despite vacancies at the bank, the College made no recommendations for appointment to the Supreme Court. The press has suggested that this deadlock was due to the reluctance of some of its members to bring Judge Akil Kureshi to justice. In fact, it was only after its composition changed on August 17 that the panel recommended a list of names for the survey. That list did not include Judge Kureshi’s name.

Due to the volatility of the college’s resolutions, we are not aware of the reasons for its exclusion. We also do not know why five chief judges, including Judge Kureshi, and several other state judges, are now being transferred to different courts. This is not intended to mean that these decisions are unfounded. It is possible that each of the decisions made is based on administrative needs. But whatever the reasons, the public certainly has a right to it.

The middle ground

Separation of powers is a basic principle of Indian constitutionalism. This idea is the guarantee of an autonomous judiciary. To this end, the process of appointing and transferring judges becomes important. But the question of the balance between the sovereign appointment function and the need to guarantee an independent judiciary has long been preoccupying the republic.

The creators of the constitution argued over this question for many days. Ultimately, they accepted what Dr. BR Ambedkar referred to as “middle ground”. This pathway provides the following: Supreme Court justices are appointed by the President of India in consultation with the Chief Justice of India (CJI) and other judges he deems appropriate. High court judges are appointed by the president in consultation with the CJI, the governor of the state, and the chief justice of that court. In the case of transfers, the President may, after hearing the CJI, transfer a judge from one High Court to another.

Where primacy rests

In this draft there will be no mention of a “college”. But since 1993, when the Supreme Court ruled the second judge’s case, the word consultation has been interpreted as “consent”. In addition, according to the Court of Justice, this consistency should not only be ensured by the ECJ, but by a body of judges referred to in the judgment as a “college”. In the end, the Court created an entirely new process for appointment and transfer, and created a system of fictitious primacy in the top echelons of the judiciary.

This procedure has now been clarified. The college for appointments to the Supreme Court and for transfers between high courts now includes the CJI and its four senior colleagues and for high court appointments the CJI and its two senior colleagues. In appointing judges to the high courts, the college must also consult other senior judges of the Supreme Court who previously served as judges of the high court under consideration. All of this is recorded in a “Memorandum of Procedure” (MoP). In fact, however, there are no specific guidelines for the selection of judges.

The NJAC and after

In 2015, Parliament attempted to reverse the labyrinthine procedures of the Court through the 99th constitutional amendment. The National Judicial Appointments Commission (NJAC) created by law consisted of members of the judiciary, the executive branch, and the laity. But the court failed in efforts to replace the college and held in the Fourth Judges case that the primacy of justice in appointments and transfers was an essential feature of the constitution. In other words, the Court found that a body not mentioned in the actual constitutional text had taken such a sacrosanct position that even a constitutional amendment could not affect it.

Of course, the NJAC was far from perfect. There were legitimate concerns that the commission might have led to the appointment of malleable judges. It is therefore plausible to argue that the College is the best solution until a suitable alternative is formulated; that giving priority to senior Supreme Court judges in appointments and transfers is the only viable way to ensure the independence of the judiciary.

But when the court knocked down the NJAC, it also promised to reform the existing system. Six years later, these promises are almost forgotten. A new MoP, for example, is nowhere in sight. The considerations that must go into the process of selecting judges remain unresolved. The words “merit” and “diversity” are tossed around without proper debate about what they actually mean. Somehow, in the midst of it all, we have reached a consensus that concealment of the selection process is essential to judicial autonomy and that there is no legitimate reason why the public should know how judges are selected and transferred.

In the case of the latest recommendations, five Chief Justices of High Courts were replaced. Our constitutional scheme does not allow the Supreme Court to exercise administrative oversight over the Supreme Courts. But when transfers are routinely made, when the process of appointing chief justices in high courts is kept secret, a de facto oversight system is put in place.

Get the shine back

It is clear that we have come a long way from a time when Chief Justice of the High Courts turned down invitations to the Supreme Court because they appreciated the work that was already entrusted to them. The restoration of this prestige position in the Supreme Courts must be seen as essential to the process of building confidence in our Constitution. Achieving this will undoubtedly require more than just optimizing the appointment process. But what is clear is that the current system and the mysteries that underpin decision-making only dilute the importance of the high courts.

When chief judges are zealously moved and given a term of office of months at best, it is impossible for them to make permanent changes. At some point we have to take the task of reforming the existing system seriously, because the status quo ultimately attacks the very institutions it wants to protect.

Suhrith Parthasarathy is an attorney at Madras High Court

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