Guest Post: From Translucence to Opacity: Judicial Appointments after the Victoria Gowri Case

[This is a guest post by Rushil Batra.]

---

On 10^th February, the Supreme Court handed down its verdict in the case of Anna Matthew v Supreme Court of India, dismissing the petitions that challenged Justice Victoria Gowri’s appointment as a Judge of the Madras High Court. There has been a lot of recent writing on how the government continues to defy the Collegium by selecting and segregating its recommendations. This was also visible in this case, as John Sathyam’s name remains excluded from the notification of appointment even though the Collegium had expressly mentioned that his name should take precedence. Notwithstanding the political drama surrounding the case and issues of judicial propriety that emerge from it, in this essay, I break down the judgement and highlight how, if followed, it will effectively negate judicial review in cases of judicial appointments.

To this end, I first break down the ‘reasoning’ of the court in Anna Matthew. Second, I highlight that the logic employed in this judgment is legally untenable, and third, I examine the consequences of this judgment for judicial review of judicial appointments.

Anna Matthew – The Conspicuous Absence of Logic

This judgement was delivered by a two-judge bench of the Court. While the court finally dismisses the writ petition and allows the appointment to go through, the reasons given by it are legally untenable. There are two interesting propositions in this regard that I intend to deal with here. First, that it is only the eligibility and not suitability of a person for the post of a judge which can be challenged; and second, that Collegium decisions are not subject to judicial review.

Eligibility Versus Suitability And The Lost Cause of Transparency

The court begins by saying that the law on this point is ‘well settled and no longer res integra’. Thus, it is important to see what the settled law on this issue of judicial review over judicial appointments is. In the case of SCARA v Union of India (Second Judges Case), which the court cites with approval, it was held that limited grounds exist for judicial review in case of judicial appointments. One of these grounds was the ‘lack of consultation’ amongst the constitutional functionaries required to be consulted.

The court (in the Second Judges Case) says –

Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making. (emphasis mine)

Hence, apart from eligibility, the only other factor relevant is whether there was consultation – i.e., effective consultation – which can take place only if all information is on record. Naturally, the case was to turn on this relevant question i.e., whether the Collegium was aware of these allegations against Victoria Gowri. If it was not, that is enough grounds for judicial review to proceed.

Coming to Anna Matthew, the court held that Article 217 (which gives the qualifications necessary for one to qualify as a judge of the HC) simply gives the ‘threshold requirements’ for one to be eligible to be appointed as a judge of the High Court. It then proceeds to hold that it is only eligibility that one can challenge and not the suitability of a candidate. In Paragraph 3 the court says :

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review…  judicial review lies when there is lack of eligibility or ‘lack of effective consultation’. Judicial review does not lie on ‘content’ of consultation. (emphasis mine)

Essentially, the court seems to make a sharp distinction between eligibility and suitability. While the former is laid down in Article 217 and can be a basis for judicial review, the latter cannot. Later, there also seems to be a distinction made between ‘lack of effective consultation’ and ‘content of consultation’ as grounds for challenge. So, as mentioned earlier, the next question – the most important question on which this case will be dependent – was whether the Collegium was aware of the allegations and still chose to go ahead with the appointment. The Court seems to believe so when it says: “we reject the argument that the facts were not known and considered by the Collegium.”

Therefore, the court proceeds to hold that the Collegium was very well aware of the allegations and thus ‘effective consultation’ had taken place between the Collegium and other functionaries mentioned in the memorandum of procedure – and hence no ground for judicial review exists. There is only one problem with this statement- we do not know how the Court knows this, without asking the Collegium via a notice to respond to the petition.

Another point that seems to weigh with the court is that, even after the petitioners wrote to the collegium with a representation, requesting them to withdraw the appointment, the Collegium did not act, and hence by not acting, it actively chose to go ahead with its recommendation. Hence, the inaction of the Collegium meant that they still supported their recommendation.

It would be interesting to go back a couple of days when this matter was mentioned before CJI Chandrachud – who was a part of the Collegium that recommended Gowri’s appointment. While agreeing to the list the matter, he had said this in open court:

There are certain developments which have taken place, in the sense that the collegium has taken cognizance of what was drawn to our attention, or came to our notice, after we formulated our recommendations on the recommendation of the Chief Justice of the collegium of High Court of Madras. Since we have taken cognizance of certain developments which have taken place thereafter, we can list this petition tomorrow morning. I will constitute a bench. Let that go before the appropriate bench. (emphasis mine)

Hence, even if we follow the court’s own reasoning that it is only on ‘lack of effective consultation’ and not the ‘content’ of it that the appointment of a person be challenged, this makes the court’s conclusion nothing short of bizarre. It is clear from this statement that the Collegium was not aware of the allegations made against Justice Gowri when it chose to recommend her – which according to the Court’s own admission in Anna Matthew is enough for the need for judicial review over the process. In light of this admission by the CJI, the judgment seems to be existing in a parallel reality – where the facts are not really facts – and whatever facts there are, remain confined to the premises of the Supreme Court behind closed doors. However, a rather pertinent question does emerge, which is that if the Intelligence Bureau (IB) can otherwise give the Collegium adverse reports about other candidates because they shared an article that was critical of the Prime Minister, it is very hard to believe that the premier intelligence gathering body was simply unaware of the alleged hate speech at issue. Was this then, a deliberate withdrawal of information from the Collegium? Unfortunately, we shall never know.

