History’s lessons for constitutional reform

ARGHYA SENGUPTA

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THE Supreme Court recently issued notice to the central government in Suraz India Trust v. Union of India,1 a case which urges review of the collegium method for appointment of judges, laid down by the court in its earlier decision in Supreme Court Advocates on Record Association v. Union of India.2 The collegium method by which the Chief Justice of India and four senior most puisne justices, in the case of Supreme Court appointments, and two senior most puisne justices, in the case of High Court appointments, have a determinative role in the process of judicial selection, was laid down as the best manifestation of an ‘integrated "participatory consultative process" for selecting the best and most suitable persons available for appointment.’3 Though it was at the time widely hailed as a marked improvement over executive-led appointments that were considered gravely inimical to the independence of the judiciary, several principled and practical problems have riddled the operation of the collegium system itself over time, leading to widespread calls for institutional reform.4 

This essay does not discuss the problems the collegium system faces or the shape that reforms ought to take. Instead, it goes back in history to the discussion of the provisions relating to appointment of judges in the Constituent Assembly and surrounding debates at the time. Doing so is instructive in several ways, two of which are particularly useful while contemplating law reform. First, the principles that the Constituent Assembly believed that judicial appointment provisions in the Constitution must espouse – namely judicial independence and ensuring the dignity of the judiciary – are as relevant today as they were at the time the Constitution was formulated. How such principles shaped the provisions at the time would be useful to understand prior to considering and putting in place alternative provisions.

Second, it would be as significant to consider the aspects that the Constituent Assembly failed to factor in while drafting the provisions on appointments. Several speeches by members of the assembly suggested various alternatives to the current provisions on appointments in the Constitution, many of which were inadequately discussed. Understanding both the salient aspects of the discussions relating to judicial appointments in the Constituent Assembly as well as its shortcomings will, it is hoped, provide useful preliminary knowledge prior to any legislative or judicial reform of the appointments process.

Needless to say, in turning my attention to the debates of the Constituent Assembly, it is not my intention to either subscribe to or recommend an originalist interpretation of the Indian Constitution. Techniques of constitutional interpretation provide a rich subject for discussion, one that must necessarily take place elsewhere. My limited objective is to turn to history for the lessons it teaches us, so that any proposal for reform is suitably informed by both the positives as well as the pitfalls of past experience.

 

Debates in the Constituent Assembly regarding appointments to the higher judiciary were brief, lasting no longer than a week in total.5 These focused mainly on Draft Article 103(2) which became Article 124(2) of the Constitution of India.6 In these discussions, there was a keen perception of the ends which had to be achieved – the independence of the judiciary and safeguarding the dignity of the institution; the interests to be accommodated – a balance between governmental oversight and judicial autonomy in administration; a sharp awareness of the constitutional position in other jurisdictions, most notably in the United Kingdom and the United States of America; and equally, a realization of the need to institute a system that would be effective in India’s political culture.

 

Several distinct systems of appointment were vigorously debated and their merits and demerits scrutinized. The aim was clear – reaching a consensus on a system which would best ensure the independence and dignity of the judiciary as an anti-majoritarian bulwark in India’s constitutional democracy, comprising judges, who in Nehru’s words would be ‘of the highest integrity... people who can stand up against the executive government and whoever may come in their way.’7 

There were two themes which formed the fulcrum around which issues regarding appointments were debated – the independence of the judiciary and, to a lesser extent, ensuring the dignity of the judicial office. As far as the independence of the judiciary is concerned, one of the earliest nuanced understandings of the concept in an Indian report can be found in the Report of the Sapru Committee in 1946, which formed a basis for considerable discussion in the Constituent Assembly.8 This report understood the need for independence as a check against party politics and executive influence. In terms of legal provision it meant that appointments would have to be taken out of the unfettered discretion of the executive as was the case under colonial rule. Thus for the first time a consultative method of appointment was proposed – the precursor to Article 124 and Article 217 of the Constitution – with judges of the Supreme Court appointed by the President in consultation with the Chief Justice of India and judges of the High Courts also appointed by the President, in consultation with the Chief Justice of the High Court, the Premier (Governor) of the province concerned and the Chief Justice of India.9 

 

The rationale behind this provision thus was that the inclusion of the apolitical office of the Chief Justice of India for Supreme Court appointments, as well as the Chief Justice of the High Court for High Court appointments would ensure an appropriate counterbalance to political factors which may influence the selection by the executive. Though the final word would be with the President, it was felt that a multiplicity of high constitutional authorities, some of whom were apolitical, would ensure that appropriate criteria would be used and judges of the highest quality would be appointed.

