Supreme Court takes Suo Moto Cognizance to Assess the Implementation of Rape Laws-Frames a series of Questions for States and Union Of India to Reply

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Taking suo motu cognizance on the assessment of the criminal justice system regarding sexual offences, the Supreme Court on Wednesday sought a reply and status report from all the states and High Courts on aspects such as investigation process, collection of evidence, recording of statement of victim and time frame for trial. Taking serious note of the rising number of rape cases in the country, the apex court underlined the need to collate information and status reports to ensure holistic implementation of the provisions of the rape law.The top court also appointed senior advocate Siddharth Luthra as amicus curiae for assistance in the matter.

Citing the delay in the verdict of the December 2012 gangrape case, the Supreme Court said: “The December 2012 rape case shocked nation’s conscience; delay in such matters created agitation, anxiety, and unrest in the minds of people.”

This comes two days after CJI SA Bobde appointed a committee of two Supreme Court Judges for ensuring speedy disposal of rape cases across the country. The Committee consists of Justices R Subhash Reddy and MR Shah. The CJI had constituted the panel in the exercise of his administrative powers for the purpose of monitoring of the cases through the High Courts to ensure their speedy disposal in a time-bound manner.

IN RE : ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES SMW (CRL.) No(s).04 OF 2019

  1. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
  2. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
  3. We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.
  4. The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.
  5. As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence. In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?

(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?

(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?

(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?

(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?

  1. By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any case has been registered under the Section 166A of IPC against any public servant?

(2) whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

  1. Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial. Amendments in this regard have been inserted by the Amendment Acts of 2013 and 2018, whereby the newly introduced Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed, together with a duty to inform the police of such incident. Failure to comply with the above provision has also been made an offence punishable under Section 166B of IPC.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?

(2) whether any case has been registered against any person under Section 166B of IPC?

  1. The manner in which the medical report of the victim is prepared is also a matter of concern. The Amendment Act of 2013 has inserted a new provision, i.e. Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report. Other than the above information, many a times valuable information in consonance with the definition of rape as amended by the Act of 2013 are not supplied.
  2. Also, vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.
  3. The Ministry of Health and Family Welfare, Government of India had prepared “Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence”.
  4. The Ministry of Women and Child Development has designed a Medical Kit for examination of the victim and the accused in cases of rape. The Union Government and the State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence.
  5. Further, Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman. In the case of Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14 SCC 643 it was observed as follows:-

“In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with genderbased violence. The State is under an  obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?

(2) whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?

(3) whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?

(4) whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?

(6) whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?

(7) whether lady medical practioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?

  1. Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.
  2. In relation to the examination of the accused, Section 53A of Cr.P.C. provides for timely examination and guidance for preparation of medical report.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?

(2) whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?

(3) subject to availability, whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?

  1. Section 173 (1A) Cr.P.C. provides that the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?

  1. Sub-Section (5A) of Section 164, Cr.P.C. provides for recording of statement of the victim by the Court. Other than recording of statements under Section 164, for the purpose of recording of statements during the trial, Section 119 of Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be video graphed.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?

(2) whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?

  1. Section 26 clause (a)(iii) of Cr.P.C. provides for trial of such offences to be conducted by a Court presided over by a woman judge, as far as practicable. Further, Second proviso to sub-Section 327(2) of Cr.P.C. also mandates that in camera trial shall be conducted, as far as practicable, by a woman Judge or Magistrate. It must be noted that the insertion of the above proviso has a very important object and the rider of “as far as practicable” cannot be used to overcome the mandate in ordinary manner.
  2. The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court. The proviso to sub-Section (1) of Section 309 mandates that the inquiry of trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether trial of cases relating to rape are being conducted by Courts presided over by a woman?

(2) whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?

(3) whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?

(4) whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

 (5) whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?

  1. Under Section 230 of Cr.P.C., a trial program is generally prepared on the application of the prosecution. This Court in the case of State of Kerala v. Rasheed, AIR 2019 SC 721 has held as followings:-

“The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

  1. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
  2. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

  1. testimony of witnesses deposing on the same subject matter must be proximately scheduled;
  2. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;
  3. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination in- chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;

  1. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?

(4) whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?

 (5) whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?

  1. The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?

(2) whether police protection is being provided to the victim during investigation and trial of the offence?

(3) whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?

(4) whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

  1. Section 357A(2) Cr.P.C. provides for award of compensation to the victims. The District Legal Service Authority or the State Legal Service Authority are bound to decide as to the quantum of compensation to the victim on the recommendation of the Court. By the order of this Court in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India, the National Legal Services Authority, New Delhi had prepared a Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018. This scheme has been circulated among all states for necessary actions. The Scheme comprehensively provides for the rehabilitation and compensation for the victims of Rape.
  2. As the victim goes through a mental trauma and requires immediate counselling, legal aid and medical, social and in some cases, economic rehabilitation.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?

(2) whether the amount of interim or final compensation is being provided to the victims in time bound manner?

(3) whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?

 (4) whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?

(5) whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation centres in existence for the victims of rape?

  1. In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up the fund been achieved.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?

  1. Let the matter be registered as Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”.
  2. In order to collate all the information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making the criminal justice system more efficacious and responsive towards the offence of rape and other sexual offences, we request Shri Sidharth Luthra, Senior Advocate to assist the Court as Amicus Curiae in the matter.
  3. The learned Solicitor General is requested to extend all co-operation to the Amicus Curiae in this regard.
  4. The Secretary General, Supreme Court of India shall also extend co-operation in respect of calling for information and status reports from the Chief Secretary and the Director General of Police of all the States, the Registrar General of all the High Courts and other functionaries, as may be required.