Furthermore, as Venkatesan argues, the court does not follow its own precedents in this instance. The court in Anna Matthew relies on the case of Mahesh Chandra Gupta v Union of India to argue that suitability (as opposed to eligibility) is beyond the court’s power to examine. However, it fails to take into consideration that in the facts of that case: there was in fact effective consultation, and the same files were examined multiple times! There the court held that it could not test the suitability of the candidate after there were multiple consultations, which is arguably not the case here. Thus, going by its own precedent, the Supreme Court should have ideally called for the official records to ascertain this fact. Only if the Collegium was actually aware of these allegations, would the demand for judicial review fail.

No Writ to the Collegium?

Curiously, the court also makes an unqualified statement, holding that it cannot issue a writ to the Collegium. This statement has significant implications. If one reads Anna Matthew, the true conclusion that emerges is that no citizen can ever approach the court challenging the Collegium’s decision (both for eligibility or suitability) – even on the ground of lack of effective consultation – primarily because of the structure and working system of the Collegium. Thus, even if there was a question of eligibility, now that the court has refused to issue a writ, there is no remedy available to obtain. For example, let us suppose that the question was about Gowri J. being a citizen of India. Even in that case, if the court has held that it cannot issue a writ to the collegium to reconsider its decision, what remedy will lie?

Ideally, the Collegium, as an administrative body tasked with appointing judges, should be amenable to judicial review. But this puts the court in a rather awkward position. This also relates back to what Bhatia pointed out earlier: the structural issue of the Janus-Faced Collegium – where the only remedy after the Collegium has given its recommendations is available is before the Court – the same court staffed by people who made the (wrong) decisions in the first place. Can two ‘junior’ judges ever disagree with the five ‘senior-most’ judges in this regard? That is anyone’s guess.

The Death of Judicial Review in Judicial Appointments

The court says:

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review. (emphasis mine)

Hence, any substantive discussion, deliberation, debate or even disagreement by the Collegium can possibly never be enquired into by the Court. Simply put, this puts the Collegium on a pedestal where no other body has ever been placed. With no judicial review of its decisions, no government or civil society representative and also no compulsion to disclose reasons for why it picks certain judges over others, the Collegium has truly become an imperium in imperio.

Unfortunately, this is not surprising. Over the past year years, in the name of judicial independence, transparency has continuously been given a go-by. In December 2022, in Anjali Bharadwaj v CPIO, this court held that the details of Collegium meetings are not subject to RTI i.e., what goes behind the closed doors in Collegium meetings can never be disclosed – apart from the resolution that is published. Qualitatively speaking, this is even worse than Anna Matthew. It is one thing if people are aware of the reasons but cannot approach the court, but it is quite another to say that people have no way of even knowing why certain choices are being made the way they are being made. The (flawed) assumption in both cases is that to ensure judicial independence necessarily requires you to give a go-by to judicial transparency. This not only erodes the people’s confidence in the institution, but it also helps the executive in putting forth the narrative of the NJAC – which is perhaps a bigger demon none of us want to encounter.

This opacity in judicial appointments is, however, not the case around the world. Take the example of South Africa where under its 1996 Constitution, judges are appointed by a Judicial Appointments Commission (‘JAC’). Under the JAC, public interviews and comments form an integral part of the appointment process. Instead of the JAC picking and choosing candidates randomly from the seniority pool, the JAC instead invites nominations from candidates. These nominations are then made public for comments – so those in consideration for a given position are known by the people – after which the JAC receives extensive comments from the civil society and the bar. The interviews are also held in open forums and even broadcasted. However, the final deliberations of the JAC happen behind closed doors.

In the case of Helen Suzman Foundation v Judicial Service Commission, the question of whether the deliberations of the JAC are subject to disclosure came up before the South African Constitutional Court. In stark contrast to the holding of Anna Matthew, the South African Court held –

… a blanket ban on disclosure, rather than a fact-specific case for non-disclosure, is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount.  (emphasis mine)

The South African Court also rejected the argument that disclosure of information would affect ‘candour of deliberations’ or that it would impact the privacy of the individual in consideration (which are often the reasons given by the Collegium/judges to avoid disclosure of information). The court (rightly) held –

JSC members worth their salt ought to be in a position to stand publicly by views they have expressed in private deliberations…Generally the most embarrassing issues that could impugn the dignity or privacy of candidates are raised during interviews. And the interviews take place in public and are often widely publicised. It is this stage that should fill candidates with dread. These are applicants who have put themselves forward for an important public office, and who must expect, and do submit to, gruelling scrutiny at the public interview. (emphasis mine)

We can evidently see the stark contrast in approaches of the South African Court and the Indian SC. Interestingly, in the case of CPIO v Subhash Chandra Aggarwal, it was Justice Sanjiv Khanna – the same judge who now writes Anna Matthew, who in his concurring judgement had held –

Independence in a given case may well demand openness and transparency by furnishing the information…Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.

Thus, it seems that the court after this case has effectively done away with judicial review over judicial appointments as a whole – and has finally gone from translucence to opacity.

