India - Primacy of executive,a dangerous move

Anil Divan


Let the Bar and civil society give a clear response to the Law Minister that under no circumstances can the old system of primacy of the executive in judicial appointments be restored.


On September 23, 2008, the Supreme Court appointed the CBI to investigate the Ghaziabad Provident Fund Scam case . The Court’s hands were forced because appearing for the Ghaziabad Bar Association, it was pointed out by the author that the Uttar Pradesh police and the government themselves desired a CBI investigation.

The response of the executive was direct and strident. Union Law Minister H.R. Bharadwaj, in an interview to the Hindustan Times ( September 25, 2008) is reported to have said: “The quality of some of the judges selected over the years was questionable” —“the system of selection by a Committee of judges (collegium) had failed” — “In a bid to maintain its supremacy, the judiciary tried to rewrite the law through a Supreme Court judgment in 1993 which gave them the powers for appointments and transfers. Merit has been ignored while give and take has thrived in the collegium system.” . . .

“I feel now is the right time to have a re-look at the collegium system which has failed...”

“There was a time when the judiciary was above suspicion and people had great respect for it. The same cannot be said today, serious allegations of corruption against judges are in the public domain. It needs to be corrected.”

But most alarming and disturbing was the solution offered by him. “A committee of judges could recommend names, which should be finalised after discussions between the CJI and the President. The decision of the President should be final on the advice of the Union Cabinet.”

The views of the Law Minister are naïve and disingenuous. The Central government is always consulted before appointments to the High Courts and the Supreme Court. It has the infrastructure and the capacity to gather information, which may not be available to the collegium. It has the Intelligence Bureau, the police and other sources of information. Did it not equally fail when undesirable appointments were made? Did it record in writing its dissent? The Law Minister’s attack is slanted in favour of the executive. It is an attempt to restore a ‘failed’ discredited mechanism — universally condemned. The effort is to restore the primacy of the executive.

Our Supreme Court has earned an enviable reputation by enlarging human rights jurisprudence for disadvantaged groups. It has been a bulwark against excesses of the executive and the legislature (except during a short period of the Internal Emergency) and a pillar supporting the rule of law and our democratic freedoms. Its contributions in protecting journalistic freedom against legislative privileges, to electoral reforms and its rulings against arbitrary dismissal of State governments, censorship and gender discrimination are outstanding. It stands tall among constitutional courts in new democracies.

Historical background


In our constitutional history, there have been tensions between the executive and the judiciary. When judicial review invalidated progressive land reform legislation in the early 1950s, constitutional amendments were fashioned to nullify the decisions. The judiciary was under criticism by the legislature and the executive as being too conservative in its approach.

There was no attack on its honesty, integrity and probity. After the judgment in the Kesavananda Bharati Case delivered on April 24, 1973, a powerful executive struck back. On the retirement of Chief Justice Sikri on April 25, 1973, A.N. Ray was made Chief Justice of India superseding three seniormost judges namely Justice Shelat, Justice Hegde and Justice Grover who promptly resigned. The executive said it wanted “forward-looking” judges.

The Bar stood firmly behind the superseded judges. The supersession was condemned as subversive of the independence of the judiciary. Protest meetings were held all over India. Chief Justice Hidayatullah’s immortal phrase is worth recalling. He said — “One will have judges ‘looking forward’ rather than ‘forward-looking’.”

The Internal Emergency


The government resorted to mass transfers of independent High Court judges who stood up during the Emergency. Constitutional amendments were rushed through while all major Opposition leaders were preventively detained without trial. The powers of the Supreme Court and the High Courts were drastically reduced and judicial review was sought to be ousted almost completely. In the general election of 1977, the Indira Gandhi government lost power and the Janata Party formed the government under the Prime Ministership of Morarji Desai. Shanti Bhushan who had succeeded in the election petition disqualifying Indira Gandhi became Law Minister and fashioned the 44th amendment by which the powers of the higher judiciary, including judicial review, were restored. However, in 1980, the Janata government fell and Indira Gandhi was voted back to power. Again attempts were made to exercise powers of transfer against High Court judges. This was widely perceived as a threat to the independence of the judiciary and it was in this background that the Supreme Court overruled the earlier decisions and negatived the primacy of the Union executive in appointments to the High Courts and the Supreme Court, as well as transfers of High Court judges.

The final word was ruled to be with the Chief Justice of India — not his individual views — but views of senior judges after a plurality of consultations constituting the collegium.

Many of the active players in these decisions both on the Bench and the Bar regard that decision as a mistake made in asserting and giving primacy to the Chief Justice of India and the collegiums. The better view is that those two judgments were the correct prescription for the malady then prevailing and were essential in the circumstances and context to assure the independence of the judiciary.

However, things have radically changed. This is the era of weak coalitions. The Central executive has never been weaker. The threat to the judiciary is not from outside but is internal.

Crisis in the higher judiciary


The Ghaziabad Provident Fund Scam was followed by Rs.15 lakh in cash being sent by a law officer to a sitting judge of the Punjab and Haryana High Court now allegedly meant for another woman judge.

Justice Soumitra Sen, a serving judge of the Calcutta High Court has been identified by the Chief Justice of India as fit for impeachment. A few years ago, Justice Shamit Mukherjee of the Delhi High Court was accidentally discovered to be indulging in dubious transactions when phones of certain other officials were under surveillance by the police.

The reputation of the higher judiciary is at a low ebb. To quote from the author’s article “Judging the judges” ( December 5, 2002), “Unless vigorous in-house action is taken by the judiciary to repair the damage, public opinion will call for legislative intervention by Parliament. A legislative mechanism unless properly framed may be subversive of judicial independence … Every adversity is an opportunity”.

There is well-intentioned and legitimate criticism of the collegium system as now functioning. The present system of appointment requires radical restructuring — but the reform must be in the right direction. Reviving a failed system is a recipe for disaster. The final word in appointments to the higher judiciary can never be safely entrusted to fractious coalition governments — weak on governance, soft on terrorism and high on corruption. Each coalition partner will demand its quotas on the High Bench as well as the High Courts — on occasions threatening withdrawal of support. An increasing politicisation of the judges indebted to political factions is not a result “devoutly to be wished.”

In our dissatisfaction with the present system, let the family silver not be stolen by the executive. Let the Bar and civil society give a clear response to the Law Minister that under no circumstances can the old system of primacy of the executive be restored.

The way forward is a transparent, accountable and open merit system, but that is another call.