45897_2019_1_49_19246_Judgement_18-Dec-2019

Justice Ranjan Gogoi delivers the third Ramnath Goenka Memorial Lecture — The Vision of Justice

PUBLISHED IN THE INDIAN EXPRESS

Full text of Justice Ranjan Gogoi’s speech at RNG Memorial Lecture:

I express my most heartfelt gratitude to The Express Group for extending this opportunity to me to deliver the lecture which has been organised in the memory of a man who was an institution in his own right: Ramnath Goenka ji.

While unlike some of you present here, I had not had the occasion to ever meet him, but, fortunately I have not been untouched by his proud legacy. Which gleams through that what he had founded as an answer to Gandhi ji’s call to start a swadeshi newspaper. Living in the realm of the Raj, it needed an iron-will and iron man and we found it in a young Ramnath ji. His legacy also gleams through the rich jurisprudence on the Freedom of the Press that he was instrumental in moulding, and which, by virtue of my Office, I work every day. It needed a committed and a cause-driven litigant – a rarity which it is nowadays – and we found it, yet again, in Ramnath ji. During the dark days of the Emergency, he stood as an unwavering gatekeeper of those fundamental liberties that we hold so dear today and that is his legacy too.

PART 1:

Today, after all these years, some remember him as the ‘Warrior of the Fourth Estate’ 1 , some remember him as a “dogged, unyielding adversary” 2 , some remember him as an “iconoclast”, some as a “magnificent rebel”. He was, at times unapologetic, at times uninhibited, at times even contradictory, but forever fierce, forever feisty, and forever fearless. His entire life trajectory from Darbhanga to Madras to Bombay; from the Constituent Assembly to the Newsroom to the Courtrooms, is a test case of its own kind that we, perhaps, need to use more often in our lives, in our institutions. Not too long back, I had read an interesting news article talking about the surprising surge – which is not so surprising, all things considered – in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”

Abhishek Manu Singhvi of the Congress party along with former finance minister P Chidambaram at the third Ramnath Goenka Memorial Lecture in New Delhi. (Express Photo by Abhinav Saha)

If I had to put it very simply, for me, this is what Ramnath ji stood for. The freedom to say that two plus two make four. And, that is how I remember him as. Someone who could call Spade a Spade. Someone who could speak truth to power. Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years? Why I have chosen the topic for this discourse merits a context too. And, this is the context. These are some sore questions, but too significant to get lost in the everydayness. And, when it is so, what other better tribute can there be to a visionary who embodied in so many ways the spirit of our Constitution, than to spend a thought. To spend a thought over how far we have come to achieve the vision that he had seen as someone who helped free the country in one era, and helped it become a meaningful Democracy in another.

PART 2:

I will use a few minutes to put across my proposition as to what I intend to say when I talk about the “Vision of Justice”. I will borrow from the Chief Editor Shri. Raj Kamal Jha himself, because it offers a very fine perspective. Very powerfully and thoughtfully and rightly, he said of Ramnath ji in one his letters to me, that, “fierce independence” and “enduring sense of inquiry without fear or favour” were the two values that Ramnath ji believed formed the “bedrock of Justice”. It is absolutely incontestable that they do and, for convenience, let me call them the Bedrock Principles. But, if I were to look at it anatomically, while these do indeed form the bedrock of Justice, what is the Form/Body of the ideal called Justice which rests on this bedrock? The Bedrock Principles have been the talk of the town lately considering how the entire thinktank is so keenly focused on it. And I am not suggesting that it ought not to be. It ought to be done and it is being done. I cannot recall the last time, the Judicial wing of the State made so much news. On a lighter note, let us recall, Hamilton (the American Founding Father) who had suggested that the Judiciary was the least dangerous branch of the State’s three branches – and I will refer to him again during the course of my address – but, were he to be here today, I wonder if he would have felt the same way. More so, in the light of the IE Top 100 Most Powerful Indians which included several names from the judiciary. But, the fact of the matter is that if we have to take stock of how we have fared – and about seven decades later since we ventured into becoming a Constitutional Order, this appears to be an opportune time to do so – we might as well do it comprehensively. And, by comprehensively what I mean is that we must evaluate both the Bedrock Principles and the Form Principles because the Vision of Justice, the way I understand it, is a compound of both. Clearly, they are not unconnected. And over the course of next about half an hour, I will attempt to touch upon both. I will begin with the Form Principles, and bear with me, in order to drive home my point, I may have to get somewhat academic.

From (L-R): Hrishikesh Roy, Chief Justice, Kerala High Court, Deepak Gupta, Judge, Supreme Court, N V Ramanna, Judge, Supreme Court, Madan B Lokur, Judge, Supreme Court at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha) 

You will agree, that in the backdrop of a bleeding mega partition, deeply entrenched inequities, perpetuating injustices, our Constitution ushered us into believing in a grand promise of transformation on a scale that was beyond reformatory. It was, in all its full glory, a revolution in all aspects of life – social, economic, political. In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. The State would be religion-neutral, the citizens equal and together. Coming to think of it, it was just as pretentious as it was unpretentious an idea. But be that as it may, public institutions (one of them being the Judiciary) were inherited, they were tweaked where need was felt, to give life to this prodigious architecture of Justice. And, here, I would like to clarify that by justice, I am not implying only the juridical connotation of the word which is the administration of justice by the courts of law – although it is just as imperative – but justice is something that is an overarching principle, an underlying fundamental, the spirit, an order so to say. Which is why I say “prodigious”.