The L. Victoria Gowri Elevation Controversy: Structural Issues with Judicial Appointments

This morning saw somewhat odd parallel proceedings before the High Court of Madras and the Supreme Court of India: even as L. Victoria Gowri was being sworn in as an additional judge of the Madras High Court, a challenge to her appointment was being heard before a two-judge bench of the Supreme Court. The Supreme Court ultimately dismissed the petition “with reasons to follow”, despite the fact L. Victoria Gowri had been sworn in while arguments were in progress, and the case had become infructuous. Thus, what precedential (or other) value the Supreme Court’s “reasons” will have in an infructuous case remains to be seen.

The challenge against L. Victoria Gowri’s appointment was premised on her being a former office-bearer in the ruling party (she was the general secretary of the BJP’s Mahila Morcha), as well as the fact that on multiple occasions she had made statements that – it was argued – constituted hate speech against Christians and Muslims. Examples include “the list of Christian aggression is not ending. ‘Where there is a temple, there must be many Churches’ (sic) is their aggressive motto” and “As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially Love Jihad.” Readers interested in a full catalogue can consult this piece.

In this post, I will not argue about whether these statements do or do not constitute hate speech: readers with the record before them, and an awareness of the political and social context in which we live, can make up their own minds on the issue. However, there are two constitutional concerns that have become evident through the course of this controversy, and which speak directly to the question of judicial independence.

The Opacity of Collegium Proceedings

The first concerns the process of judicial appointments. One striking feature about this case is that, apparently, the collegium (in this case, the top three judges of the Supreme Court) was unaware of L. Victoria Gowri’s public statements before it recommended her name for appointment. This is evident from the fact that when the challenge to her appointment was “mentioned” for listing before Chief Justice DY Chandrachud yesterday, he stated:

We have seen the plea and we have read it. There are certain developments which have taken place. Collegium has taken cognisance of what came to our notice and it was after our recommendation.

Despite this oral observation, however, the process of cognisance – or re-cognisance – was short-circuited when the Chief Justice of the Madras High Court fixed L. Victoria Gowri’s swearing in for this morning. The politics of this will be debated long into the future, but bracketing that for the purposes of this post, what is striking is that the collegium came to know of L. Victoria Gowri’s statements after its own processes had been completed, and (theoretically) all that was remaining was for the government to complete the formalities of the appointment.

The reason why this happened is directly related to the opacity of collegium proceedings. Consider, for a moment, how this situation would have played out, say, in the United States, or South Africa, or Kenya – all jurisdictions where judicial appointment processes vary, but are open. In any of these jurisdictions, the names of the candidates being considered for judgeship would have been publicly known before the formal commencement of the selection process. Once these names were in the public, facts – such as L. Victoria Gowri’s statements – would have inevitably come to light. These facts would then have been within the knowledge of the selection bodies (the Senate in the United States, and judicial appointment commissions in South Africa and Kenya). The selection bodies would have taken them into account, and indeed, given that all these jurisdictions require judicial candidates to face questions from the selection bodies, L. Victoria Gowri could have been asked to explain and justify the statements, and how they related to her judicial philosophy – a discussion that would have been public. At the end of the process, the selection body would have made its decision.

In India, on the other hand, we have constructed for ourselves an extraordinary situation where the candidate’s name is effectively made public after their selection by the collegium. The selection process is entirely opaque and 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, the costs are asymmetrical: it is but obvious that where the government approves of a particular candidate, it can simply withhold relevant information from the collegium (indeed, this is the only possible implication from the Chief Justice’s observations yesterday). This, then, creates a situation like the present one: by the time that a candidate’s name is in the public domain – thereby allowing for relevant material is brought to the collegium’s notice by the public – the selection has already been made. Once again, the fall-out of this is asymmetric: given that the government retains the power of formal appointment, when it approves of a candidate, it can rush the process through (as happened in the present case). In other cases, the government can exercise a pocket veto (which it has also done with respect to the Madras High Court, by refusing to appoint a judge in the teeth of an express direction by the collegium).

One can therefore see that not only is the collegium’s opacity problematic in its own right, it is problematic in that it benefits the political executive. In that sense, it is somewhat like judicial evasion: the court’s failure to decide politically critical cases is problematic from a rule of law perspective, but it is more than that: it is problematic because status quo directly benefits the political executive.

The Janus-Faced Collegium

The above issue leads directly into the second problem. Now we have a situation (as in this case) where the collegium has made its recommendation. Fresh material has been found, but because the recommendation has already been made, the only effective remedy available is a legal challenge to the recommendation. Where does that legal remedy lie? Well, before the Supreme Court itself.

This creates the following situation:

• The Supreme Court Collegium’s recommendation is an administrative decision, made by an administrative body. As such, it is subject to judicial review on administrative law grounds. However, here is the problem: whatever the formal character of the collegium’s recommendation, it is a recommendation made by the three senior-most judges of the Supreme Court, the legal challenge to which now has to go before two or three of their own junior colleagues (as happened in this case).
• Furthermore, the Chief Justice of India, who heads the collegium, is also the master of the roster, and therefore will constitute the bench that will hear the challenge. In other words, therefore, the Chief Justice, acting on the administrative side, will constitute the bench that, acting on the judicial side, will hear a challenge to an administrative decision made by a body chaired by the Chief Justice.

This is, in short, a mess. It is a mess because you have a poly-vocal Supreme Court acting in three different avatars: the collegium, the master of the roster, and the judges are all involved in this decision-making process, the sanctity of which depends upon each of these three avatars acting entirely detached from each other. But as we all know, reality simply does not work that way.

