Former CJI U.U. Lalit, legal scholars Dr. Faizan Mustafa and Prof. G. Mohan Gopal, and senior advocates Dushyant Dave and Dr. Aditya Sondhi spoke in a panel discussion on the subject of executive interference in judicial appointments.
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IS the current collegium system for appointing judges to the higher judiciary rigorous enough? Is the judiciary handling matters with political ramifications without fear or favour? Is the judiciary experiencing a right-ward political shift? Could having a government representative part of the collegium prove effective?
These questions were raised on Saturday during the inaugural session of the seminar on 'Judicial Appointments And Reforms', organised at the Indian Society of International Law in Delhi by the Campaign for Judicial Accountability and Reforms.
The panel at the session, titled 'Executive Interference in Judicial Appointments', featured Former Chief Justice of India U.U. Lalit, academic and legal scholar Dr. Faizan Mustafa, lawyer and legal scholar Prof. G. Mohan Gopal, and senior advocates Dushyant Dave and Dr. Aditya Sondhi.
Justice Lalit, who retired in November last year after a short tenure of two-and-a-half months as the Chief Justice of India and more than eight years as a Supreme Court judge, was of the opinion that the prevailing Collegium system is "near perfect", arguing that judges are best equipped to the determine the competency of a potential judge.
"According to me, we don't have a system better than the Collegium system. If we don't have anything qualitatively better than the Collegium system, naturally, we must work towards making it possible that this Collegium system survives. Today, the model as per which we work is a near perfect model," Justice Lalit said.
Based on his experience as a member of the Collegium, Judge Lalit stated that the recommendations are vetted at multiple levels and the Collegium undertakes an "objective analysis" of all potential candidates. He disclosed that the Supreme Court Collegium routinely follows a practice of asking for inputs from "consultee judges"; judges of the higher judiciary who may have specific knowledge about a particular person's adeptness at being a judge. "You have to have local inputs which come from there."
Even after rigorous consultations, he said, the recommendation of the Collegium is not necessarily unanimous; it may have been through a majority of five members. However, if a name is returned with objections by the Union government, "the reiteration has to be unanimous".
"It's not as if it is a whimsical exercise taken by someone. It is a full-proof arrangement", he said, defending the Collegium system. "Now imagine if the executive, the apparatus, will be in a better position to select judges."
Senior advocate Dave incriminated both the Bench and the Bar in his address, and warned of a possible premeditated plan to appoint judges of a particular ideology to the higher judiciary.
"If the government is interfering, there is every responsibility on the part of the judiciary to strike back. Judiciary cannot say that there is an executive interference and hence we cannot do anything. Judiciary must stand up. That will has to come up [from] within."
Drawing parallels to Israel, where a right-wing government headed by Benjamin Netanyahu is seeking to curb the judiciary's influence over law making and public policy by limiting the Supreme Court's power to exercise judicial review, granting the government control over judicial appointments, Dave noted that, "Millions of Israelis spoke out against it… Civil society representatives, judges, attorneys, politicians and employees were all outraged. Large-scale protests occurred in Israeli cities."
Meanwhile in India, Dave believed, there is a lack of interest in protecting the independence of the judiciary among the Bar and the general public, hinting at the non-existence of large-scale protests against the ongoing onslaught on the independence of the judiciary. Incriminating the fraternity that he is a part of, Dave said, "We're not interested in the independence of the judiciary. We don't give a damn so long as we're able to get our briefs to go about our business… It is impossible in this country for this to happen."
Dave showed his concern towards the current judges in the judiciary and stated that judges of integrity are "a dying species". "We have a large number of judges who are highly questionable. They lack the expertise, the knowledge, but most of all, the commitment. The Collegium system is in place. The judgement of the Supreme Court is the law of land. Yet, there are judges like Akhil Kureshi, Justice Jayant Patel, Justice Muralidhar and many such examples including Dr. Sondhi (who was present at the Seminar), who are suffering beyond repair. And who is the loser? The nation, the public interest."
Calling the recent comments of the Union Law and Justice Minister Kiren Rijiju "highly improper", Dave said, "What the law minister is saying about matters taken in the Supreme Court, it's clearly an obstruction of justice to my mind. Does the judiciary have the will to strike back? In my view no. Unless the judiciary has the will to strike back, start issuing contempt notices, and call up the Secretary of Justice Department, things will not start happening. But it is not happening. There is no will to take the government head on."
In Dave's views, judges of a particular ideology have been appointed across the high courts in the country. "We have lost the plot. I am a pessimist. I don't think we can overcome the situation, especially with the kind of appointments that have been made in the last 7-8 years across the High Courts. The kind of ideology that has been set in High Courts is extremely dangerous."