PART 3:

Because, it was a confluence of very many philosophies – [1] the Aristotelian, for instance, which suggests that the very essence of the State is justice which according to the philosopher was a social virtue; good of others; equality and fairness. When we peruse the Preamble to the Constitution- our vision document – is it not that this ideology is enshrined in the words “Equality of status and opportunity”? [2] Or, the Utilitarian philosophy of John Stuart Mill whose view was that justice was the greatest good to the greatest numbers. In the Preamble, is this not enshrined in the principles of “Socialism”, and “Equality” yet again? [3] Or, the relatively more modern one: the Rawlsian perspective which is that justice as fairness is the most egalitarian and also the most plausible concept of liberalism. In the Preamble, is this not reflected in the words “Liberty of thought, expression, belief”. So, the Preamble, if you deconstruct it precept-wise, is the very embodiment of these ideas. Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few. They are not isolated silos because their undying endeavour is to establish one discipline – of overall justice, of an inclusive society. And, this is exactly what I meant by the Form Principles of Justice as an ideal. As a composite unit called Justice, these had been intended to be achieved by the Legislature, the Executive and the Judiciary.

Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few — Justice Gogoi in his address. (Express Photo by Tashi Tobgyal)

Now, it will make for an incredibly interesting and if I may add overwhelmingly contentious tale to tell as to how the Executive and the Legislature have performed on this front. But the scope of my discourse will be limited to the judiciary’s endeavour in this regard. A few months back, I had the occasion to deliver the Justice P.D. Desai Memorial Lecture, at Ahmedabad. And, there I had proposed that attaining Constitutional Idealism was not like chasing a rainbow and the Supreme Court, through its pronouncements, had been reflecting it. It would not be a display of the pessimism of the intellect today, if I were to say that while, indeed, attaining Constitutional Idealism (= Vision of Justice) is not like chasing a rainbow, but, it is so only in the courtrooms. Perhaps, because fields are where the rainbows are (“fields” being the operative word). The point being that the way nation is built and the way this grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the Constitution and the operational aspect of the Constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, but we must, at the least, not become retrograde.

Justice Ranjan Gogoi: The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. (Express Photo by Tashi Tobgyal)

Take for example the 2015’s ruling in Shreya Singhal v. Union of India 3 (2015). It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A. Interestingly, while doing so, the Court was certainly inspired by, amongst other rulings, Romesh Thappar v. State of Madras 4 (1950); Brij Bhushan v. State of Delhi 5 (1950); Bennett Coleman & Co. v. Union of India 6 (1973). If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian’s Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the 19 th June, The Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies”.

From (L-R): Acting Chief Justice of Delhi High Court Justice Gita Mittal, Former Law Minister Ashwani Kumar, CPI leader D Raja and jurist Soli Sorabjee at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha)

It said, at one place, that, “…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.” I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. While Shreya Singhal was significant in its own right, NALSA v. Union of India 7 breathed new life into the Equality principle. The Court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalizations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala 8 . This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their Fundamental Right to ‘freedom of conscience’, the Court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”

Former Chief Justice of India Rajendra Mal Lodha (Express Photo by Abhinav Saha)

The court also felt the need to add a thought. And, I feel compelled to quote it. It is the penultimate line of the verdict and it says – “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Recently. in Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu 9 , the Court held that even in the matters of religious beliefs, constitutional legitimacy cannot be foregone and following Justice B.K. Mukherjea in Shirur Mutt case (of 1954), went on to hold that it is not the State or the religious Indian but the Constitutional Court which decides on what constitutes essential practices of any particular religion.

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice 10.

In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. (Express Photo by Tashi Tobgyal)

In his last address to the Constituent Assembly, Dr. Ambedkar had said that we must not only be a political democracy but a social democracy as the former cannot last unless lies at the base of it the former. And, social democracy, he defined, as a way of life which recognises liberty, equality, fraternity as one principle. I wouldn’t want to wade into knowing if we are a successful political democracy, but, I do, earnestly believe, that we are a social democracy, in all aspects. But again, largely jurisprudentially. And the disparity is there because the two Indias – both just as perceptible – are at conflict. There is an India that believes that it is the New Order and there is an India that lives below a ridiculously drawn Poverty Line on daily wages in night shelters with no access to education or healthcare, let alone access to the Courts of Law. The ambivalence is intriguing. And, this is exactly what I call as getting lost in translation. One India in the aforementioned perspective is the Vision and to know how far we have succeeded in attaining this Vision of Justice is really a matter of perception. But nevertheless, there is a graphic disparity right there and removing this disparity will be the mission for the Indian Judiciary in the times to come. And if I may add, for that to happen, it is going to require a “constitutional moment” of its own kind in the life of this institution, which I believe has been long overdue.

“I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated,” says Justice Gogoi. (Express Photo by Abhinav Saha)

The Constitutional history with reference to this institution as a whole (and, especially the Supreme Court) would show that its own role has constantly evolved in the light of the socio-political context. If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation. For the effectiveness of the judgments to show, the justice dispensation system has to be made more result oriented i.e. to say, more focused on enforcement. I understand what Mr. Arun Shourie 11 suggests when he wonders if the judiciary is not being an “accessory to the resulting deterioration”, when it in its hopefulness and optimism, doesn’t go after its mandate till its implementation. I find it difficult to agree wholeheartedly. But I will certainly say that the judiciary must certainly be more pro-active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (= separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a constitutional moment of its own kind. However, it is going to be a tall order both at the micro level and the macro level because both come with their unique sets of challenges.

Executive Director of The Express Group Anant Goenka (left) presents a sketch to Justice Ranjan Gogoi at the third RNG Lecture in New Delhi on Thursday. (Express Photo by Neeraj Priyadarshi)

By micro level, what I mean is administration of justice on day-to-day basis. Here, the so-called “inefficiency” and “slow processes” have been historical challenges. I will put it very simply. The judiciary today is not a poor workman who blames his tools, but it is a workman with no tools. I am not going to saddle you with the figures that we keep consuming every day on pendency, arrears and judges’ strength but in the light of what a French author had once said, “Everything has been said already, but as no one listens, we must begin again.” 12 , I will only ask and request those at the helm to finally listen so that we must not have to begin again. In addition to that, I also feel that there is a pressing need to explore the endless limits of legal services mechanism. Legal awareness and legal empowerment of the marginalised in this vastly unequal society of ours, have to be a made an observable reality. Let me give you one instance which is glaring insofar as personal liberty is concerned. 67% of the prison population are undertrials, mostly belonging to the underprivileged classes and 47% of them are between the age of 18-30 years. Compare this with the U.K. where it is about 7% and the U.S. which is acknowledged to have a high rate of incarceration where the percentage is 22.7%. The period of about one year that a majority of the undertrials have been in custody would hardly redeem the situation. Will it be wrong to suggest that a fair share of our demographic dividend is being unjustifiably lodged in the jails and mostly for petty or less serious offences?