Indeed, that reality does not work that way is evident from today’s hearing: both judges hearing the case exhibited repeated discomfort with being asked to sit in judgment over the collegium’s recommendation, and insisted that the collegium must have been aware of all facts when it made its recommendation (notwithstanding the Chief Justice’s public observation to the contrary!). One cannot entirely blame them: at the very least, this was an extremely embarrassing situation for all parties concerned, an embarrassment that – once again – is directly traceable to the collegium’s structural opacity.

It is important to note that it need not be this way. Consider the case of South Africa, where proceedings of the judicial appointments commission have been subjected to judicial review (see Hlophe vs Judicial Services Commission), and where the courts have directed the commission to make their deliberations public (Helen Suzman Foundation vs Judicial Service Commission).* This is not to suggest that the South African appointments process is perfect, but what does exist is a system of checks and balances, at the heart of which are the values of transparency and publicity. And this can only happen if there is a degree of separation between the judicial appointments commission and the court: this allows for a check, and it allows for a corrective mechanism in case of mistakes and errors (because to err is human). When, however, the appointments body (the collegium), the body for the constitution of benches (the Chief Justice’s office), and the judicial review body (the Supreme Court) are all effectively one and the same, but trying to play different and functionally independent roles, correction becomes very difficulty.

Furthermore, the judges insisted that the only question they could consider in judicial review was L. Victoria Gowri’s eligibility and not suitability. Leaving aside the question of whether alleged hate speech is a question of suitability or eligibility, this is a correct position, but once again, it depends on the question of suitability having been fully considered during the selection process. We therefore return to the problematic structural opacity 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 materials on the basis of which the collegium determines “suitability”. And once the collegium has made its determination, and the names are public – allowing for further material to come out – the question of “suitability” has now been foreclosed! It should be immediately obvious that this is severely detrimental to judicial independence.

Conclusion

Today’s judicial order dismissing the challenge to L. Victoria Gowri’s appointment was the chronicle of a failure foretold: once the collegium’s recommendation was in, it was obvious that – for the reasons explained above – there would be no going back, regardless of the desires and motivations of the individual actors involved. But taking a step back from the specific actors in this drama, it is important to locate the roots of the problem in the structure of our judicial appointments process. In this post, I have argued that the present structure is problematic both in principle, but also because it asymmetrically benefits the political executive. While L. Victoria Gowri’s case is a stark example of this asymmetry because – departing from the norm – her statements were plastered all over the public sphere, the problem does not begin or end with this appointment. What we need is an appointments process that genuinely safeguards judicial independence from executive dominance. The collegium (while a better option than pure executive control) is not it.

---

*I thank Sanya Samtani for explaining the South African cases to me.

The ConCast: Episode 6 (The Collegium)

In Episode 6 of the ConCast, I spoke to Suhrith Parthasarathy about judicial appointments and the Collegium.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

References:

Union Of India vs Sankal Chand Himatlal Sheth.

S.P. Gupta vs Union of India [“First Judges Case”].

Supreme Court Advocates-on-Record Association vs Union of India [“Second Judges Case”].

The 99th Amendment.

National Judicial Appointments Commission Act, 2014.

Supreme Court Advocates-on-Record Association vs Union of India [“Fourth Judges Case”].

The South African Judicial Services Commission.

Abhinav Chandrachud, Supreme Whispers.

Justice Kavanaugh and the Collegium: reflections on the increasing significance of judicial appointments

Justice Bret Kavanaugh’s confirmation hearings have certainly given us food for thought. The issues raised by the hearings have received some expert commentary, including Jack Balkin’s insightful post on ‘constitutional rot’ (here) and the series of posts on the Law and Political Economy blog (here). While certain aspects of the confirmation hearings were unique to the American political and constitutional experience, India too has a well-documented struggle with judicial appointments and recently underwent its own moment of introspection on a key judicial figure with the retirement of former Chief Justice Dipak Misra.

In this post I ask the question, why are the stakes for a seat on the constitutional court so high? The way constitutional courts are designed certainly provides an immediate set of answers. There are only nine judges on the United States supreme court and they enjoy lifetime appointments, allowing a single judge to impact the outcome of cases for several decades. However, even in India where the supreme court consists of thirty-one judges having limited terms, the court and government have struggled to see eye-to-eye on judicial appointments. The court has repeatedly struck down attempts to reform the ‘collegium’ system, where judges themselves decide who should be appointed to the supreme court. In return, the government has refused to confirm the appointment of certain appointments made by the ‘collegium’ to the supreme court. Just this week, the Chief Justice took up the issue of the government ‘selectively’ confirming judicial appointments (here). In this post, I argue that it is the conduct and role of the court that has raised the stakes of judicial appointments to boiling point.

The conduct of the court, intended to curtail governmental overreach, has come to include detailed matters of public policy. Further, the court has become a centre of political power, advancing political views on deeply divisive issues. This piece does not seek to make an argument against judicial review, nor does it advocate, in the words of Mark Tushnet, taking the constitution away from the courts. However, in a month of historic outcomes for the Indian supreme court, it advocates some circumspect on the high stature of the court.

