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.
Subscribe
Notify of
guest

This site uses Akismet to reduce spam. Learn how your comment data is processed.

7 Comments
Inline Feedbacks
View all comments
Nick Robinson
Nick Robinson
9 years ago

Compelling post Abhinav. I wonder though if the JAC couldn't also gain a large amount of influence over the Supreme Court. You are right that once the judges are appointed to the Supreme Court they would be very difficult to remove. However, if the JAC is only appointing judges with a strong track record of siding with the government on major matters this is also a serious form of control. One only look at the US where judges have life tenure, but depending on what political party appointed them they tend to side with that party in major political cleavages that come before the Court. This isn't because they are still controlled directly by the party. It's because the President picked judges who are ideologically likely to side with him or her well into the future.

Vasujith Ram
Vasujith Ram
9 years ago

Dear Abhinav,

This is a great post. I have a few points –

1. One of the circumstances in which supersession may take place is if the seniormost judge has only a few weeks or months to retire. If I remember correctly, I have read that one of the reasons the Government gave for the supersession of Justice Shelat after Kesavananda was that he had only a month left to retire. With the present system I don't think any judge would refuse to be the CJI even if he had only a few weeks left to retire, with the lure of post retirement jobs and high status too much to give away. The JAC system may well be a healthy change with reference to this aspect.

2. You note that "most" of the judges appointed before the collegium system existed were independent judges, naming Subba Rao, H. R. Khanna, etc. But when it came to a crucial moments like the Kesavananda case – you notice how the executive can take over. George Gadbois in his book (chapter on the Sikri Court) notes how there was frantic appointments after the Golaknath case as it would have to be overruled by a 13 judge bench. There was a reversal of roles when it came to appointments and the executive took over power. 7 of the 9 appointees were on the Kesavananda bench, and 5 ruled in favour of the governments. Yes there have been independent judges, but isn't situations like this what we want to avoid?

3. In your post you compare several situations with the pre-collegium system. But is it right to assume that the pre-collegium system will be similar to the JAC system? Apart from the possibility of a vastly different composition of the JAC (composition, tenure and other aspects of the JAC have been left to ordinary law), there have been a lot of changes in our political culture since then – so I don't think it is right to presume that appointments will be similar to those in the pre-collegium era.

Jhon smith
Jhon smith
9 years ago

What a good blog you have here. Please update it more often. This topics is my interest. Thank you. .

Mangesh Patwardhan
Mangesh Patwardhan
9 years ago

Abhinav,

The example of Roberts supporting Obamacare is an outlier. Almost everywhere else, he voted with the conservatives. Even here, his support to Obamacare was partial (only w.r.t. to minimum coverage provision), he joined the conservative plurality in invalidating forcing expansion of Medicaid on the states. A more appropriate example may be O'Connor – a Reagan appointee who became the famous `swing vote'. But we should be cautious in generalizing. There are examples from the other extreme too. Justice Thomas has been more than steadfast in supporting the Republican agenda, never misses a chance to advocate overturning Roe v Wade or limitative interpretation of interstate commerce clause. One really has to sit ansd watch how this plays out in India – post JAC.