In the Constituent Assembly itself, this matter was first taken up by an ad hoc committee on the Supreme Court.10 The committee had little to add in terms of the conceptual understanding of judicial independence, implicitly accepting the equation of independence with non-politicization of the judiciary. However, in terms of effectuating judicial independence, it modified the consultative proposal suggested by the Sapru Committee Report by recommending a panel of eleven persons which would confirm the nomination made by the President in consultation with the Chief Justice of India. Alternatively, it suggested that this panel would recommend three candidates and the President in consultation with the Chief Justice of India would have to nominate one out of the three. The panel would take decisions by two-thirds majority and to ensure independence, it would have a ten year tenure.11 

 

Though the reasons for adding a panel nomination requirement, thereby widening the pool of persons to be consulted, are not delineated in the report, two rationales can be evinced from the proposal. First, the panel was to consist of representatives of the legislature, executive and the judiciary. Hence, political influence was sought to be offset not just by the apolitical office of the Chief Justice of India as the Sapru Committee had sought to do, but rather by a broad, bipartisan body, which may, in their opinion, serve as a more efficient check. Second, the committee perhaps was cognizant of the human failings which may beset the Chief Justice of India.12 Though the Chief Justice would undoubtedly be a man of integrity, giving him the sole consultative role, it may have been felt, would lead to unchecked power. Thus, consulting a panel with a diverse composition was deemed a more expedient way of ensuring independence of the judiciary and fairness in the process of judicial appointments.

 

In adopting the panel method for appointment of judges, the ad hoc committee set the parameters of future debate on the independence question. Rather than a conceptual discussion on judicial independence and its precise relevance to the appointments process, the discussion concentrated on a determination of specifics of the authorities to be consulted, parameters which have scarcely been transcended sixty years hence. By then judicial independence had come to assume a fixed meaning within political and legal circles, which was the need to prevent the politicization of the higher judiciary, specifically from the threat of the executive seeking to appoint pliant judges.

But would an appointment process dominated by political authorities affect the independence of the judges in office or would it affect the separation of powers enshrined in the Constitution? Why would the view, prevalent in the United States, that questions of judicial independence arise only after appointment, thereby concerning tenure and salary protections, and not appointment (which can be an overtly political process) apply? Was it actually a fear of loss of independence or an equally significant, albeit partly distinct fear, of judges not being appointed on merit if political authorities would be primarily responsible, that was being expressed? Unfortunately, these questions, key to understanding the principles involved in the appointments process, were substantially foreclosed by a dogmatic equation of judicial independence with non-politicization, turning the focus solely to the mechanics of the process.

 

In discussions regarding this proposal on the floor of the Constituent Assembly, there was considerable unanimity among the members that the President was the appropriate authority to make appointments. The threat of politicization which would plausibly flow from this would hence have to be offset. Thus consultation with the Chief Justice of India and other judges of the Supreme Court and the High Courts as the President may deem necessary, it was felt, would be sufficient safeguards against executive abuse of power. It was clear that the provision for consultation would be entirely discretionary on the President though, given colonial practice, it was expected that the convention of speaking to the Chief Justice before making appointments would continue. The need to make consultation mandatory, the weight attached to the opinion of those consulted and the course of action in case of disagreements were not deliberated at this time, since there was an implicit belief in the need for non-politicization of the judiciary being a cardinal principle shared across the political spectrum that did not require further prescription.