The role of judicial review

Part III (Fundamental Rights) of the Indian constitution explicitly recognises that individuals can approach the court, and the court can strike down government action that is incompatible with the fundamental rights. By allowing a law to be struck down on the grounds that it is incompatible with a fundamental right, the constitution recognises that an individual’s political interest cannot be subsumed by the general interest. A person’s fundamental rights must therefore be given appropriate weight when measured against the interests of the community. Famously, in the words of Dworkin, rights act as “trumps” in certain situations. The powers of the court are not strictly limited to invalidating government action, the court can, for example, direct the government to take certain actions to ensure fundamental rights are upheld (by a writ of mandamus). However, in practice, the actions of the court far exceed this.

Take the recent example of the court’s involvement in the Coordinator of National Registration (NRC) in Assam. Article 11 of the constitution states that parliament will have the power to create laws for the “acquisition and termination of citizenship and all other matters relating to citizenship.” However, the court not only ‘supervised’ the procedure by which thousands of individuals were added and omitted to the list of potential citizens, but it also determined which documents could be used to make a claim to citizenship. After the draft NRC was published, the court required re-verification of ten percent of the names would be required, so that the court could be satisfied that the list was accurate. By dictating what documents could be used by an individual to prove they were a citizen (the evidentiary standard for citizenship), the court effectively determined when an individual is a citizen.

Even more worrying was that the court acted to the exclusion of other branches of the government. For example, the court noted,

 Having regard to the nature of the work that is involved in the process of upgrading the NRC, we direct the State Coordinator to submit a report to the Court. […] The above information will be laid before the Court by the State Coordinator without any consultation with any Authority whatsoever and without reverting to the State Government or any Authority in the Union Government.

As argued by the Attorney General, this exclusion of the governments hampers the task of the officers who must deal with the facts on the ground. The court also passed orders on when the draft had to be published, if the NRC officers were permitted to speak to the press, and whether they needed police protection. The Court’s excruciatingly detailed supervision was showcased when the state government argued that more time was required to complete the NRC because of local panchayat elections. The court noted,

we, however, permit the State Government to take the services of one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for the work connected with the Panchayat Elections.

The court’s conduct vis-à-vis the NRC is not a case of judicial review where an individual’s rights are aggrieved by state action. Determining how and when officers should be stationed is a distributive choice on how the nation’s resources are utilised. In close to a decade of hearing the case, the court has never once referred to either the fundamental rights at stake or even the government action that is the subject of judicial review. When the attorney general argued that certain aspects of the case were best left to the executive, the court cited executive inaction as a justification for court supervision. The NRC is not an isolated case, the court has laid down and monitored the India’s forest policy for over two decades in the (still ongoing) writ petition Godavarman v Union of India. While the pitfalls associated with the court assuming such a role are not the subject of this piece, it is evident that the conduct of the court is no longer limited to judicial review. It can compel even a government that is not seeking to undermine constitutional provisions to expend resources on certain goals that the court designates as important. The court is not merely a ‘check on governmental power’, but itself a powerful centre for policy on how the country should be run.

The court as a centre of politics  

The court has also used its power to advanced political ideas on deeply divisive issues. The most recent example of this is the court’s decision in the Sabarimala case, where the court struck down the restriction on menstruating women entering the Sabarimala temple. To understand the political significance of the judgement, it is necessary to appreciate the centrality of secularism to the Indian constitution, so a quick recap is called for.

Article 25(1) reads,

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Article 26 goes on to note that,

every religious denomination shall have the right […] to manage its own affairs in matters of religion 

This inherent tension in the constitution highlights both the disagreement that existed over the extent of State interference in religion and the requirement for continuity/ communal harmony, as well as the sharp contradictions that existed between the aspirational goals of the constitution and surrounding society. As Gary Jacobsohn notes, “So deep was religion’s penetration into Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard, grossly unjust, that […] State intervention in the spiritual domain could not be constitutionally foreclosed.” Yet it is precisely this deep penetration of religion that leads to an inherent tension between the aspirational social-reform goals of the constitution and the requirement for communal harmony. The drafters of the constitution, operating in the shadow of partition, were acutely aware of the essential role of religion in social life. Thus, while social reform through State action was necessary, the acknowledgement of religious autonomy and permitting “culturally inflected interests” to be represented were essential to the maintenance of democracy in India.  Thus, Indian secularism required a balance between socio-economic reform of religion and tolerance of the deeply engrained and pluralistic practices existing across the country.

This is precisely the tension that the Sabarimala judgement brought to the forefront, down to the opinions of the judges. When Justice Malhotra argues for the validity of the ban on women entering the temple, she does so on grounds of respect for religious pluralism, while Justice Chandrachud gives voice to the argument that State intervention in certain situations is warranted. Of course, the rub lies in when such intervention is warranted, and who can ask for such intervention.

The religious sphere is certainly open to interference by the constitutional promise of social reform, but as Jacobsohn notes, “the legitimacy of this undertaking is at least partially dependent on preserving political space for religious identity.” By taking up the case, the court reduced this political space to the respondent’s lawyers in the courtroom. By striking down the ban, the court has struck down the practice of a religious group on the grounds of social reform at the behest of individuals who are not members of that religious group. This certainly alters the subtle constitutional balance between the social-reform goals of the constitution and the promise of communal harmony. As we have seen, the place of religion in Indian society is deeply contested. Yet the court’s seemingly insulated position often obscures the fact that the court is a vigorous and powerful participant in this contestation.