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. (Express Photo by Neeraj Priyadarshi)

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. I would like you to recall that I had mentioned about Hamilton in the beginning of the discourse. While contemplating the U.S. Constitution 13 , he had said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

Punjab and Haryana High Court Judge Justice Surya Kant (Express Photo by Abhinav Saha)

I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really our infallibility that should define us. It is my imagination of an ideal world and I am aware of what Carl Jung had said of it. He had had said that, “Every form of addiction is bad, no matter whether the narcotic be alcohol, morphine or idealism.” I don’t know how true his view holds on other counts, but as far as idealism is concerned, I would say, it should be pursued like an axiom. Thank you very much.

Jai Hind!

How government plans to use DNA

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By Sowmiya Ashok , Amitabh Sinha | New Delhi, Pune Published in The Indian Express

After a series of attempts to legislate DNA technology, a Bill on the subject has been cleared by the Cabinet. Whose DNA does the Bill propose to use, and how? How will it address privacy concerns?

With DNA technology being relied upon worldwide in crime investigations, identification of unclaimed bodies, or determining parentage, India has been attem

pting for several years to pass legislation on use of DNA technology to “support and strengthen the justice delivery system”. Last week, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018. This follows attempts to frame a Bill in 2007, 2015 and 2017, each under a different name.

Broad features

According to the final draft prepared in December 2017, the Bill seeks to “provide for the regulation of use and application of DNA technology for the purposes of establishing identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith…” Its major features include:

DNA REGULATORY BOARD: The board, which will have regional offices as required, will certify labs authorised to carry out DNA testing, approve establishment of DNA databanks and supervise their functioning, and lay down procedures and guidelines for collection, storing, sharing and deletion of DNA information.

DNA DATABANK: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format. “As I see from earlier drafts of the Bill, the DNA Databank will have various categories of indices such as crime scene index, suspect index or undertrials index, offenders index, missing persons index.” said Madhusudhan Reddy, lab-in-charge of DNA Fingerprinting Services at the Centre for DNA Fingerprinting and Diagnostics in Hyderabad. This, he said, will help solve and prevent crimes and can also be used for civil matters. “According to the NCRB, there are almost 40,000 unidentified bodies within the country. And if in a nearby area an FIR has been registered reporting a missing person, the family member’s DNA can be compared with the unidentified person to see if it matches.”

Limited purpose

The Bill states that the DNA data, including DNA profiles, samples and records, contained in any DNA labs and Databank “shall be used only for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases in accordance with the rules of admissibility of evidence, to facilitate prosecution or defence, and in investigations relating to civil matters.

Other than in suspects and offenders’ index, the identity of a person is not to be stored in other indices. Only case reference numbers are to be stored in such cases, the Bill states. If a person is not an offender, suspect or undertrial, his/her DNA information cannot be matched with the offenders’ or suspect index. DNA profiles of suspects or undertrials can be removed from the index as per court orders.

The Bill states that DNA information cannot be taken from an arrested person without consent. The exception is only for specified offences, though

the Bill does not elaborate on this. Samples can also be obtained from persons who are witness to a crime, or want to locate their missing relatives, or in similar instances in which they can volunteer, in writing, to offer their DNA samples for a specific purpose. But volunteer samples would not be stored in any index. In case, the Bill states, a suspect or criminal refuses to give consent for DNA collection, and his/her DNA information is considered vital for investigation of a crime, the DNA information can be collected from him/her only with the approval of a magistrate.

Safeguard against misuse

The Bill states that disclosure of DNA information to unauthorised persons, or for unauthorised purposes, shall lead to penalties: up to three years in jail and up to Rs 1 lakh as fine. Principal Scientific Adviser K VijayRaghavan, a former secretary of the DBT, said that the new version looks at the DNA sequence in a manner where all major genes are anonymous. “They look at those elements which identifies the person, but don’t identify any of your genes. Genetic background is protected, but the person is still identified,” he said. “This is just like how your fingerprints will identify the person but not tell you whether he has diabetes or not. So this law cannot use DNA identification in criminal cases, loss of lives, paternity, in a manner which reveals anything about the person’s health.”

Previous attempts

The draft Bill was first named DNA Profiling Bill in

2007 and then Human DNA Profiling Bill in 2015. In July 2017, the Law Commission’s report proposed a new amended draft called ‘DNA based Technology (Use and Regulation) Bill’, 2017, addressing some concerns on privacy and possible misuse. This current Bill is modelled largely on the Law Commission proposal, except for some nominal changes.

The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board. In previous versions, including the draft of the Law Commission, this job was open for other “eminent persons” as well, provided they had expertise and knowledge of biological sciences for at least 25 years. The head office of the board, earlier proposed in Hyderabad, is now to be in the National Capital Region.

Reddy said that India is 15 years behind the rest of the world in putting in place such a legislation. “We started off on par with western countries, and DNA profiling was used in the Rajiv Gandhi case and later DNA fingerprinting in the tandoor murder case. But slowly from 2007 onwards, we have been lagging behind, largely because people had some questions and issues regarding privacy. I do think this version is a best version of the Bill, incorporating suggestions that came in from stakeholders,” he said.

Reddy points to laws in countries like the US, to pr

otect genetic privacy. “Basically, there are enough safeguards here. But it would be strengthened if there was an overarching set of provisions and safeguards to protect our genetic information,” he said.

