Some thoughts on the Judicial Appointments Commission

As Nick points out in his post, the proposed Judicial Appointments Commission (“JAC”) has generated a great deal of debate. In this post, I make two arguments: first, irrespective of its composition, the JAC will not be able to substantially affect the structural independence of the judges of the Supreme Court of India; instead, the JAC will be able to affect the independence of High Court judges; second, in the light of the court’s history, it is highly unlikely that the JAC will fundamentally alter the character of the typical candidate appointed to the Supreme Court of India:

1. Independence of the Judiciary:

To my mind, irrespective of the composition of the JAC, the JAC will most likely not be able to affect the structural independence of the Supreme Court. It must be remembered that when a judge is appointed to the Supreme Court of India, s/he holds office not during the “pleasure” of the government (or the JAC) but during “good behavior” – a doctrine which predates even the constitution [“good behavior” was finally introduced in India formally under the Government of India Act, 1935, though it was a formal principle in the UK since the Act of Settlement in 1701]. A Supreme Court judge in India can only be removed for “proved misbehaviour or incapacity” [Art. 124]. Even under the Indian High Courts Act, 1862 (i.e., even during the British Raj), a judge’s compensation could not be altered to his disadvantage after his appointment. Under the constitution [Art. 125], a Supreme Court judge’s privileges and allowances can’t be altered to the judge’s disadvantage after his appointment. In short, a Supreme Court judge has security of tenure and reasonable security of compensation: two of the most basic features of judicial independence.

However, there are two ways in which a government can potentially interfere with the independence of a Supreme Court judge: first, by superseding independent judges (e.g. what was done to Justices Shelat, Hegde, Grover, and Khanna); second, by not giving independent judges post-retirement jobs. The establishment of the JAC will not make a difference to either of these two mechanisms. The “seniority norm” is a deeply entrenched part of our constitutional history since independence, and given what happened during the Emergency, it is unlikely that our political culture will ever allow any government (or a JAC) to supersede an independent judge again. Post-retirement jobs are anyway controlled by the executive government at the moment, so the establishment of the JAC doesn't make the judges of the Supreme Court any worse off on this count.

One might argue that if the JAC has a majority of executive members on it, it may be able to appoint “committed” or pliant judges to the Supreme Court. While this is possible, it is also true that most of the judges appointed to the Supreme Court of India before the collegium system came into being, were staunchly independent of the executive. After all, judges like Vivian Bose, Subba Rao, Hidayatullah, Krishna Iyer, and even H.R. Khanna, were not appointed under the collegium system.

In short, the JAC will not be able to affect the independence of the judiciary at the Supreme Court level. Debates about the JAC, therefore, should focus on how its establishment will affect the independence of High Court judges. This is because the JAC will be able to decide whether a High Court judge gets “promoted” to the Supreme Court – as such, it will have the power to penalize or reward an independent High Court judge, though it will not be able to penalize or reward an independent Supreme Court judge.

2. Composition:

Will the JAC make a radical change to the type of candidate one sees on the Supreme Court of India? I’m skeptical that we will see a tremendous change in the background of the typical candidate appointed to the Supreme Court after the JAC. In my thesis at Stanford (a summary is available here), I found that there were three informal eligibility criteria used to appoint Supreme Court judges: age, seniority, and diversity.

The first criterion is that a judge should be of the age of 55 or above in order to be appointed to the Supreme Court – this is entirely a product of the collegium system, and it might change under the JAC. Even so, the youngest judge to be appointed to the Supreme Court of India was Justice Bhagwati, who was appointed, before the collegium system, not in his 30s like Joseph Story, but at the age of 51. Therefore, even if the JAC is set up, we are unlikely to see judges appointed to the Supreme Court in their 30s or 40s, though we may start seeing judges occasionally being appointed in their early 50s once again.

The second criterion is that only High Court Chief Justices (or, in exceptional cases, the most senior judges of High Courts) are eligible to be appointed to the Supreme Court. The emphasis on seniority has become stricter under the collegium’s watch. Earlier, far fewer Supreme Court judges were High Court Chief Justices, but now, an overwhelming majority of Supreme Court judges are High Court Chief Justices. However, it is highly unlikely that the JAC will abandon seniority altogether. Even before the collegium system, judges who were elevated to the Supreme Court were usually relatively senior judges on their High Courts. For example, Justice A.N. Grover, a puisne High Court judge who was appointed to the Supreme Court in 1968, was third in seniority in the Punjab High Court [Gadbois, Judges of the Supreme Court of India, p. 134]. It is therefore likely that the JAC will continue to use seniority as a criterion in appointing judges, though perhaps not as strictly as the collegium uses it at present.

The third criterion is that judges should reflect the regional (and demographic) diversity of India. This is a criterion which predates the collegium. Even before the collegium came into being, judges on the Supreme Court came from the different regions of India (a judge is said to belong to the High Court where s/he was first appointed, irrespective of place of birth, residence, or mother tongue). Despite the coming into being of the collegium system, diversity continued to be a criterion for judicial appointments to the Supreme Court. The establishment of the JAC will not obliterate this criterion, though priorities on diversity may change, i.e. religion, caste, and gender might rise in importance. For example, we may see more Muslim judges being appointed to the Supreme Court in the coming years (where only 2 out of 50 judges appointed to the court in the 2000s were Muslim judges). 