Conclusion

Given everything set out above, it is clear why the political class might seek to entrench allies in the judiciary, and consequently why, the judicial appointment process becomes contentious. Unlike in the United States, where judges are appointed by the executive branch and confirmed by the legislature, in India we have the collegium system, whereby senior judges appoint junior members of the court. While perhaps less partisan that the American court, the Indian court is no less political. As Anuj Bhuwania notes, the court’s PIL jurisdiction grants “blanket powers to judges to act as per their ideological beliefs in order to help the poor and promote distributive justice.” One would be hard pressed to find a politician who argue that his role differed from this role of the courts, except for the politician, blanket powers remain a forlorn dream.

This post sought to highlight why a place on the court is important. It is important because the court has endowed itself with vast powers and these powers are used to implement the policy and to drive the politics of the court.

The role of the court in its present iteration raises the age-old problem of political legitimacy. The court is an unelected body. As Jeremy Waldron notes, it is far easier to explain to someone who holds a contrary political opinion that, “Everyone’s votes were counted, and your side got fewer votes” than it is to say, your principled argument lost 4-1 on the constitutional bench. Can one approach the thousands of protestors at Sabarimala with the majority opinion in hand and expect immediate acceptance? What we are truly concerned about is the court exercising its expansive powers without the legitimate authority to do so. The protests against Justice Kavanaugh no doubt in part stemmed from the fact that this one man would have the power to decide whether millions of women could abort unwanted pregnancies or not. To ask if such a system is desirable is to ask where the legitimate authority to govern us comes from. Is it the constitution, the democratic process, a learned judge, or some combination of them all? Until then, we should prepare ourselves for the next round of high stakes judge selection.

Debating the NJAC: The Second Judges Case, Judicial Appointments, and the Basic Structure: A Response – II (Guest Post)

(In his last essay, Vishwajith Sadananda argued that The Second Judges case did not hold judicial primacy in appointments to be part of the basic structure; and even if it did, following Nagaraj’s Case, a constitutional amendment can be struck down for violating the basic structure only if, in some way, it damages the very identity of the Constitution. This essay continues the argument.)

—

Judicial predominance in appointments to the judiciary was never part of India’s constitutional identity. The process was always meant to be participatory and consultative without any predominance of the judiciary. At the time of the drafting of the original Article 124, Dr. B.R. Ambedkar observed [Constituent Assembly Debates, Tuesday, the 24th May, 1949]-

“…The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto in the President or the Government of the day. I therefore, think that is also a dangerous proposition.”

As seen from the aforementioned paragraphs, merely because a system requiring “primacy” was introduced in 1993 by a judgment of the Court, it cannot be said that it has become a part of the constitutional identity thereby elevating the same to be part of the basic structure.

However, assuming, but not conceding, that the decision in the 2^nd Judges case held that primacy is part of the basic structure, applying the “identity” and “width” test [See M. Nagaraj at para 102], it cannot be said that Article 124A violates the basic structure.

Article 124A will have to be tested on the basis of how wide the power conferred by the Amendment is and whether the identity of the essential feature is destroyed. In other words, if the power provided for by the amendment is so wide that it destroys the identity of the overarching principle, the amendment is liable to be struck down. [See Pramati Educational and Cultural Trust (Registered) and Ors v. Union of India (2014) 8 SCC 1 at para 29]

Article 124A provides for the setting up of the NJAC comprising of 3 judges of the Supreme Court [the CJI, J1 and J2], 1 member of the executive [the law minister] and 2 eminent persons to be picked by a collegium comprising of the CJI, Prime Minister and Leader of Opposition (or the leader of the largest opposition party, as the case may be).

Without going into the NJAC Act, it can be seen that by mandating that 3 out of 6 members of the NJAC should be judges of the Supreme Court, predominance is still given to the voice of the judiciary in the matter of appointments.

Hence, as the principle of predominance or primacy of the voice of the judiciary is still maintained even after the Amendment, it cannot be said that the width of the power conferred by Article 124A destroys the identity of the overarching principle laid down in the 2^nd Judges case.

Lastly, it has been argued by the Petitioners that the presence of the law minister on the NJAC damages the independence of the judiciary.

While it is a sound argument to make that the executive should not have complete control over the appointments process, an argument that canvasses the complete exclusion of the executive cannot be countenanced. It was always the intention of the framers of the Constitution to have a more participatory appointments process by involving the executive in the appointment of judges. T. T. Krishnamachari, a member Constituent Assembly, highlighted the importance of the executive in the appointments process by stating:

“…At the same time, Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to create specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic”.

[Constituent Assembly Debates, Vol. VIII (27 May 1949) 389].

Dr. B.R. Ambedkar also echoed the same view during Constituent Assembly Debates, Tuesday on 24th May, 1949.

The aforesaid view of the Constituent Assembly eventually found its place in the Constitution in the form of Art. 124 which also explicitly recognized the participation of the executive in the appointment of judges within the constitutional framework.

It is also pertinent to note that the Court has also recognized the importance of the executive in the process of appointment of judges. The majority opinion of the Court 2^nd Judges case held [Page 688 para 439]:

“This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance and these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector.”

