The recent war of words between the higher judiciary and the political executive has revolved around the question of who has the power to appoint judges to the High Courts and the Supreme Court of India. Below “collegium system— own product Supreme Court’s 1993 decision – The three senior-most judges of the Supreme Court make recommendations for appointments to the High Courts; While the government can provide input, and ask for reconsideration, if a recommendation is reiterated, formally, the government is bound to accept it.
Editorial | Bench and bigotry: on the appointment of advocate Victoria Gauri as a judge of the Madras High Court
now famous controversy around Appointment of L Victoria Gauri in the Madras High Court Saw the reverse of this pattern. After the collegium recommends his name for judgeship, filed a petition in the Supreme Court challenged this appointment, on the grounds that she was allegedly involved in “hate speech” against Muslims and Christians. The Chief Justice of India (CJI), who heads the Collegium, said that the Collegium has taken cognizance of the new material; But before anything could happen about it, the process of appointment was completed. The last attempt to stop it was through a legal challenge overruled by two other Supreme Court justices,
ambiguity problem
The controversy signals some persistent, structural problems with the process of judicial appointments. The first problem is ambiguity. The functioning of the Collegium can be compared to judicial appointments in other democratic countries, such as the United States, South Africa or Kenya; While the specific procedures differ, they are all open. In each of these jurisdictions, the names of judicial candidates are publicly known before the formal start of the selection process. In such a scenario, facts like Ms. Victoria Gowrie’s statement will inevitably come to the fore and the selection bodies will know. The selection bodies will take them into account, and indeed, given that judicial candidates are required to face questions in these jurisdictions, the candidate will be asked to explain and justify the statements, and they will reflect on his or her judicial philosophy. How to relate to – a discussion that will be public. At the end of the process, the selection body will take its decision.
In contrast, in India, the name of the candidate is effectively made public after his/her selection by the collegium. The selection process takes place 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 disproportionate costs: it is clear that where the government approves a particular candidate, it can easily withhold relevant information from the collegium (indeed, this is the only possible implication from the CJI). Comments about allegations of hate speech). This, then, creates a situation similar to the present situation: by the time a candidate’s name is in the public domain – allowing relevant material to be brought to the notice of the collegium by the public – the selection has already taken place. Once again, the result is asymmetric: given that the government retains the power of formal appointment, once it approves a candidate, it can expedite the process (as has happened in the present case). In other cases, the government can exercise the pocket veto (which it has done with respect to the Madras High Court, refusing to appoint a judge under an explicit instruction by the collegium).
a janus-facing collegium
The above problem leads directly to the second problem. Once the Collegium’s recommendation is made, the only way to challenge it is through a legal challenge. However, the challenge must be before the Supreme Court itself, which can lead to an awkward situation: the decisions of the Collegium – the three (or five) senior-most judges of the Supreme Court – must be challenged before their own junior colleagues (and these The colleagues will be assigned the case by the CJI, who is himself the head of the collegium). While technically, in recommending a name, the collegium acts as an administrative body, and all administrative decisions are open to judicial review, in practice, judges are required to sit in judgments of their own senior colleagues. The problem can be seen immediately.
The problem was evident during this hearing, where both judges (apparently) repeatedly demonstrated discomfort at being asked to sit in on the collegium’s recommendation, and insisted that the collegium consider all the facts when making its recommendation. (despite the recommendation of the CJI and public observation to the contrary).
It shouldn’t be like this. Consider the case of South Africa, where the proceedings of the Judicial Appointments Commission are subject to judicial review, and where the courts have directed the commission to make its deliberations public. This is not to suggest that the South African appointments process is perfect, but what does exist is a system of checks and balances, with the values of transparency and promotion at its centre. And this can only happen if there is a degree of separation between the judicial appointment commission and the court: it allows an inquiry, and it allows a corrective mechanism in case of mistakes and errors (because to err is human ).
However, the appointing body (collegium), the body for constituting benches (office of the CJI), and the judicial review body (Supreme Court) are all effectively one and the same, but trying to play separate and functionally independent. roles, improvisation becomes very difficult.
Furthermore, the judges insisted that the only question they could consider in judicial review was whether L. It’s Victoria Gauri’s merit, not suitability. Leaving aside the question of whether the alleged hate speech is a question of suitability or merit, this is a true position, but once again, it depends on the question of suitability being fully considered during the selection process. So, we return to the problematic structural ambiguity of the collegium, and how it benefits the political executive: because the proceedings are opaque, and the only other party is the government; The government can influence the material on the basis of which the collegium determines “suitability”. And once the Collegium has made its determination, and the names have become public (allowing further material to come out) the question of “appropriateness” now comes to the fore. It should be immediately clear that this is seriously detrimental to judicial independence.
root of the problem
The judicial order dismissing the challenge to Ms Victoria Gowrie’s appointment was a chronicle of failure: once the collegium’s recommendation arrived, it was clear that, for the reasons stated above, regardless of will and willingness, there was no turning back. Will go away The motivation of the individual actors involved. But taking a step back from the specific actors in this drama, it is important to trace the roots of the problem to the structure of our judicial appointments process. The present structure is problematic not only in principle but also because it asymmetrically benefits the political executive. While the case of L Victoria Gauri is a clear example of this disparity, the problem does not begin or end with this appointment. We need an appointment process that actually protects judicial independence from executive dominance.
Gautam Bhatia is a lawyer based in Delhi