Pursuant to this discussion, the drafting committee recommended the addition of a proviso which made consultation with the Chief Justice of India mandatory.13 By the time this provision put forward by the drafting committee was taken up for discussion on the floor of the assembly, Constituent Assembly members, for the first and only time, moved beyond the simplistic and hitherto unquestioned notion of independence as the need to prevent politicization to a brief, albeit rich discussion of the concept and what it entailed. According to K.T. Shah, a preliminary distinction would have to be made between separation of powers and independence of the judiciary. Whereas the former implied that executive and judicial powers did not vest in the same authority, the latter was more all encompassing, requiring functional separation of the judiciary from the other organs of government as well.14 

 

Carrying this idea forward, K.M. Munshi believed that the primary ramifications of functional judicial independence would be on the need to ensure fixed salaries once an appointment is made, the process of removal and post-retirement employment of judges.15 The need for functional independence was nuanced by T.T. Krishnamachari who cautioned the assembly not to get carried away with the idea of independence as that would result in a judiciary, which would become an ‘Imperium in Imperio... operating as a sort of superior body to the general body politic.’16 This view found resonance amongst the members of the assembly, who emphasized the importance of adequate checks and balances on the judiciary which would aid in effective decision making which, in turn would secure public confidence in the institution. In particular, Alladi Krishnaswamy Ayyar believed that for the Constitution to function, it was essential that the organs of government collaborate with each other towards a common end. If judicial independence was elevated to the level of dogma, he felt that the institution shorn of its restraints could assume the role of a ‘super legislature or super executive’17 – roles which it would be illegitimate and incompetent to play. The general agreement regarding these views meant that independence of the judiciary and not its insulation was the prevailing view of the members of the Constituent Assembly.

 

In terms of what judicial independence required as far as appointments were concerned, two alternatives to the drafting committee provision were advanced. The first alternative recommended the need for concurrence of the Chief Justice of India to the President’s nomination, as a way to reduce executive discretion and ensure independence. The genesis of the proposal to obtain the concurrence of the Chief Justice of India for judicial appointments was in a memorandum submitted by the judges of the Federal Court and the provincial High Courts in March, 1948.18 The memorandum noted that merit was not always the sole criterion for appointment and political considerations were often present.19 To obviate the possibility of such extraneous political considerations influencing appointments, the judges themselves believed that concurrence of the Chief Justice of India would ensure a sufficient safeguard against political pressures being imposed at the highest levels of government.

Taking his cue from this memorandum, B. Pocker Sahib, and other members of the assembly, forcefully articulated the need for all judges to be appointed on merit alone, an aspect which the Chief Justice of India would be most appropriate to comment upon. If judges themselves or the public at large suffered from the perception that any appointment was tainted by extraneous factors, the reputation of the judiciary as a neutral arbiter of disputes would be interminably compromised.20 This clearly suggests that the concern was primarily about merit in the higher judiciary, an aspect on which its independence was contingent, but nonetheless a partially distinct concern.

 

Responding to these objections, B.R. Ambedkar, the chairman of the drafting committee, appreciated the concern which motivated such amendments. However, he felt that seeking the concurrence of the Chief Justice of India would be giving him a veto power on appointments. Such a power without any checks and balances would defeat the careful inter-institutional equilibrium that had been envisaged for the appointments process. Besides, an unchecked power had large potential for abuse, given that the Chief Justice of India despite being a person of high integrity, could only be expected to suffer from infirmities and biases as any mortal would.21 As a result, the amendments seeking concurrence of the Chief Justice of India, both for Supreme Court appointments22 and High Court appointments23 were negatived. At the same time, no provision was made for expressly resolving disagreements between the constitutional functionaries involved in the appointments process.

Two aspects of Ambedkar’s response are particularly crucial. First, in refusing to accord a determinative role in the matter of appointments to the Chief Justice of India, Ambedkar underlined the fundamental executive nature of the power to appoint judges. His inspirations were the British and the American systems, both of which, though distinct, gave the power of appointment to the executive, with varying degrees of checks and balances incorporated by law or convention. The incorporation of consultation with the Chief Justice of India in the Constitution was, hence, not in any way a concession of the fundamental nature of the power of appointment. It was rather a necessary check to ensure merit since conventional checks such as those prevalent in the United Kingdom had yet to develop in India.

