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Appointments, Independence and Accountability of higher Judiciary in India (Review)

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Arghya Sengupta and Ritwika Sharma. 2018.
Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence
New Delhi: Oxford University Press
ISBN 978019485079

The Indian Supreme Court Today
It has been two years since the historic press conference was held on the 12 January 2018 in New Delhi, where four senior-most judges of the Supreme Court – Justices Kurien Joseph, Jasti Chelameswar, Madan B. Lokur and Ranjan Gogoi – held that the allocation of cases by then Chief Justice of India, Dipak Mishra, was being done in a manner to influence the outcome of cases and that Memorandum of Procedure for appointment of judges, which had been finalized by the Court, had been delayed because of governmental inaction.[i] Other than Ranjan Gogoi, who is now the Chief Justice of India, the rest have retired. The roster itself was made public, but was decided exclusively by the Chief Justice of India without consultation with the five senior-most judges, as was demanded by the four judges. Earlier in March 2018, we saw Justice Chelameswar write to Chief Justice Misra expressing concern over what he understood to be interference in judicial functioning.[ii] This was with respect to Chief Justice of Karnataka initiating an inquiry against a subordinate judge, whose elevation had been confirmed by the Collegium, on a complaint directly forwarded by the Union Law Ministry. Then in April 2018, we witnessed Congress’s attempt at moving an impeachment motion against Chief Justice Misra in the Rajya Sabha, followed by a petition in the Supreme Court, after the motion was rejected by the Rajya Sabha Chairman Venkaiah Naidu.[iii] Thereafter, in August 2018, Justice K. M. Joseph’s elevation was opposed by the government citing seniority and Kerala’s adequate representation in the Supreme Court. He was eventually elevated to the Supreme Court, but was placed lowest in a list of three judges, losing seniority to two judges.[iv] Meanwhile, Chief Justice Misra retired on the 2 October 2018; the Indian Supreme Court, however, continues to be in the eye of the storm under Chief Justice Gogoi. The question of appointment re-surfaced in January 2019, with the non-elevation of Justices Pradeep Nandrajog and Rajendra Menon; both had been recommended by the Collegium that also had Justice Madan B. Lokur as a member.[v] This time, Justice Lokur, in January 2019, publicly held that he was disappointed over not bringing to public domain the decision of the Collegium on the elevation of the respective judges even as he affirmed his faith in the Collegium system.[vi] Then came charges of sexual harassment against Chief Justice Gogoi by a former Supreme Court employee; the constitution and presiding over of an in-house committee by the Chief Justice of India  himself to investigate the allegation of unwanted physical contact, but not of victimization, which the complainant had also alleged; the proceedings of the internal committee where the staffer was not allowed legal representation and, finally; the report of the internal committee that found no substance in the complaint made by the staffer, the copy of which was denied to the complainant and is, also, not available in public records.[vii] In May 2019, we heard statements made by retired Justices Lokur and Chelameswar saying that the complainant was treated unfairly by Chief Justice Gogoi.[viii] Meanwhile, earlier in May 2019, at another book launch by Arghya Sengupta, Independence and Accountability of the Higher Judiciary (Cambridge: Cambridge University Press), Justice Kurian Joseph had maintained that he had begun to regret the National Judicial Appointments Commission judgment since the suggestions made for improving the Collegium had not been implemented.[ix]

Judicial Primacy, Independence and Appointments in the Supreme Court of India
Given this ongoing upheaval in the Indian Supreme Court over questions of its independence and accountability, Arghya Sengupta and Ritwika Sharma’s book, The Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence, could not have been timelier. The principle focus of the book is the Supreme Court Advocates-on-Record Association and other v. Union of India and others (NJAC Case) that concerned a challenge to the Constitution (99th Amendment) Act, 2014, which established the National Judicial Appointments Commission. The case also challenged the National Judicial Appointments Commission Act, 2014, which contained the procedure to be followed by the National Judicial Appointments Commission in recommending appointments to the President of India. Before it was struck down by 4:1 majority, the National Judicial Appointments Commission was supposed to be a significant judicial reform of the new National Democratic Alliance government that had come to power in 2014. The majority – Justices J. S. Khekar, M. B. Lokur, K. Joseph, A. K. Goel – relied on the Second Judges’ Case, which established the Collegium, to contend that the independence of judiciary is part of the basic structure of the Constitution, which is preserved through ‘the primacy of the judiciary in the matter of selection and appointment of judges, to the Higher Judiciary’ (p. 31). This would have been compromised, the judgment held, in the proposed National Judicial Appointments Commission, which stipulated a 6-member Commission comprising of the Chief Justice of India, two senior-most judges of the Supreme Court, The Union Law Minister and two prominent civil society members. The short articles in the book explore the political developments in the country that propelled the relationship between the judiciary and the executive in the direction of mistrust, particularly so in the context of emergency imposed in 1975; the reasoning employed by the judges in the National Judicial Appointments Commission case to make their respective arguments; and laying out a comparative field of analysis about judicial appointments in some countries and what India might learn from them.