Despite the government’s pitch that such a DNA bank will be useful in solving crimes, activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused. It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislation is already being followed.

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The current accountability deficit

heBY RAJU RAMACHANDRAN IN THE INDIAN EXPRESS

Debates on the collegium system generally start at the wrong place, namely, whether a national judicial commission will be a better alternative. The point at which they ought to start is whether the creation of such a system is constitutionally permissible. Article 124 of the Constitution states that every judge of the Supreme Court shall be appointed by the president in consultation with such of the judges of the Supreme Court, and of the high courts in the states, as the president may deem necessary. It also says that in the case of appointment of a judge other than the chief justice, the chief justice of India (CJI) shall always be consulted.

In the name of the independence of the judiciary, the Supreme Court said in 1993 that primacy in the matter of judicial appointments must lie in the final opinion of the CJI, “unless for very good reasons known to the executive and disclosed to the chief justice of India, that appointment is not considered to be suitable”. To mitigate the violence done to the

plain language of the Constitution and to reassure every one that power did not rest in one individual alone, that is, the CJI, the court created a new constitutional institution, a collegium of the senior-most judges.

This was not a creative interpretation of the Constitution, as the apologists for the collegium system would have us believe, but a plain rewrite. This was judicial overreach and it was only last year, 20 years later, that serious attempts began to repair the damage to the Constitution.

Having stated my fundamental objection, I will recapitulate my three other objections. First, there must be an element of democratic accountability in the matter of appointments to the higher judiciary, which has the power to strike down laws of Parliament and state legislatures, and even amendments to the Constitution. Second, when judges appoint judges, they look mainly at “technical competence” and seniority. They do not necessarily look at the social philosophies or gender sensitivities of prospective candidates. Third, judges do not pay particular attention to the idea of manpower planning, as is clear from the many short-term appointments of chief justices and short-term appointments to the Supreme Court. In a judge-dominated system, everyone needs to be given a “chance”.

And so, it is about time that we put a better system in place. There is no going back now to the original system of the executive appointing judges in consultation with the judiciary, by invoking the doctrine of “original intent”. Much has changed in the world since we enacted the Constitution. Processes of judicial appointments are far more participatory all over the world. Stakeholders in the justice delivery system are now accorded an important role. Let us look at just two examples.

In Canada, the advisory committee for judicial appointments includes a member of parliament from each recognised party, a retired judge, a nominee of the attorney general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. In South Africa, the Judicial Service Commission includes judges, the minister for justice or his nominee, advocates and solicitors nominated by their respective professional bodies, a professor of law, senators and four nominees of the president of whom two shall be advocates or solicitors.

The judicial appointments commission (JAC) needs to be written into the Constitution itself, not only in terms of its creation but also its composition. It is necessary to make this point because the previous government had originally sought to bring the commission into the Constitution, but left it to Parliament to make an ordinary law to prescribe its membership. This was undesirable. Successive governments would have been free to change its composition according to their will.

Should the JAC be a part-time body? The Union Public Service Commission is not part-time. Surely, appointments to the superior judiciary are not less serious a matter than civil service appointments. But the present collegium, by its very nature, can only meet in the evenings after the judges have finished their arduous courtroom work, and before they start writing their judgments and reading for their cases the next day. To make appointments to the Supreme Court and all the high courts in the country, we need a full-time institution with a permanent secretariat and its own information- gathering wing. And so, the judicial members would have to be former and not sitting judges. Similarly, jurists and eminent citizens will need to be full-time members. The only possible part-time ex officio member could be the law minister.

The national judicial commission will need to devise new methods for attracting talent to the judiciary. The old practice of “asking” and “inviting” must be supplemented by calling for applications from interested candidates (currently, you can apply to become a district judge, but it is bad form to apply to be a high court judge!). Search committees will have to look for the best legal talent, not only from within the court system but also outside. In the current system, non-litigating lawyers don’t ever get considered.

And the question of the “tilting balance” remains. Former judges (most recently, Justice A.P. Shah) take the view that the independence of the judiciary can only be secu red by judges outnumbering the others. I, however, believe that democratic accountability in the process of appointment is equally important and, in principle, judges should be marginally outnumbered.

Finally, since it looks as if we are getting down to business, we need to attend to the removal process as well; it is part of the same Article 124 that is going to be amended. Impeachment involves getting signatures from MPs. On the one hand, it makes it difficult for even genuine complaints to proceed further. On the other hand, it politicises the process. One impeachment failed because the then ruling party abstained from voting, and two others were aborted by midstream resignations (civil servants are not allowed to resign in the middle of disciplinary inquiries; can judges be allowed to do so?). The proposed national judicial commission must therefore be in charge of the removal of judges as well.

The writer is a senior lawyer in the Supreme Court

In defence of the collegium

kt-medBY KT THOMAS PUBLISHED IN THE INDIAN EXPRESS

The appointment of judges at the level of the high courts and Supreme Court continues to be problematic, in spite of cosmetic changes brought in through judicial activism in two stages. What remains is known as the collegium system. It was formulated by a nine-judge bench of the Supreme Court after hearing long arguments addressed by top-ranking counsel. Initially, the collegium system was generally welcomed, despite opposition from politicians on the ground that the judges had arrogated to themselves the power of choosing judges. But in due course, it received criticism from different quarters, including members of the Bar. It is true that the collegium system has remained in force for more than  15 years. As the years have passed, burgeoning criticism that the present system did not remedy the drawbacks of the erstwhile mechanism have eventually become more strident.

At least in a few instances, unsuitable persons have found their way to seats of judges in the high courts. It is, of course, a matter of relief that the number of such persons has not swelled to alarming proportions. At the same time, it would not be true to say that no unsuitable person has reached the Supreme Court bench through the collegium system. The lesson to learn is that however much improvement is sought to be achieved through changes to the appointments process, the efficacy of its working depends on the vision and dedication of the persons empowered  to manage the system.