 

Second, without questioning the integrity of the Chief Justice of India, Ambedkar shows cognizance of the possibility of operation of inherent biases and prejudices were the Chief Justice to be accorded an unchecked power. The emphasis is, hence, not only on the need for a multiplicity of authorities, an aspect which has been elaborately discussed in subsequent judicial decisions, but equally on preserving an inter-institutional balance, with the judiciary and executive mutually informing and checking each other. This is an aspect of judicial appointments, focusing on the procedure followed in appointments as much as on the authorities involved in it, which was inadequately discussed in the assembly. It has consequently been lost sight of in contemporary debates that have focused instead on an inadequately developed conception of multiplicity.

The second alternative proposed in the Constituent Assembly provided for legislative approval of judicial appointments. Though articulated in slightly varying formulations,24 the essence of these amendments was to ensure merit and judicial independence by appointing persons who enjoyed the confidence of Parliament across party lines in an open and deliberative setting. However, this amendment was negatived,25 in my opinion, without a full and effective debate on its merits. The majority view expressed by the members was that involving the legislature in the matter of judicial appointments would inevitably erode the dignity of the judicial office.26 Judicial appointments, they felt, would become a matter of political give and take and lobbying by candidates would significantly denude public confidence in the judiciary. Further, the process itself would be time consuming and subject to the delays which would inevitably beset Parliament in its functioning. Ambedkar believed that Indian legislators had not reached the level of responsibility as demonstrated by their American counterparts and, hence, leaving appointments in their hands would be unwise.27

 

In my opinion, the majority of the Constituent Assembly was correct insofar as gauging the practicalities of parliamentary approval were concerned. The process would undoubtedly be cumbersome and the possibility of political parleying for judicial positions would certainly erode the dignity of the judicial office and compromise the independence of the judiciary. But one of the merits of this method was the possibility of an open and transparent discussion of the antecedents and abilities of the men and women who would be selected to the higher judiciary. This virtue of openness per se had the potential for checking executive caprice as well as preventing extraneous factors from operating in judicial selection. Most importantly, it could separate the wheat from the chaff, isolating candidates suggested on merit from those whose candidacy was backed by extraneous reasons.

Unfortunately, in the Constituent Assembly, openness and transparency in judicial selection was intertwined with legislative approval of appointments and, hence, categorically dismissed. This was another instance when the appointments process was viewed solely through the prism of the authorities involved, rather than the procedure to be followed. As a result, independence in judicial appointments was left to be secured by the process of consultation with the Chief Justice alone, which Ambedkar and the majority of the Constituent Assembly believed ‘may be regarded as sufficient for the moment.’28

 

On the whole, the Constituent Assembly believed that judicial independence was the crucial value to be safeguarded while devising a system of appointment of judges to the higher judiciary. The conceptual discussion of judicial independence was surprisingly brief – the drafters were unanimous that independence meant preventing politicization of the higher judiciary, the main threat being the executive government. Whether some of the concerns the drafters had, such as appointments by political authorities, were related to separation of powers, judicial independence or purely merit of appointees, was not adequately probed. At the same time, the inter-relation between the conceptual questions themselves were not considered in great detail.

The mechanics of the process of appointment, however, were more elaborately debated. The primary concern was to maintain an inter-institutional equilibrium – institute a process shielded from excessive executive interference, without insulating the judiciary completely. This equilibrium was sought to be effectuated through the consultative system of appointment of judges – the power focally residing in the President but exercisable only after consultation with the Chief Justice of India. It was an authority-centric approach – a provision which secured independence by vesting high constitutional authorities with significant powers in relation to judicial appointment. The focus on authorities to be involved in the process, however, came at the cost of discussing the procedure to be followed, an aspect that alternative proposals made in the assembly had touched upon. This was unfortunate but unsurprising, stemming from an unquestioned belief in the fundamentally virtuous nature of the judiciary and the spirit of national unity with which it was expected to function alongside its coordinate organs, a spirit which would make any further prescription superfluous.

