The outgoing Chief Justice of India S.A. Bobde’s disappointment with his inability to evolve a consensus within the five-member Supreme Court collegium – over potential appointees to the court – is valid.
The collegium meeting called by him on April 8 again proved to be inconclusive, without any hope of another meeting taking place before he demits office on April 23. But his inability stems not from his failure to follow the so-called convention of not holding a collegium meeting once the President appoints a successor CJI. The current stalemate within the collegium has more to do with the absence of transparency which has marked its functioning through the years.
Convention: A red herring
With just 10 days before his retirement, CJI Bobde may well be asking himself whether he should let the next collegium take the call on evolving consensus, or risk inviting further criticism from the media for going against so-called convention, by calling another collegium meeting before he retires on April 23.
The first question to be answered is whether there is indeed a convention of not holding a collegium meeting during the interregnum from the date of appointment of the next CJI to the date of retirement of the outgoing CJI.
Every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases. But a long series of precedents – all pointing in the same direction – is a very good evidence of a convention, notes W. Ivor Jennings in The Law and the Constitution.
The requirements for establishing the existence of a convention have been succinctly laid down by Jennings:
“We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it”.
In Supreme Court Advocates-on-record Association and others v Union of India (1994) (known as the Second Judges case), Justice Kuldip Singh, in his judgment, elaborately considered the role of constitutional convention. In Para 340, he observed: “Conventions are vital insofar as they fill up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional framework. Whatever the nature of the Constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion”.
In Para 351, he held: “The existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent then there is no justification to deny such a convention the status of law.”
According to Jennings, conventions provide the flesh which clothe the dry bones of the law: they make the legal constitution work; they keep it in touch with the growth of ideas. The primary role of conventions is to regulate the exercise of discretion –presumably to guard against the irresponsible abuse of powers.
Contrary to what media reports suggested, precedents do not point to the existence of a convention that the outgoing CJI desists from calling the meetings of the collegium once the President names his successor. On September 13, 2018, the President, Ram Nath Kovind had named Ranjan Gogoi as the next CJI to be sworn-in after the then CJI, Dipak Misra, retired on October 2, 2018.
On September 25, 2018, the three-member Supreme Court collegium comprising then outgoing CJI, Dipak Misra, then CJI-designate, Ranjan Gogoi and Justice Madan B. Lokur met and passed three resolutions.
In the first, the collegium endorsed the decision of the collegium of the Calcutta high court to not recommend the name of Justice Amitabha Chatterjee, Additional Judge, for confirmation as Permanent Judge. The second resolution pertained to the proposal for appointment of Hamarsan Singh Thangkhiew, advocate, as judge of the Meghalaya high court. The collegium found him suitable for appointment as judge of the high court and recommended him for appointment. In the third resolution, the collegium considered the proposal for appointment of 33 advocates as judges of the Allahabad high court. The collegium found 17 of them suitable for appointment and deferred the consideration of the remaining names.
More importantly, the collegium did not find any prima facie substance in the complaints received against some of the recommendees, and decided to ignore them.
Curiously, unlike the controversy surrounding the April 8 collegium meeting called by the current outgoing CJI, Bobde, the September 25, 2018 collegium meeting passed off without a similar concern expressed in the public domain about CJI Misra going against convention.
There is nothing to suggest that the actors in this precedent believed that they were bound by the rule that collegium meetings are not held once the President names the successor CJI and till the successor is sworn-in. While there could have been a good number of precedents to suggest that the outgoing CJI did not hold collegium meetings after his successor was named by the President, it is difficult to articulate a good reason to establish it as a rule.
One possible reason for this convention is that new members added to the collegium – as a result of the retirement of the outgoing CJI – must have a say in the appointment of new judges, so that the opinion of the new CJI reflects the collective view of all the members. But this misses the point that the arbitrary cut-off date of the President announcing the name of the successor CJI is considered sacrosanct for this purpose, although it defies any logic.
