Judicial appointments not above reproach

All eyes are on the Supreme Court: it will decide on the validity of the Judicial Appointment Commission Bill, challenged by the Supreme Court Advocates on Record Association. The petition seeks to quash the 121st Amendment to the Constitution. What are the issues at hand?Just as we examine checks and balances with respect to parliamentarians and bureaucrats, it is important to look at the institutional performance of the Supreme Court under the extant Collegium system and the possible impact of change.

The origins of the Collegium system would seem to lie in an observation of the Supreme Court in SP Gupta v. Union of India , ‘We would rather suggest that there must be a collegium to make a recommendation to the President in regard to appointment of a Supreme Court or High Court Judge….’. Prior to the Collegium system, the Union Executive (Cabinet) had the power to determine appointments to the Supreme Court; this was most telling when certain judges were superseded with no apparent reason, except that their views on the Constitution was contrary to that of the Government.

However, there is no way of finding out how many appointments the Cabinet acting through the President (or President himself), did not approve, or how many appointments the Supreme Court Collegium did not approve. In other words, in the absence of transparency , there is probably no way of determining how well the Collegium system worked: the appointment of undeserving candidates, or the failure to appoint deserving candidates will never be known. For the same reason, we cannot evaluate the earlier system – except to note that the Cabinet had thrice vetoed deserving candidates.

While it is easy to examine the contribution of a judge to the jurisprudence of law, it is difficult to examine the (negative) effect of a particular judge on administration of justice without cogent evidence. While people are quick to make allegations of corruption against a judge, it is imperative that these objective standards be applied while examining such allegations.

Failure to address these adversely affects institutional credibility and economics of the Supreme Court. The transparency attached to the system of appointing judges affects administration of law by a judge, and therefore on the functioning of the Constitution.

The letter and spirit of law demand that people be made aware of appointment system for important constitutional functionaries. While the Constitution of the United States recognised this principle, today, the system is mired in politics and the Senate Judiciary Committee cannot work without the effect of political considerations.

Even so, an institution that impacts the nation, its people, the Constitution and itself, should have transparency with respect to its own constitution. This is in recognition of the basic principle of balancing power between the executive, legislature and judiciary.

Entry 77 of List 1 of Schedule 7 of the Constitution empowers the Parliament to legislate in respect of ‘Constitution, organisation, jurisdiction and powers of the Supreme Court…’. However, can, or should, Parliament legislate in respect of appointment of judges to the Supreme Court? If courts were allowed to legislate, that would seem incongruous, since legislation is matter for Parliament and adjudication is a matter for courts.

Analogous to the subtle tension between forces of the market in economics, there are subtle tensions in the powers of the Constitution which help strengthen the institutions. Any system under the Constitution must be one that effectively balances powers among the legislature, judiciary and executive. Measures of transparency would help in evaluating choices. These would only strengthen institutional economics of the Supreme Court and indeed, the Constitution itself.

The writer is a Delhi-based lawyer

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