In his succinct essay, Pratap Bhanu Mehta contends that the relationship between the Indian judiciary and legislature has not developed along first principles, but has taken the form of a political turf-war in which the judiciary was able to establish its credibility over the executive post-emergency (p. 59). So, whether it was an expanded jurisdiction through Public Interest Litigations or giving itself supremacy over appointments, both of which developed with constitutional interpretation, the acceptance followed because of a decline in the credibility of the executive and its interference in judicial functioning (pp. 60-3). Today, the consensus on an independent judiciary remains, even as it is mired, Mehta argues, in ‘platitudes’ and is not amenable to a settlement through a ‘recourse to constitutional text, philosophical principle, or legitimacy of a process’ (p. 56), but there has been a decline in the credibility of the judiciary, to which the formation of the National Judicial Appointments Commission, ostensibly ensuring accountability, was supposed to be a solution. Only a good faith negotiation, premised on a dialogic co-production of the Constitution, which addresses the reasonable concerns of both the judiciary and the legislature can possibly be an answer to the stalemate (p. 57, emphasis in the original).

Staying with questions of politics and principles, in the essays deliberating reasoning employed in the case, we get a good sense of how judicial anxiety about executive encroachment impinges on interpretation of principles. While explicating the position of individual judges in detail, the questions that these essays tackle are whether judicial primacy and compulsory consultation with the Chief Justice of India are constitutive of judicial independence, which is part of the basic structure of the Constitution. The dissenting judge, Justice Chelameswar, held that neither judicial primacy nor the Collegium, but ‘a checks and balances scheme with non-investiture of power to appoint in the President is’ part of the basic structure. Justices Khekar and Goel held that judicial primacy was an essential component of judicial independence; Justice Lokur contended that since National Judicial Appointments Commission did not provide for mandatory consultation with the Chief Justice of India, it was against the intention of the provision of Article 124 and 127, while disagreeing on the point of judicial primacy being part of the basic structure and Justice Joseph argued that diluting the role of the judiciary impairs checks and balances, thereby violating the basic structure. In their co-authored essay, Raju Ramachandran and M. V. K. Thallam argue that the National Judicial Appointments Commission case provides the first instance of ‘liberalising’ the basic structure doctrine by bringing equivalence between judicial independence and primacy of the judiciary in the appointment process, thereby creating a theory of ‘derived basic structure’ (p. 118). This, they argue, will have implications for future challenges to constitutional amendments because the judgment undermines the ‘overarching principle test’ by reading a component (judicial primacy) as essence of basic structure (pp. 113-14). Although the judgment, Ramachandran and Thallam contend, acknowledges the flaws of the Collegium system, by not explicating how judicial accountability might be assessed from the decisions of the Collegium as part of a robust system of checks and balances, also a part of the basic structure, it ended giving one principle precedence over the other, which is ‘normatively indefensible (p. 119). In a similar vein, Araghya Sengupta argues that adopting a ‘low standard of proof to judge constitutional amendments’, where the basic structure being affected can be construed as it being destroyed, in the light of the extraordinary nature of the power of judicial review, means that the Court might be veritably incapable of assessing such a balance (pp. 161-2). Gautam Bhatia’s essay contends that the burden that the judges had to take on in their discussion of the Second Judges’ Case, that led to the establishment of the Collegium, was why, if at all, judicial primacy was the only way of ensuring judicial independence or if there were other way in which the 99th Amendment violated the basic structure. This is because, the Second Judges’ Case, Bhatia holds, itself is ambiguous on the point of linking judicial independence with judicial primacy (p. 137). He shows through a reading of the Second Judges’ Case that the ‘primacy of the Chief Justice is necessitated by the constitutional scheme, in cases of deadlock or stalemate between the executive and the judiciary (p. 137, emphasis in the original). Taking on judicial reasoning, Chintan Chandrachud critiques the selective interpretation from comparative law, which he demonstrates from Justice Khekar holding that the appointment of judges in the United Kingdom have become increasingly judicialized through reforms. The question that needed explanation was how the Constitutional Reforms Act 2005 in the UK, which aspired for greater transparency in appointments, addressed the lack of diversity in the UK judiciary, a point also raised about Indian judiciary in Madhavi Divan’s essay, included lay persons in the selection commission, and was premised on strengthening separation of powers between state organs, unintentionally judicialized the process. Gopal Subramanium comes back to the political in his essay and argues for judicial autonomy in matter of appointments given the endemicity of executive intervention in India as exemplified in the Sankalchand Himatlal Sheth case. The question for him is not whether judicial independence can only be insured through judicial primacy, but that the executive both has interest and can derive benefit from appointments. Interference, he contends, is easier in appointments that are anyway subject to ‘discretions and subjectivity’. The criticism of the Collegium notwithstanding, he is convinced that given the political – 'thriving on a fractured’ or, worse, an ‘absolutist mandate’ – it is only through judicial primacy that the independence of the judiciary be maintained in India. And, yet, the questions of judicial accountability and conduct of judges remain![x]