The chairman of the Law Commission of India has suggested that a seven-member judicial appointments commission (JAC), with a preponderance of members from the judiciary, be instituted. But of what use are the proposed changes if some members of the JAC function in the same manner as before? What is the guarantee that only persons of impeccable and proven integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up the JAC? Having been a member of the collegium of the Supreme Court,  I know how outsiders seek (and get) access so as to canvass for the decision-making process. I doubt that the situation would change if the proposed composition of the JAC were to be implemented. I am also not prepared to say  that the selection of “eminent persons” would not become diluted in due course, particularly because of the vagueness  in standardising who these “eminent persons” can be. I am sceptical of the outcome of the JAC in the long run, given that the scope for manipulation and favouritism cannot be fully eliminated even within it.

A former chief justice of the Kerala High Court had evolved an experiment while adhering to the collegium mechanism. When there were three vacancies of Bar candidates, he invited recommendations from all his companion judges in the high court, requesting them to send at least five names each. He got 40 names altogether, and shortlisted them to 10. He studied their performance and presented his views before the other members of the collegium of the high court. When there was dissent, he expanded the three-member collegium and obtained their views also. He made the final recommendation to the Supreme Court. In that process, the Kerala High Court gained three very fine judges. I thought that the same could be followed by the chief justices of other high courts and, in fact, I wrote an article in support of it. But on deeper thought, I sensed that if the practice continued and remained in place for much longer, the scope for canvassing with other judges for interested persons would have increased greatly and the experiment would have been rendered ineffective.

The criticism that the executive has now no role in the appointment of judges is, to a great extent, misplaced. In my view, there should not be any dispute on the proposition that judges should have the first-stage opportunity to point out who the best candidates for judgeship are. But their judgements on that score cannot be treated as infallible. When names of candidates are sent by the collegium to the executive, it is definitely possible for the executive to conduct a thorough inquiry through such departmental agencies as they could trust. Then the executive can send back the names to the collegium for further consideration and a final decision. One change I wish to propose is to permit the executive to propose names to the collegium at the initial stage.

Whenever recommendations are to be made for more than two vacancies (it may go up to 15 and sometimes even to 20), there could be a temptation for members of the collegium to compromise in order to accommodate candidates on barter considerations. Whenever bulk recommendations have occurred in the past, some not-so-suitable (if not totally unsuitable) candidates have succeeded in getting access to the list. This defect can be effectively eliminated by restricting recommendations strictly to one or two vacancies at a time, and definitely no more. In my view, the existing system  can continue with the modifications indicated above.

The writer is a former judge  of the Supreme Court

Hanging in balance: No executive interference required

opinion1RAJINDER SACHAR IN THE INDIAN EXPRESS

The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.

The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”

The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.

Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.

However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.

I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.

Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.

The writer is a former chief justice of the Delhi High Court

Politically coloured, legally suspect

colBy: J.L. Gupta PUBLISHED IN THE INDIAN EXPRESS

The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.

Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.

Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?

The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,

the matter was considered by the Supreme Court in the second and third judges’ cases.

The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?

No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.

Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?

Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.

The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?

But is the JAC the solution? No!

A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.

The writer is former chief justice,

Kerala High Court

‘If the judiciary is either equal or in a minority, I fear this Bill will be (legally) vulnerable’

JUSTICE AP SHAHPUBLISHED IN THE INDIAN EXPRESS

In this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, Law Commission of India Chairman Justice A P Shah says most judges don’t believe the collegium system works and argues for a fixed tenure for CJI. This Idea Exchange took place before Parliament approved the new Bill for selection of judges

Maneesh Chhibber: Law Commission Chairperson Justice A P Shah submitted a report to the government on the collegium system. Incidentally, he is also one of the prominent victims of the collegium system.

Justice A P Shah: I read Fali Nariman’s article in The Indian Express. It seems he has suggested that the collegium system should be revamped. In my opinion, the collegium system is not a democratic institution; there are no checks and balances in it. If you let the same system continue without any meaningful voice to the executing civil society, even if you make it a little more transparent and a criterion is laid out, it may not improve the system itself.

I have been working on it for the past several days along with some of my colleagues and some people from outside. The government has not asked us to make a report, it is our initiative. At the Law Commission, we thought it’s a very important policy decision — whether you are going to have a judicial appointments commission to replace the present collegium system. It’s the Law Commission’s responsibility to make recommendations in that direction, but it’s not very clear whether it should go as a report or a consultation paper…

You will recall that there was a UPA Bill to bring the retirement age of high court judges on a par with that of the Supreme Court judges. The BJP opposed the Bill, and it is still pending. The only reason given in the Constituent Assembly debates was that high court judges may not opt for the Supreme Court if the retirement age is the same, because that is a kind of temptation to go to the Supreme Court, there is an additional three-year tenure, which I don’t think works today. There are two distinct advantages if it is brought on a par. First, the practice of lobbying and sycophancy, developed in recent times, will stop. Also, there will not be much heartburn because a person continues as an HC judge till 65. The second advantage is that you will be able to select judges at a young age. There is no rule but an unwritten convention that a person below the age of 45 will not be appointed in the HC, and a person below 55 will not be appointed in the SC. Look at the consequences: We are not getting good talent in the HC because once they cross 45, they would be more entrenched in practice. This seniority should really go.

Today, the Supreme Court is packed with (former high court) chief justices who are also the senior-most; there is no search for good talent. Once it is on a par, perhaps you would be able to select judges at a young age and they will continue on the bench for a longer period of time. In almost all countries, judges at the apex court have a long tenure — 10 years is the minimum, it should be 10-15 years. According to me, this (age bar) is rather arbitrary and in the committee meeting, everybody was almost unanimous that seniority should not be the criterion, you need to bring in young people.