Batting for Constitutionalism, Dave said, "We need only one ideology in our judiciary — the Constitution of India. Nothing else. That, in my respectful view, is singularly absent. So unless the judiciary buckles up, unless the judiciary tells the government that we are the final arbiter of the constitution, things won't change. I will request the judiciary to rise to the occasion and tell the government that we are the final arbiter".
A "deep rooted" impression is gaining ground that a member of the Bar who seeks elevation to the Bench needs to be of a particular ideology, said senior advocate Dr. Sondhi.
Dr. Sondhi's name was recommended twice by the Supreme Court Collegium for elevation as a judge of the Karnataka High Court, but the Union government had exercised its powers of pocket veto and sat on the recommendation. Anguished, he had withdrawn his consent for judgeship.
In this context, Dr. Sondhi stated that executive interference need not be overt and may take place in a subtle manner, for example, by simply not doing anything about certain recommendations.
On Saturday, Dr. Sodhi expressed his hunch that a speech by him criticising the controversial Citizenship (Amendment) Act, 2019 might have been held against him, and defended it, saying it merely questioned the Act's constitutionality. He wondered whether members of the bar no longer have the liberty to express their views on contemporary legal and constitutional issues.
Sounding a word of caution, he said, "We don't want to go down the road where the bar becomes pliant. A pliant bar is the death knell for the system itself. The bar is the stronghold of the rule of law. The bench and the bar work together. The implications of the bar becoming more pliable or compromised are serious in terms of how it affects the very ethos of our practice."
In Dr. Sondhi's view, inviting the executive to the Collegium appointment process would not improve the collegium system.
Prof. Mohal Gopal was of the view that very few judges in the past two decades could be called as "Constitutionalist judges".
"I would not say liberal or progressive, but constitutionalists, who firmly and deeply believe that all decisions have to be made exclusively on the touchstone of the Constitution and nothing else."
He raised the issue of lack of diversity in the higher judiciary, stating that a lack of representation makes it more vulnerable to forces that seek to undermine its values. "It is an oligarchy because most of the power is in the hands of only four communities. So there is no countervailing force except the Constitution. In many countries, including Pakistan, the constitutional mission reflects the oligarchy. There is no real conflict between the oligarchs and the Constitution. But here, the Constitution deliberately by introducing democracy, equality, liberty, dignity, socialism, secularism – is directly challenging the world view and the philosophy of the ruling oligarchy."
Warning against giving the executive any leeway in the appointment of judges, he said, "The government is now taking it one step forward to use the judiciary to destroy the constitution and establish a theocracy. The oligarchy controls the bar, not just the judiciary. My conclusion is that it would be very dangerous to give this government, whose mission is to overthrow the present republic and establish a Hindu rashtra, any role in judicial appointment."
The Collegium system must be defended, in his view "because it's our best hope for now." But, "the Collegium… must diversify. Religion, caste, gender, economic class – we want to have a rainbow judiciary, where everyone feels that this is our judiciary."
Dr. Mustafa warned that there is a growing concern that the judiciary is "getting more executive-minded than the executive itself", but at the same time proposed that the Law Minister be made a part of the Collegium.
Like Dr. Sondhi and Dave, Dr. Mustafa also believed in the existence of a plan to appoint judges of a particular ideology. "Why is the government interested in having judges on the same ideological planes? Ultimately SC decides big political questions. It's the final arbiter of all issues. It can influence the agenda of political action. One judge from Allahabad could strike down the appointment of Mrs. Gandhi. Today there are doubts that if Kesavananda Bharati is referred to a larger bench, we don't know which way the majority would go."
Noting that the Supreme Court has heard petitions seeking minority status for Hindus in certain states at least five times in the last three years, Dr. Mustafa said, "The plain fact remains that the court can be used for purely political ends in certain situations beyond the control of the court."
On the constitution of the Collegium system, Dr. Mustafa differed from the views of the other panellists, by stating a role be given to the Union Law Minister, suggesting that "it would be better for him to be heard in the meeting of the Collegium, where judges or members of the Collegium can be informed of his reservations regarding certain names."
"Instead of granting the power to delay or sleepover, it is better to involve him in the process. Most names can be easily cleared. The government cannot be completely excluded from the appointment of judges." To bolster his argument, he stated that "some of the greatest judges which India had were appointed by the government."
Read Part 2 here.
(With inputs from Parishti Kaushik, a student at Gujarat National Law University and an intern with The Leaflet)