Symposium: Appointments, Accountability and Independence: The Indian Supreme Court at a Crossroads

Anashri Pillay

Durham Law School

The Supreme Court of India (SCI), arguably the most powerful Court in the world, occupies an unusually prominent position within discussions of Indian constitutionalism. Recent accounts of the SCI are striking for the contradictions they highlight. The narrative of the SCI as a stalwart champion of pro-poor causes is hard to reconcile with instances of extreme judicial deference in the face of e.g. governmental neglect of land rights and worker protection. The image of a vibrant judiciary is difficult to maintain in the face of an apex court beleaguered by allegations of misconduct.

Challenges facing the Supreme Court – ranging from its backlog of cases to delays in appointment of Supreme Court judges to significant inconsistencies in judicial approaches – have been well-documented by journalists, activists and academics over the years. But the crisis currently facing the court is more deep-seated than these problems suggest and threatens the credibility of the Court in a fundamental way. The focus has shifted from external pressures to the Court’s complicity in its tarnished reputation. The Court has displayed a disturbing antagonism to scrutiny of its own actions. Thus, it has been swift to use contempt of court powers to sweep aside public and media concerns about judicial corruption and it has resisted all attempts to bring its actions within the scope of the Right to Information legislation. The extraordinary January 2018 ‘judges press conference’ in which four Supreme Court judges voiced their concern over the integrity of the bench and publicly criticised the Chief Justice of India (CJI), Dipak Misra, for mishandling the allocation of sensitive cases is an indication of just how serious the situation has become.

In this context, reform of the judicial appointments processes may not appear to be the most urgent of the issues facing the court. However, the appointments process is yet another way in which the Supreme Court has insulated its actions from public scrutiny. The judicial appointments system has contributed to widespread concerns about the lack of judicial accountability. The current system for judicial appointments in India arose from the Supreme Court’s controversial interpretation of the Constitution in the Second Judges (Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441) case.  In this case, a majority of the judges effectively gave the CJI primacy over the judicial appointments process by holding that if, at the end of the process of consultation mandated by the Constitution, there was a difference of opinion between the CJI and the executive, it was the opinion of the CJI which would generally prevail.  The Third Judges (Special Reference No. 1 of 1998 (1998) 7 SCC 729) case then affirmed this finding and set out the collegium system which has since been used to select judges.  According to this system, the CJI’s recommendation is made in consultation with other judges of the Supreme or High Courts (depending on the post to be filled).  The executive may send this recommendation back to the collegium for reconsideration. However, if the collegium chooses to stand by its recommendation, the executive must appoint the individual(s).

The system has always been defended on the basis of judicial independence, a value determined by the Supreme Court to be part of the basic structure of the Constitution. The constitutional text simply states that the President appoints judges to the High Court ‘after consultation with’ the ‘CJI, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court’ (Art. 217). In the Second Judges case, the judges reasoned that the Constitution signalled a break from executive dominance over judicial appointments and went on to find that judicial independence demanded judicial primacy in the appointments process. The collegium system has come under attack from the very early years of its existence. Criticism is based not just on the fact that the system neglects judicial accountability, but on the fact that it fails to protect judicial independence, the very thing which supposedly provided the underlying rationale for the system.

Over the years, the system has not prevented the executive from exerting pressure on the CJI over the selection of judges. Faced with a politically undesirable recommendation from the collegium, government may use the media to stymie an appointment. The smear campaign against Gopal Subramanian in 2014 is an example here. Government may also choose to simply delay the appointment, as the current furore over the treatment of Justice KM Joseph’s candidacy demonstrates. In the absence of a more transparent system for the selection and appointment of judges, it is difficult to hold either the executive or the judiciary to account for their choices.   2014 saw a serious attempt to reform the appointments system through constitutional amendment. However, in 2015, the Supreme Court found the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) and the National Judicial Appointments Commission Act of 2014 to be unconstitutional, thus stymying a move towards a commissions-based system. Whilst many in India support the move to a commissions-based model, the NJAC legislation left too many questions unanswered. The Act did not do enough to insulate the appointments process from executive dominance. It also did not achieve the aim of clarifying selection criteria. It is difficult to fault the Court’s concern that a commission constituted under the terms of the Act would threaten judicial independence. However, the insistence by some of the judges that judicial independence may only be protected if judicial primacy over appointments is maintained is worrying. Such an approach ignores the possibility and existence of commissions that are not dominated by either politicians or judges. Moreover, in finding that the Act was unconstitutional, the majority did not engage with the lack of transparency and accountability in the current system. Famously, the Court has a wide range of interpretive and remedial tools at its disposal. Choosing to simply strike down the legislation was perhaps an instance of throwing the baby out with the bathwater.

Judicial appointments processes are imperfect. A commission in which institutional interests are completely balanced may not be attainable. However, in jurisdictions which have adopted a commissions-based approach, the transparency of the process and clear selection criteria have proved to be as, if not more, important than the affiliations of the members of the commission. A more transparent process would require that government justify its current claims about why Justice Joseph should not be elevated to the Supreme court according to agreed, publicly known selection criteria. Reform of the judicial appointments model is urgently needed in India. In a sense, then, the current crisis must also be viewed as an opportunity. The very public airing of its accountability issues may finally provoke more serious change to the judicial appointments system. That would be a welcome development.

Anashri Pillay is an Associate Professor in Law at Durham Law School.