Vice-President Jagdeep Dhankhar’s views on the role of the judiciary have generated a lively debate in our argumentative democracy. He raised two issues: the basic features doctrine enunciated by the Supreme Court, essentially limiting Parliament’s power to amend the Constitution; and the decisive say for the Supreme Court collegium in the appointment of judges of high courts and the Supreme Court. I will defer the discussion on basic features to a later column; let us examine the appointments to higher courts now.
Our public discourse is often based on our current favourites in politics, an ad hoc approach to vital issues. We tend to view our problems and emerging challenges in making our democracy work in isolation. It would be more productive if our debates were linked to first principles of democracy. We also tend to think of ourselves as the only democracy on earth, ignoring the institutions, experience and practices of other successful democracies.
Let us examine first principles. Democracy is a system of government by the whole population or all eligible members of a state, typically through elected representatives. It does not mean tyranny of elected governments; we do need checks and balances to protect citizens’ liberties and insulate vital long-term decisions from the vagaries of populist impulses or partisan politics. Therefore rule of law applicable equally to all, transparency and independent, effective, accountable institutions like the courts, Election Commission, CAG, Finance Commission and Reserve Bank are necessary to run a sound democracy.
However, all democratic institutions should trace their legitimacy either directly from the people or indirectly from those elected to legislate and govern. A constitutional or statutory authority should function independently; but it should derive its legitimacy from appointment by a democratically elected body and accountability to the legislature or another legitimately appointed body. A democratic institution, in the garb of independent functioning, cannot usurp the power to appoint itself.
Let us now look at how other mature democracies appoint the higher judiciary. The experience of the U.S., the U.K., Canada, France and Germany would be a useful guide. We can also examine the practices in emerging democracies like South Africa.
In the U.S., appointments to the Supreme Court, the thirteen Courts of Appeal and the 94 district courts are all made by the President with the consent of the Senate, the elected upper chamber of the federal legislature. Public hearings and a transparent voting process in the Senate are integral parts of federal judicial appointments. Similarly, the courts of last resort in the 50 states (State Supreme Courts) are appointed either by election or by the State Governor or the legislature, most often with the help of a commission. In 21 of the 50 states these judges are elected by the people. In 23 states they are appointed by the governors with the help of a nominating commission. These commissions vary in composition and role, but most are non-partisan, composed of lawyers and non-lawyers, appointed by a combination of public and private officials. For instance, the New York State Commission on Judicial Nominations has 12 members, four each appointed by the Governor, the Chief Judge of the Court of Appeals, and the Legislature. There are rules to ensure that the Commission members are drawn from across the political spectrum. The Commission submits a list of nominees to the Governor, and the Governor appoints a judge from the list. The appointee must be confirmed by the state Senate.
The Judicial Appointments Commission of England and Wales has 15 members – six lay members, one of whom chairs it, five judicial members, and four lawyers or others. The chair is appointed by a panel of Cabinet ministers; other lay members are appointed by a panel of the chairperson, a person nominated by the Government, and the Chief Justice. The Commission will identify and submit to the Justice Minister the recommendations for appointment. The minister can reject a name or ask for it to be reconsidered. A rejected name cannot be considered again, and a person reiterated upon reconsideration has to be appointed.
In Canada, judges of the Supreme Court are selected by the Prime Minister in consultation with the Justice Minister. For Federal Court appointments, there is a Judicial Advisory Committee of seven members comprising three lawyers, a judge and three lay persons. All seven members are appointed by the Justice Minister, three directly and four from lists of nominees. The recommendations of the Committee are not binding, but by convention only those recommended are appointed. A similar procedure is followed in respect of appointments at the provincial level.
In France there is a 12-member constitutional body, or Council, comprising the President, Justice Minister, three prominent citizens nominated by the President, and six judges and a prosecutor elected by their colleagues. The Council selects candidates and submits recommendations to the President, who by tradition always appoints a judge proposed by the Council.
In Germany, the Federal Constitutional Court’s judges are elected by both Houses of Parliament. Other federal judges are selected by a committee comprising the Federal Justice Minister and 32 members — 16 state justice ministers and 16 members nominated by the federal Parliament. The recommendations of the committee are binding.
In South Africa, a Commission of 23 members, comprising three judges, five lawyers, six members of Parliament, four from the provinces by voting, four nominees of the President, and the Justice Minister, presents a list for the Supreme Court; the President may appoint anyone on the list and can reject the list once. In case of the Chief Justice and Deputy Chief Justice, the President can ignore the recommendations. All other judges in other courts must be appointed on the Commission’s advice.
Both the democratic principle and the practice in all functioning democracies clearly establish that the Supreme Court cannot usurp judicial appointments.
At the request of the Foundation for Democratic Reforms, three eminent jurists – Justices MN Venkatachalaiah (former CJI), JS Verma (former CJI who wrote the judgment creating the collegium system), and VR Krishna Iyer – examined the issue and recommended the NJAC with the Vice-President, Prime Minister or his nominee, and CJI and two most senior puisne judges. The NJAC Act provided for the Prime Minister, three judges and two eminent persons chosen by the Prime Minister, the CJI and the Leader of the Opposition.
Denying democratic legitimacy to the higher judiciary is wrong. However, we need harmony. Given the revulsion of politics and mistrust of governments widely prevalent in our society, the collegium system, however undemocratic, will stand for now. But it will erode the court’s credibility in the long run. Until constitutionalism prevails, we will have to live with the collegium. We have practised it for three decades; another decade or two will not matter. But a healthy debate must go on and all organs of state should learn to act with restraint and mutual respect. Or else, people’s mistrust of democracy and our justice system may deepen, undermining liberty and self-governance.
The author is the founder of the Lok Satta movement and Foundation for Democratic Reforms. He can be contacted at firstname.lastname@example.org/Twitter @jp_loksatta
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