…

“There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultee, before the appointment is made.” [para 462]

Furthermore, Ahmadi J., in his dissenting opinion, also recognized the role of the executive in appointing judges. He observed:

“It must be remembered that in the process of selection of candidates for appointment to the superior judiciary of the country every effort must be made both by the executive wing as well as the judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases there is no reason why it should not be possible. The executive and the judiciary do not work at cross purposes, in fact their objective is common and, therefore, it would really be surprising if there is lack of understanding in a wide range of cases between them.” [para 292]

…

“But a distinction exists between the legal acumen of a lawyer and qualities which go to make a good judge. In relation to the first the Chief Justice of the State would be better suited to opine but in relation to the second the executive will certainly have a role to play. It is the blending of these two roles which brings out the full personality of the candidate” [para 303]

Punchi J., in his dissenting judgment also held:

“The two high effectual constitutional dignitaries, such as the Prime Minister of India aided by the Law Minister, if any, and the Chief Justice of India are expected to interact in a spirit of mutuality and accommodation, and not act at cross purposes.” [para 498]

…

“Thus on the question of primacy I conclude to say that the role of the Chief Justice of India in the matter of appointments to the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the wishes of the other.” [para 509]

It has to be borne in mind that Constitutional Courts, with powers of judicial review, are mainly counter majoritarian institutions and are often required to pass judgments that fail to conform to the popular will of the people. In India, the power of the Constitutional Courts has greatly increased with the rise of public interest litigations. These Courts have become powerful decision makers which affect the lives of many citizens. Therefore, it is in this additional backdrop that judicial appointments must be analyzed.

 Judicial appointments need to be examined through the prism of a democratic polity. A democratic system necessarily requires that institutions derive their legitimacy through the will of the people. Legitimacy, as a principle, is determined by how well an institution fits within the concept of a democratic society. In other words, institutions can be said to be legitimate only if they are accountable to the people they intend to govern.

 In this regard, it is not only actual legitimacy of the judiciary, but also perceived legitimacy that needs to be protected and advanced. In other words, in a democracy, adjudicatory institutions should also seem to be legitimate. As a consequence, the appointments process should also be legitimate and be, to some extent, accountable to the will of the people.

The law minister is appointed through a process that accounts for the will of the people and is subjected to periodic expression of that will through elections. Hence, the presence of the law minister in the NJAC provides a link to a democratic process and enables public engagement in the process of appointment of judges by allowing the scrutiny of a candidate by a democratically elected individual.

Furthermore, the presence of the law minister is in furtherance of the doctrine of separation of powers. The Court has repeatedly held that separation of powers is part of the basic structure of the Constitution. However, under our Constitution, the doctrine of separation of powers is understood in the context of providing checks and balances between the various organs of the State. The presence of the law minister on the NJAC, therefore, provides a check against the concentration of powers in relation to appointment of judges in the hands of only one wing of the State while at the same time not diluting the voice of the judiciary in the matter of appointments. This ensures a more holistic, participatory and democratic approach to judicial appointments.

Therefore, Article 124A is not liable to be struck down.

Debating the NJAC: The Second Judges Case, Judicial Appointments, and the Basic Structure – I

(Today, a Constitution Bench of the Supreme Court reserved judgment in the constitutional challenge to the 99th Amendment and the National Judicial Appointments Commission Act, bringing to an end protracted litigation lasting many months [“the NJAC case”]. The 99th Amendment and the NJAC Act seek to remove the old system of judicial appointments, whereby the three senior-most judges of the Supreme Court (“the Collegium”) decided upon appointments to the Supreme Court, with (what was effectively) a nominally consultative role played by the Executive. Through a new Article 124A of the Constitution, they seek to bring into existence a National Judicial Commission, comprising of six members (the three senior-most judges of the Supreme Court, two “eminent persons”, and the Law Minister), the functioning of which is – per a new Article 124C – is to be regulated by law (which is the NJAC Act). Under a new Article 124B, the NJAC will recommend appointments to the higher judiciary. Articles 124A, B and C form the backbone of the 99th Amendment, and have been impugned as violating the basic structure by destroying the independence of the judiciary, the separation of powers, and the rule of law. The Union has equally strenuously defended the 99th Amendment.

Over the course of this week, on this blog, we will be engaging in an extensive discussion over some of the key issues at stake. I will kick off by arguing that Article 124A, as it stands, violates the basic structure, and ought to be struck down).

—

The notorious collegium system of judicial appointments was brought into existence in Supreme Court Advocates-on-Record Association vs Union of India [“The Second Judges Case“], a judgment handed down by a nine-judge bench of the Supreme Court in 1993. During oral arguments in the ongoing NJAC case, the Attorney-General asked the Constitution Bench to refer the matter to an eleven-judge bench, so that the correctness of the Second Judges Case might be reconsidered. At that stage of hearing, the Court refused to do so (although, conceivably, it still might). Consequently, the present five-judge NJAC Bench is bound by the judgment of the nine-judge bench in the Second Judges Case. I will therefore bracket the questions of whether the Second Judges Case was correctly decided, and whether the collegium was a creation of “judicial fiat”. That controversy is relevant for answering the question of whether the present case ought to have been referred to an eleven judge bench, and would be relevant in the unlikely event that an eleven judge bench eventually considers it. For present purposes, it is undeniable that The Second Judges Case binds the present bench, and the key issue is therefore what exactly the Second Judges Case said.