And the last point is the fixed tenure of the chief justice. We are working on that. Till 2022, no chief justice will get a tenure of more than a year; the present Chief Justice gets only four-five months. My logic is that it should be five years, because the prime minister gets a five-year tenure, Parliament gets five years, so the chief justice should also get five years. But it may be less — three or two years.

The way the Supreme Court works is very different from what was contemplated by the law framers. One of the reasons there is no embargo against judges taking up post-retirement assignments in the government was because in the Constituent Assembly Dr B R Ambedkar had said that the government has only 5 per cent litigation, and since the government is not a major litigant, why prevent retired judges from accepting post-retirement assignments? That logic is no longer relevant because 60 per cent of the litigations are by the government. So, there may not be a complete bar, but a cooling-off period is very necessary. It could be one or  two years, but there should be a cooling-off period.

Maneesh Chhibber: Don’t you think that the government or politicians are trying to use this clamour against the judiciary as an excuse to undo the collegium system brought in by the Supreme Court?

The UPA Bill (which was not passed) said that the Judicial Appointments Commission should have three judges and three non-judges, but there was an attempt to have an amendment, to have a seventh member. And the seventh member, as per the amendment, was to be a non-judge. So virtually, judges will be in a minority. One suggestion was that there should be two non-judges and an eminent person should be given a veto. If both of them decide to oppose the appointment, then it should not be made. There is a fear (that this is a move to undo the collegium system), and I can’t say no to that.

Arun sukumar: Would the situation be any different if the collegium decisions were to be made public under RTI?

Under RTI, the questions that come up relate to justification for making an appointment or if somebody is being overlooked, or why a particular candidate was chosen for the high court. But the reasons are not given. So how is RTI going to help? RTI’s objective is to bring transparency, but RTI itself is not sufficient. Transparency would come only if you make it known that there are vacancies, you get nominations from the stakeholders concerned, have mandatory consultations with the high courts, state governments and maybe the Bar, and then declare the names before they are finalised, so that people know. I’m not in favour of interviews in public or any such American system, but we must bring in some sort of transparency, and that can’t be achieved by an RTI application.

Maneesh Chhibber: At the meeting which the government called to discuss the Judicial Appointments Commission, one of the biggest concerns was that whatever was brought in, the JAC should meet the standard set by the judiciary. What do you think is that standard?

Upendra Baxi suggested that you prepare a Bill and make a presidential reference to the Supreme Court. Let the Supreme Court examine it, the way it has done in the past. This was a good idea according to me, but it was felt, and may be justifiably, that it takes time. The other was what Nariman suggested. I really liked the idea — have a dialogue, let the judiciary participate in that dialogue. That’s a great idea — let them at least listen to voices of people or other stakeholders. My fear is that if the judiciary is either equal or in a minority, this Bill will become (legally) vulnerable.

Dilip Bobb: You have been consulting colleagues in the judiciary. What is their reaction to your suggestions, including the cooling-off period?

The problem is that most judges — till they are in the collegium — defend the collegium system because it is very difficult for a serving judge (to criticise it). Nobody honestly believes that this system works well. Many retired judges, barring the exception of former chief justice (Altamas) Kabir and a few others, believe that this system has not worked.

About cooling-off period, what is bad about post-retirement assignments is that for one post, there are 10 aspirants. This leads to unfortunate developments.

Seema Chishti: You were talking of an eminent person being selected. Isn’t that problematic?

The problem is manifold. First, the Constitution uses the words ‘distinguished jurist’. Not a single person was appointed in the past 60 years in that category. During the debates in the Constituent Assembly, they gave the example of Felix Frankfurter. He was a great professor and was taken from a university to the American Supreme Court; he was not a practising lawyer. What they really had in mind was an academic. If I look at the Indian scenario, Prof N R Madhava Menon or Prof Upendra Baxi would have been brought to the Supreme Court in that category. But that jurist can be anyone. Nariman has contributed greatly in the legal frame, he has written several books, perhaps in that sense he would know.

The absence of a non-legal person would give a sense of incompleteness; it should not be a closed-door affair for the legal community, there should be an eminent person, for instance, our past president A P J Abdul Kalam. There are many such eminent persons, who can be picked by the PM, Leader of Opposition and the Chief Justice of India.

Vandita Mishra: The debate is also about the executive versus the judiciary, which is an age-old tussle. Do you see the present as a special moment where there is a confrontation developing between the executive and the judiciary? Is the judiciary more on the backfoot and the executive more aggressive than in the past?

The real issue is, who will have the last word, who will be the custodian of the Constitution. The Supreme Court has said that the court will have the last word in any amendment. But then coming to narrower issues of appointments, who will have the last word? Judges say that judiciary will have the last word.

Vandita Mishra: The executive is more aggressive because of its majority. What about the judiciary, what is the special moment that the judiciary finds itself in today?

Very broadly, the judiciary is entering into several areas where it should not be. There is a tremendous expanse of the judiciary’s powers and then with the PILs, it is armed with so many weapons. It is becoming very powerful. With that, the scrutiny is becoming extremely focused by the media and several other bodies. One significant development was the decision of the collegium on Karnataka judges.

Rakesh Sinha: As the law minister in A B Vajpayee’s government, Arun Jaitley had moved an amendment for scrapping the collegium.

You are right. There were seven-eight proposals after 1993. And they gave different combinations. In some proposals, even the legislature was included, apart from the executive. In some proposals, it was completely judge-dominant. We are looking into all the proposals.

Maneesh Chhibber: At the meeting called by the government, one got the feeling that the general consensus was that the government should come up with a proposal, have at least one more round of talks with the stakeholders. But it appears the Cabinet is going to clear the Bill.

I distinctly remember Anil Diwan saying that, ‘Instead of holding such meetings, why don’t you draft a Bill and then come to us?’. That is a good idea.