With 21 succinct essays on legal reasoning, Sengupta and Sharma’s book is a marvelous read and should be used in courses on legal methods and argumentation.

[i] Master and the roster, The Indian Express, 15 January 2018, https://indianexpress.com/article/opinion/columns/supreme-court-judiciary-chief-justice-jasti-chelameswar-master-and-the-roster-5024588/, accessed 7 March 2019.
[ii] Sruthisagar Yamunan, From impeachment motion to internal rift, 2018 was a year of tumult for India’s judiciary, Scroll, 31 December 2018, https://scroll.in/article/906437/explainer-from-impeachment-motion-to-internal-rift-2018-was-a-year-of-tumult-for-indias-judiciary, accessed on 15 January 2019.
[iii] Ibid.
[iv] Ibid.
[v] Ibid.
[vi] Disappointed that collegium resolution was not put in public domain: Justice Lokur, Business Standard, 23 January 2019, https://www.business-standard.com/article/news-ians/disappointed-that-collegium-resolution-was-not-put-in-public-domain-justice-lokur-119012301208_1.html, accessed on 30 March 2019.
[vii] Ajoy Ashirwad Mahaprashasta, Former Supreme Court employee alleges sexual harassment by Chief Justice Gogoi, The Wire, 22 April 2019, https://thewire.in/women/former-supreme-court-employee-alleges-sexual-harassment-by-chief-justice-gogoi, accessed on 23 April 2019; Complainant against CJI withdraws from inquiry panel, citing lack of sensitivity, The Wire, 1 May 2019, https://thewire.in/law/cji-ranjan-gogoi-allegations-complainant-inquiry-committee, accessed on 2 May 2019; 'Scared, dejected', says ex-staffer after panel finds 'no substance' in complaint against CJI, The Wire, 6 May 2019, https://thewire.in/law/in-house-committee-cji-gogoi-no-substance, accessed on 7 May 2019; Shruti Rajagopalan, Justice is dead, long live the justices, The Wire, 6 May 2019, https://thewire.in/law/supreme-court-cji-allegations-justice, accessed on 7 May 2019; Why is nobody allowed to question the inquiry into allegations against CJI Gogoi?, The Wire, 8 May 2019, https://thewire.in/law/supreme-court-cji-gogoi-sexual-harassment-women, accessed on 9 May 2019.
[viii] Madan B. Lokur, A one-sided justice, The Indian Express, 22 May 2019, https://indianexpress.com/article/opinion/columns/justice-ranjan-gogoi-sexual-harrassment-case-clean-chit-supreme-court-5741244/, accessed on 22 May 2019; Aneesha Bedi, Justice Chelameswar says due process not followed in CJI Gogoi sexual harassment case, The Print, 22 May 2019, https://theprint.in/india/governance/judiciary/justice-chelameswar-says-due-process-not-followed-in-cji-gogoi-sexual-harassment-case/238867/, accessed on 23 May 2019.
[ix] Ritika Jain, Ex-SC judge Kurian Joseph regrets striking down NJAC, says judges’ honour needs protection, The Print, 9 May 2019, https://theprint.in/india/ex-sc-judge-kurian-joseph-regrets-striking-down-njac-says-judges-honour-needs-protection/233533/, accessed on 11 May 2019. 
[x] R. Balaji, CJI Ranjan Gogoi sexual harassment ‘plot’ claim needs probe, The Telegraph Insia, 2 June 2019, https://www.telegraphindia.com/india/cji-ranjan-gogoi-sexual-harassment-plot-claim-needs-probe/cid/1691710, accessed on 4 June 2019. 

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