The old Article 124 read as follows:

“(2) 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.”

Recall that in the Second Judges Case, the Court argued that if a “consultation” results in a deadlock, then one party has to have the decisive say. In the opinion of the Court, primacy in case of a deadlock would have to vest with the judiciary. To give effect to this, the Court read “consultation” in Article 124 to mean “concurrence“. Thus was the collegium born.

The Union’s argument is that the collegium came into being as a result of the Supreme Court’s interpretation of “consultation” to mean “concurrence” – a purely textual move. What the 99th Amendment does is to remove the basis of Second Judges Case by replacing the text of Article 124 altogether, by the new Article 124A (which sets up the NJAC). Now that the word “consultation” is gone, so has its interpretation in the Second Judges Case, and so also the collegium.

It is undeniable that Parliament has the power to take away the basis of a judicial decision by amending the law (or the Constitution) accordingly – a proposition upheld in Indira Gandhi vs Raj Narain. However, it is crucial to note that the Union’s argument is premised upon the assumption that the source of judicial primacy in appointments, per the Second Judges’ Case – was located exclusively in the text of what was then Article 124 – and even more specifically, in the single word “consultation”, which the Court read to mean “concurrence”. The Union’s argument would not hold if the Second Judges Case held – whether rightly or wrongly – that judicial primacy was actually a facet of the basic structure of the Constitution. In such a situation, a removal of judicial primacy through the new NJAC could not be justified simply by stating that the legislature, acting in its constituent capacity, had removed the textual basis of a prior decision.

So what did the Second Judges Case hold? Consider paragraph 72 of that case:

“It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials.”

As a number of cases have held – from Kesavananda Bharati onwards – judicial independence is part of the basic structure. Paragraph 72 (which forms the operative part of the judgment) makes it clear that, in the opinion of the Court in The Second Judges Case – there is a necessary connection between judicial independence, and judicial primacy in appointments. Now, since judicial independence is indisputably part of the basic structure, all necessary facets of maintaining judicial independence also form part of the basic structure. Ergo sacrificing judicial primacy in appointments (as the 99th Amendment does through the NJAC) violates the basic structure.

The Union argues that the 99^th Amendment simply changes the mode of appointment while preserving the basic feature of judicial independence. However, a closer look at the reasoning of The Second Judges Case will demonstrate that this argument is incorrect. In that case, the Court noted that ideally, the appointments process was meant to be participatory, consultative and collective, whereby the judiciary and the executive would come to a consensus about the merits of prospective appointee. However, given that there could arise situations where consensus was unachievable, it would be necessary to give one entity primacy, in order to break the deadlock. As the paragraph excerpted above shows, The Second Judges Case held that the primacy required to break the deadlock must lie with the judiciary, in order to preserve judicial independence.

This reasoning is crystallized in paragraphs 40 and 41 of the majority opinion:

 “It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts. 

The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.”

What these paragraphs demonstrate is that judicial primacy in The Second Judges Case did not only arise out of the wording of Article 124(2), but was a necessary implication of the cooperative scheme of appointments envisaged by the Constitution, which in turn was designed to secure the independence of the judiciary (which is part of the basic structure). It also indicates that, contra to the Union’s submissions, judicial primacy did not evolve as a specific response to a temporary situation, but was held to be part of the entire constitutional scheme of appointment. In a word, the basic feature of judicial independence was designed to be maintained through a consultative process, with the provision of judicial primacy to break situations of deadlock. Any amendment that removes judicial primacy in cases of a deadlock (as the 99^th Amendment does) must therefore be struck down, because it violates the basic structure.

Furthermore, the link between the “consultation” provision of Article 124 and the basic feature of judicial independence was drawn categorically by the Court elsewhere. In paragraph 36, it held:

   “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act.”

It is therefore incorrect for the Union to argue that by amending Article 124, it is simply taking away the basis of the Second Judges Case (something that it is entitled to do), because in formulating that basis, the Court itself relied upon the basic structure of the Constitution. And this ratio, as pointed out in the beginning, is binding upon the present Court.

As the Supreme Court has held on multiple occasions (see the Constitution Bench decisions in Islamic Academy of Education vs State of Karnataka, (2003) 6 SCC 697 and Punjab Land Development and Reclamation Corporation vs Deshmukh, (1990) 3 SCC 682, the ratio of a case is not only the final decision, but also the principle underlying it. The principle underlying The Second Judges Case is that judicial primacy as a mechanism in order to break the deadlock of an otherwise consultative process is essential to judicial independence, and therefore part of the basic structure.

It is important to stress, once again, that I am not here defending the collegium, or arguing that The Second Judges case was correctly decided, or – for that matter – defending the Constitution Bench’s decision not to refer the matter to an 11-judge bench at the arguments stage. The argument is merely that in the present scenario, we are bound by the nine-judge bench in The Second Judges Case. And if we are to go by what that case laid down, the Supreme Court must strike down Article 124A.

In the next part of this essay, I will argue that even if The Second Judges Case is ambiguous on this point, given Supreme Court decisions prior and subsequent to it, any ambiguity ought to be resolved in favour of the interpretation that I have advanced above.

(Disclosure: The writer has been professionally involved in the case, assisting one of the parties challenging the NJAC)