As succinctly stated by K.M. Munshi in the Constituent Assembly, ‘(The) safeguards are there. Largely, however, it will depend on how the judiciary works, what the spirit of the legislature is and in what spirit the executive works. That is a matter which principally lies... with those working the Constitution.’29 Today, as those working with the Constitution consider amending its provisions on judicial appointments, reflecting on the Constituent Assembly discussions in this regard, gleaning its virtues and concentrating on the matters that were overlooked, may be a useful preparatory exercise.

 

* I would like to thank Professor Paul Craig for his comments on a draft version of this article. The usual disclaimers apply.

Footnotes:

1. W/P (Civil) No. 204 of 2010.

2. (1993) 4 SCC 441.

3. Per Verma J., at paragraph 80, (1993) 4 SCC 441.

4. For illustrative examples, see V.R. Krishna Iyer, ‘Judicial Appointments and Disappointments’, The Hindu, 18 August 2012, available at: http://www.thehindu.com/opinion/lead/judicial-appointments-disappointments/article3785898.ece (last visited 1 December 2012); Justice D.V. Shylendra Kumar, ‘Errant Judges and Secretive Collegium of the Supreme Court’, available at https://sites.google.com/site/justdvskumar/errant-judges-and-secretive-collegium-of-the-supreme-court (last visited 1 December 2012); T.R. Andhyarujina, ‘Appointment of Judges by Collegium of Judges’, The Hindu, 18 December 2009, available at: http://www.thehindu.com/opinion/ op-ed/article66672.ece (last visited 1 December 2012).

5. Debates were held on 29.7.47, 23.5.48, 24.5.48, 27.5.48, 6.6.48 and 7.6.48. The brevity of the first debate which laid the foundation for future discussions led to considerable disappointment as articulated by a member of the drafting committee, Sir N. Gopalaswami Ayyangar. See Constituent Assembly Debates, Vol. IV, p. 901 (hereinafter ‘CAD’).

6. Article 124(2) of the Constitution of India reads: ‘Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.’

7. CAD, Vol. VIII, pp. 246-247.

8. Constitutional Proposals of the Sapru Committee. Padma Publications, Bombay, 1945.

9. Recommendation 13(3), Constitutional Proposals of the Sapru Committee, Paragraph 259, p. 193.

10. The committee presented its report on 21.5.47. See B. Shiva Rao, The Framing of India’s Constitution, Vol. II. Indian Institute of Public Administration, New Delhi, 1967, p. 587 (hereinafter ‘Shiva Rao’); For an insightful commentary on the discussions in Constituent Assembly with regard to the judiciary, see Granville Austin, The Indian Constitution: Cornerstone of a Nation. Oxford University Press, New Delhi, 1999.

11. Ibid., at p. 590.

12. This is a view held by B. R. Ambedkar, expressed in relation to whether appointment of judges would require the concurrence of the Chief Justice of India. See CAD, Vol. VIII, p. 258.

13. The proviso to Draft Constitution Art. 103(2) reads: ‘Provided that in the case of appointment of a judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.’ See Draft Constitution Prepared by the Drafting Committee, 21 February 1948, in Shiva Rao, Vol. III, p. 509 at p. 554.

14. CAD, Vol. VIII, p. 218.

15. CAD, Vol. VIII, p. 220.

16. CAD, Vol. VIII, p. 389.

17. CAD, Vol. XI, p. 837.

18. Shiva Rao, Vol. IV, p. 193.

19. Ibid., at p. 194.

20. CAD, Vol. VIII, p. 233; Reiterated by Mahboob Ali Baig, CAD, Vol. VIII, p. 238.

21. CAD, Vol. VIII, p. 258.

22. CAD, Vol. VIII, p. 261.

23. CAD, Vol. VIII, p. 674.

24. Per Prof. Shibban Lal Saksena, CAD, Vol. VIII, p. 231; Per Prof. K. T. Shah, CAD, Vol. VIII, p. 234.

25. CAD, Vol. VIII, p. 260.

26. Per Rohini Kumar Chaudhari, CAD, Vol. VIII, p. 251.

27. Per B.R. Ambedkar, CAD, Vol. VIII, p. 258.

28. Per B.R. Ambedkar, CAD, Vol. VIII, p. 258.

29. CAD, Vol. VIII, p. 220.

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