If the meeting is held a day prior to the President announcing the name of the successor CJI, the result could still invite similar criticism that any resolution, if adopted, should have to be endorsed by the next collegium. If a CJI has a very short tenure of just about two months – as Justice U.U. Lalit is likely to, after CJI-designate Ramana retires on August 26 next year – this ‘convention’ would make little sense.
As long the CJI-designate is part of the outgoing collegium, there is little merit in the criticism that the outgoing CJI ignored convention by calling a collegium meeting during the last days in his office.
In Paragraph 15 of the Third Judges case, the nine-judge bench of the Supreme Court observed:
“Ordinarily, one of the four senior most puisne Judge of the Supreme Court would succeed the CJI, but if the situation should be such that the successor CJ is not one of the four senior most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection.”
If the bench in the Third Judges case wanted to deprive the outgoing CJI from holding collegium meetings during his last days in office, nothing prevented it from saying so; instead, the bench emphasised why it is crucial that the CJI-designate should be part of the collegium.
But there is one flaw in the reasoning of the bench in the Third judges case. If it found logic in the inclusion of the CJI-designate and in the expansion of the collegium beyond five, similar logic will require the inclusion of potential CJI successors in the collegium, as the judges to be appointed will function during their terms also, and therefore, they too should have a hand in their selection.
The elusive consensus
In the Second Judges case, the majority judges of the constitution bench of the Supreme Court addressed the issue of a stalemate within the collegium thus:
“The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate…”
“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 CJI who…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”.
“The primacy must, therefore, lie in the final opinion of the CJI, unless for very good reasons known to the executive and disclosed to the CJI, that appointment is not considered to be suitable.”
Relying on the majority judgment in the Second Judges case, the bench in the Third Judges case held that if the final opinion of the CJI is contrary to the opinion of the senior judges consulted by the CJI and the senior judges are of the view that the recommended is unsuitable for stated reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the CJI would be permissible.
The bench then added: “We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the CJI would not press for such appointment”.
If the collegium is asked by the government to reconsider a recommendation, the collegium has to unanimously reiterate it, in order to make it binding on the government. “Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation,” the bench held in the Third Judges case.
The CJI also has to ascertain the views of the senior-most Supreme Court judges who hail from the high courts from where the persons to be recommended come, in writing. These must be conveyed by the CJI to the Government of India along with the recommendation.
The senior-most judge in the Supreme Court from the high court from which a prospective candidate comes would ordinarily know his merits and demerits, but if per chance he does not, the next senior-most judge in the Supreme Court from that high court should be consulted and his views obtained in writing.
The objective being to procure the best information that can be obtained about a prospective appointee, it is of no consequence that a judge in the Supreme Court from the prospective appointee’s high court had been transferred to that high court either as a puisne judge or as its chief justice. The CJI has to mandatorily consult the senior-most judge of the Supreme Court (if available) acquainted with the high court from which the potential candidate hailed (for Supreme Court appointments) and to which high court the candidate was proposed (for high court appointments).
These elements of the consultative process are meant to dilute the scope for arbitrariness in the decisions of the collegium, but the benches in the Second and Third Judges cases hardly envisaged that in practice, they could result in a stalemate, as being witnessed in the Bobde collegium.
If the collegium’s functioning is less opaque, there would have been better appreciation of the reasons for the stalemate, forcing the government to come clean on potential appointees, on whom the members of the collegium appear to be divided on the apprehension that the government may not endorse its recommendations.
Arun Jaitley’s criticism of the collegium
A former Union finance minister, late Arun Jaitley, had critiqued the collegium system in a chapter, titled ‘The Judicial Collegium: Issues, Controversies and the Road Ahead’ in a volume, Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence, edited by Arghya Sengupta and Ritwika Sharma (OUP, 2018).
The collegium’s opaque functioning, questionable choices, and genuine lack of encouraging participatory involvement of interested stakeholders came in for criticism from Jaitley.
Jaitley suggested that the collegium system allows less worthy candidates to slip through, even if the question of whether it inherently produces less worthy candidates is a matter of subjective opinion.