However, the JAC might be able to change a few incidental features of the court’s composition. If the JAC is set up, for example, we may see a “bar judge” being appointed to the court, on occasion. Since Justice Santosh Hegde retired in 2005, no lawyer has directly been appointed to the Supreme Court of India. Even before the collegium came into being, however, only 3 out of more than 100 Supreme Court judges were lawyers directly appointed to the Supreme Court. Thus, while it is highly unlikely that we will see a substantial number of lawyers being directly appointed to the Supreme Court bench as a result of the setting up of the JAC, we may perhaps see one lawyer (perhaps two) being directly appointed to the Supreme Court in this decade. Under the JAC, we might even see a bar judge become the Chief Justice of India by the seniority norm (Chief Justice Sikri is the only such judge so far), though this is quite unlikely after the Kuldip Singh-Ahmadi episode of the court’s history. Likewise, the JAC may decide to appoint a “distinguished jurist” to the court: a result which the collegium system seems unlikely to deliver.  

In short, even if the JAC comes into being, it is highly unlikely that we will see 10 full-time law professors, transactional lawyers, or even practicing lawyers at the Bar, in their 40s, being directly appointed to the Supreme Court. My guess is that the fundamental character of the composition of the court will remain the same.

Judicial Appointments

There has been a lot of news - and controversy - lately about the Constitution (99th amendment) Bill that would replace the current judicial collegium with a judicial appointments commission (JAC), which under the Judicial Appointments Commission Bill would consist of the Chief Justice of India, the two next most senior Supreme Court judges, the Law Minister, and two "eminent persons" appointed by a body that would consist of the Chief Justice, the Prime Minister, and the leader of the opposition.

There have been several pieces of commentary in the media critical of this framework. Madhav already pointed out MR Madhavan's piece in the Indian Express, was also this piece by Arun Mohan Sukumar in the Hindu, and see this piece on the Indian Journal of Law and Society blog by Vasujith Ram. I'm sure there are many others out there in newspapers and across cyber-space.

A few quick thoughts:

1. I think most commentators find the current collegium system less than ideal. There is a strong feeling that it's become too cloistered, too enmeshed in in-group judge politics, and not transparent enough. There have been concerns expressed that judges who should have been elevated to the Supreme Court were not and vice versa. There is heavy (although not complete) reliance on seniority norms for elevation of judges to the Court. As many have pointed out this is likely not the sign of a healthy system. If your argument for why you should be appointed to the Supreme Court and not someone else is your birthday than we are not really assessing what's most important about being a judge. Instead, the reliance on seniority signals that no one trusts anyone's capacity to assess quality and so better to have a seniority norm than allow favoritism. Now the collegium system and heavy reliance on seniority may be less than ideal, but that does not mean it's untenable or even that it's worse than the other available alternatives.
2. On its face the 99th amendment and JAC Bill seem like a pretty decent alternative. The judiciary would still have the predominant voice in choosing judges, but the government and term-limited appointed experts would also have a voice. This would arguably increase transparency and open up the famously enclosed world of the judges to a little bit more accountability. Most critiques though (understandably) center once again on trust. Under the 99th amendment Parliament would be able to change the composition of the JAC by passing another bill, which would not require another constitutional amendment. So although the composition of the JAC today tilts in favor of the judges it might not tomorrow. An activist government could potentially change the JAC however it wanted, perhaps using the pretext of an unpopular Supreme Court judgment.
3. How real you find this threat I think has to do with how entrenched you feel constitutional morality is in India (to borrow from Vasujith Ram's piece quoting Ambedkar). If you do not believe Parliament will respect the separation of powers going forward or that the public would act as a check on an over-zealous government than you are clearly worried and think either the entire JAC is a bad idea (better for appointment of judges to remain with unelected judges) or that the composition of the JAC should be entrenched in the Constitution. There is also a personal value judgment - how insulated do you believe institutions should be from the people and their representatives. (On a side note, I do think it's odd that the JAC is currently conceived of as 6 members. The opportunity to have a tie on a vote concerning the appointment of a potential judge is likely asking for trouble).
4. The 99th amendment and the JAC bill spell out a lot about the potential future of judicial appointments in India, but even if both are adopted many questions are still left unanswered. The JAC bill states that the JAC will have the power to spell out the rules by which it operates. It's unclear if there will be the opportunity for public hearings or feedback during the appointment process, whether shortlists will be made public, or what process perspective judges will go through - interviews, hearings, etc. As far as I know there also has not been any proposal about what the JAC's budget should be. One of the primary problems the collegium currently faces is being able to collect reliable information about all the potential nominees for a judgeship. The judges certainly don't have time to do it themselves. There needs to be considerable infrastructure and staff in place to aid any JAC in sorting through fact and fiction about potential judges and assessing their record.

The challenge of judicial accountability is often conceptualized as one of who will guard the guardians. If the Court is suppose to check the abuses of the government, who will check the abuses of the Court. If an organization is set up to check the abuses of the Court who will then check that organization. It's often portrayed as an endless game of Russian dolls. This seems clearly an incorrect way to theorize the problem. First of all, an institution like the JAC that draws members from a diverse set of constituencies is in turn held accountable by the diverse interests of these constituencies. Second, the obvious answer to who guards the guardians is the people. The more active, engaged, and public minded a citizenry and the more ways they have to exert their power in a constructive way the less one has to worry about the abuse or potential abuse of any one institution.