How to choose a judge?

Gopal Subramanium could not be appointed to the Supreme Court despite being one of India’s foremost lawyers. The controversy over his non-appointment is a useful backdrop to examine the working of the current system of judicial appointments.

A collegium of senior judges recommends candidates for appointment and the government appoints them on such recommendation. If the government does not like a recommendation, it can seek reconsideration but is bound by the result after such reconsideration.

Though not envisaged by the letter of the Constitution, the collegium, with its ever-changing membership, has for the past two decades conceived every appointment of a judge of the High Court and the Supreme Court.

The executive that makes the appointment, on the recommendation of the court, is an equal participant in delivering to the nation a new judge of the High Court or Supreme Court. The judiciary is not an autoregenerative organ existing outside the body of the government. It is a vital organ within that body.

In no other democratic country is the decision on selection of judges left to the judiciary itself. Since 1993, when Justice J S Verma reinterpreted the constitutional requirement of consultation with the judiciary, to mean not only its concurrence but its prior consent, senior judges have taken upon themselves the task of choosing their colleagues and successors.

A series of Parliaments with governments lacking absolute majorities, could only grudgingly acquiesce in an unelected elite being in charge of its own selection.

The UPA, in 2013, did introduce in the Rajya Sabha a Constitution amendment bill to bring about a Judicial Appointments Commission.  The current government, with its brute majority in the Lok Sabha, might very well consider passing it into law.

At present, if the elected government of the day is not minded to accept the recommendation for appointment of a particular person, there is no realistic chance that he can become a judge in the face of such disapproval.

The government, as the biggest litigant, has as much a right to impartial treatment as any other user of the system.

If a government fears even unconscious bias, it must have the right to express its apprehensions to those that made the recommendation. However, what it does not have is the right to undermine the individual and the institution, by a process of deliberate leaking to the press, salacious gossip, undigested rumours, all disguised as intelligence reports, marking disfavoured candidates as unsuitable.

Can such reports render unacceptable a recommendation made by five of the country's senior most judges? Can agencies in effect have a veto over judicial appointments and is such a practise desirable?

One way around this would be for the court to seek a vetting by the agencies prior to even before considering a candidate for recommendation.

Secondly, if the consultative process was broad-based, including executive participation at the ministry level and before the recommendation was arrived at by the judiciary, questions of who would have primacy would be avoided.

Cherry picking

The current controversy is not so much as to why one of the candidates was unacceptable to the executive. The issue is how that determination was conveyed to the judiciary.

It seemed to be a unilateral edict, untrammelled by constitutional nicety. A single recommendation of the collegium containing four names was severed into acceptable and unacceptable portions, without reference to the judiciary.

The government seemed to resort to cherry picking, when it was required to approve the basket as a whole or require a fresh basket, if some contents were not found suitable.

The Chief Justice of India has rightly taken exception to the government reframing the judiciary’s recommendation. The recommendation for the appointment of a high constitutional functionary is not to be summarily discarded.

Reservations to the proposal, if any, are to be conveyed respectfully, with a request to review the entire recommendation as a whole. The judiciary is then free to reiterate its recommendation or modify it. The recommendation job belongs to the judiciary alone, and none else can perform that function.

In their judicial avatars, men have judged directly, contrary to the causes they were briefed to represent.

Many prosecutors, when appointed judges, have turned out to be acquittal minded, lawyers espousing property rights have upheld land acquisitions and men with long careers as government pleaders have, on the bench, proved to be very good at demonstrating government’s chicanery from official files.

Conversely, appointments seen as partisan have often turned around and chastised the very hands that propelled them to high constitutional office.

To give two non-judical examples, T N Seshan, appointed by the Narasimha Rao government, proved to be an outstanding chief election commissioner; Vinod Rai appointed by the Manmohan Singh government as the Comptroller and Auditor General, was the root cause for exposing corruption of the same government.

Coming to judiciary, Justice Santosh Hegde was appointed by the NDA government to the Supreme Court. In his days as a lawyer he had represented party veteran L K Advani during his detention in Bangalore during the emergency.

When appointed as Lokayukta of Karnataka, his report on mining made no concessions to the BJP government of the day, and was instrumental in its fall.

To my mind, the correct question for any government while appointing a judge to ask is, “was he a good lawyer?” and not “whose lawyer was he”. The NDA government simply asked the wrong questions and ended up with the wrong answers.

Processes are put in place by usage, convention and norms of business to ensure that boundaries established by the doctrine of separation of powers are not breached.

The court must use the opportunity to broad base the collegium and involve the executive at the recommendation stage itself.

The issue is not whose candidate gets through, but that the one available and found most suitable by all concerned is recommended and appointed without further delay and discord.

As for Gopal Subramanium, he will probably be the best Supreme Court judge that India did not have.

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