In Jaitley’s experience, two particular features of the operation of the collegium system are pernicious. First, he alleged that bargains are struck between members of the collegium. Often, members have their favoured candidates and are willing to accept other members’ candidates if it means one’s own can be appointed or elevated. As a result, merit often ceases to be the single most important criterion. It is replaced by community representation, caste, ideology, or plain familiarity, he said.
At the same time, Jaitley argued, the relevance of seniority in elevations to the Supreme Court appear to be strategic. While often the lack of seniority is seen as a reason why appointment of competent judges is kept on hold, in other cases, seniority is seen as a criterion that can be overridden, he said. The non-consideration of the names of Justice A.P. Shah, Chief Justice of the Delhi high court, and Justice A.K. Patnaik, the Chief Justice of the Madhya Pradesh high court, by the collegium despite their seniority in comparison with the judges recommended raise considerable doubt as to whether seniority is a criterion or a self-serving tool to be used at will, Jaitley wrote.
Former judge of the Supreme Court, who was herself a member of the collegium before she retired, Justice Ruma Pal described the role of the collegium in appointing judges as one of the best kept secrets in the country.
She admitted: “The ‘mystique’ of the process, the small base from which the selections were made and the ‘secrecy and confidentiality’ ensured that the ‘process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”.
Jaitley, sharing Justice Pal’s concern, wrote that no process should allow such an institutional hijack. Jaitley pleaded for creation of a shortlist of names of candidates who could potentially fill the vacancy six months before a vacancy arises for a seat in the Supreme Court or the high court. This should follow a clearly laid-out consultative process with members of the relevant bar and existing members of the bench. Additionally, there should be a specified zone of consideration of high court judges it can consider eligible for judgeship for the Supreme Court. For high court appointments, a similar zone of consideration of District Judges should be established, he wrote.
Jaitley also proposed certain objective criteria for assessing merit and suitability of a candidate. According to him, while a master’s degree in law should be made mandatory in case of a judge of a high court, a doctorate degree can be contemplated as mandatory in case a potential appointee belongs to the category of ‘distinguished jurist’ – a category which, to date, still remains un-utilised. Additionally, he said, other indicators of academic merit should be considered, such as the number of academic publications to an appointee’s credit, teaching experience, and academic lectures delivered.
For people who are elevated to the bench from the bar, a certain minimum number of cases argued and appearances recorded should be considered, Jaitley said. This would be indicative of the standing of the person as an advocate, and at the same time, assist in judging the legal acumen of such person. The number of junior advocates such person has had under him or her whom he or she has trained would give a general idea of the extent of contribution made by such an advocate to the legal profession by bringing junior advocates under their tutelage and mentoring them about the nuances of the legal profession.
Jaitley cited the 25th Report of the Select Committee on Judicial Appointments in the U.K. (2012) which spells out the criteria to be followed in assessing the merit of a candidate. The criteria specified by this Report have been divided into five categories, namely intellectual capacity (expertise and appropriate knowledge of the law), personal qualities (integrity, decisiveness, objectivity, among others), ability to understand and deal fairly (commitment to justice and independence, and willingness to listen with patience and courtesy), authority and communication skills (ability to inspire respect and confidence, and maintain authority), and efficiency (ability to work at speed and under pressure).
The Select Committee acknowledges that since assessing merit is not a wholly objective exercise the various criteria will have to be weighed up differently according to the importance attached to each one by the individual selector. Jaitley suggested that these suitability criteria can be used while inserting a caveat that they will be weighed up according to the opinion of each individual member of the collegium. Jaitley also argued in favour of laying down clearly the criteria regarding age of a judge, both the minimum age, as well as the role of seniority.
Jaitley’s proposals are worth following up, even if the government he was part of was complicit in the contempt of the Supreme Court’s judgment in the NJAC case mandating the drafting of the revised Memorandum of Procedure (MoP) to appoint judges to the higher judiciary.