Seema Chishti: Regarding the recent instance of the Delhi Assembly case being heard by the Constitution bench, should the court get into this at all? In an earlier instance, the court had said that the Jharkhand Assembly should have a session at 11.30 am.

I don’t want to make any comment on that. The argument being made is that it is clear the Delhi government is not going to be constituted (any time soon). But the Constitution gives power to the executive that the suspension can continue up to one year. To what extent is judicial review  permissible is a debatable issue.

P Vaidyanathan Iyer: We had Iqbal Chagla as our guest in Mumbai and he said that in the ’60s and ’70s, the Bar used to be very strong. At times it took up issues of corruption and stalled appointments. Do you think that today, there is nothing that the Bar stands up for?

A recent example is P D Dinakaran’s case — the Bar took up that case. I have seen lawyers acting as some sort of vigilance on wrong appointments. But their number is on the decline. The Bar should be more alert.

Vandita Mishra: What is your view on the mechanism of fast-track courts (for legislators)?

Let me tell you about the Law Commission’s report. The Commission felt that several previous committees disqualified a person if he was facing a serious criminal charge, punishable with five or more years in jail. The debate is, how can you expel a person when he is merely facing a charge; there is no determination. And there is misuse of this provision. Criminalisation of politics is a very serious issue. So if you believe that lawbreakers should not be lawmakers, then we need to have a system where we keep such people out. We went by the reasoning of the Supreme Court judgment in the CVC case that it is protecting institutional integrity.

There is a difference between filing a chargesheet and framing of a charge. We suggested three safeguards.
First, the charge should be framed at least one year prior to the elections. Second, such disqualification should not continue beyond six years. If within six years a person’s case is not decided, he or she should be allowed (to continue). Then we realised what happens if the charge is framed within one year and the person gets elected. Or what happens if the charge is framed after he is elected. In that context, we decided that the case should be decided within one year.

Vandita Mishra: So legislators should be singled out for fast-track, time-bound trial.

It should be done. That’s a deterrent.

Vandita Mishra: But some people would say that rapists should be singled out, not legislators.
In the case of rapists, it is already happening.

Aneesha Mathur: In your recent report you have mentioned fast-tracking, but you have also said that there may be a trade-off between the quality and quantity of judgments.
Most judges write bad judgments. It should be properly administered justice and in the name of fast-tracking you should not be affecting the quality.

Rakesh Sinha: A lower court judge in Madhya Pradesh recently wrote to the Chief Justice of India saying a high court judge was exploiting her and that she was forced to resign.

It is a very serious complaint and if it is found true prima facie on inquiry, then the logical step would be to withdraw the judicial person, and initiate impeachment proceedings.

Transcribed by Vandana Kalra & Debesh Banerjee

Needed: Dialogue, statesmanship

judiciaryBY FALI S NARIMAN PUBLISHED IN THE INDIAN EXPRESS

Because we cannot risk another judicial decision on appointments, writes FALI S. NARIMAN.

In the Constitution of India, 1950, the appointing authority for judges in the higher judiciary is the government of India, acting in the name of the president of India. Judges of the Supreme Court are appointed after consultation with the chief justice of India (CJI) and other judges of the Supreme Court (or high courts) as the appointing authority deems necessary for the purpose; judges of high courts are appointed after consultation with the CJI, the governor of the concerned state and the chief justice of the concerned high court. This simply worded prescription — expressed in Articles 124(2) and 217(1) — worked well in practice for the first two decades. By convention, whosoever the CJI recommended as judge was, almost invariably, appointed; whom the CJI did not recommend was not appointed.

But in 1981, in the S.P. Gupta case, much later known as the “first judge’s case”, a bench of seven judges of the Supreme Court presided over by Justice P.N. Bhagwati held (4:3) that the recommendations of the CJI for judges to be appointed in the higher judiciary were, constitutionally, not binding on the government of India. The (Congress) government, then in office, was delighted. It was now payback time. So when Bhagwati assumed office as CJI, the Congress government, still in office, declined to appoint judges recommended by him, since it was he who had judicially declared (in the S.P. Gupta case) that “consultation” in Article 124 did not mean “concurrence”.

It was much later, with the accumulated experience of the deleterious consequences flowing from the majority judgment in the first judges case, that new faces on the bench decided to take a “fresh look” at Article 124(2). In what has now become known as the “second judges case” (1993), a bench of nine judges held (by a majority, 7:2) that a collegiate opinion of a collectivity of judges was to be preferred to the opinion of the CJI. It also said that if the government did not accept the “recommendation” of the “collegium” (then consisting of the three senior-most judges), it would be presumed that the government had not acted bona fide.

Even after the judgment in the second judges case, recommendations made by the collegium were not made in the spirit in which the new doctrine had been propounded, since the collegiate of the three highest constitutional functionaries (the senior-most judges of the court) could not see eye to eye in the matter of appointment of judges to the higher judiciary. So when (again, by convention) the then senior-most judge, Justice M.M. Punchhi, became the CJI in January 1998 and recommended, with the concurrence of his two senior-most colleagues, that a particular list of five named persons be appointed to fill the vacancies in the highest court (all strictly in accordance with the methodology laid down in the second judges case), the government took exception to some of the names — justifiably, according to disinterested and knowledgeable persons.

But the CJI was adamant. When the government said that some of the names suggested could be accepted, but not all, the CJI said: “It will be all or none.” Apprehending the initiation of contempt proceedings, the government of the day (the NDA government with the BJP in the driving seat) thought it expedient to seek a presidential reference under Article 143 of the Constitution for the advisory opinion of the Supreme Court on certain dicta expressed in the second judges case.

All that ultimately happened after the presidential reference was that the collegiate was enlarged (by judicial diktat) from three to five of the senior-most justices, perhaps on the principle that there was greater safety in larger numbers. Meanwhile, Chief Justice Punchhi demitted office since he had reached the constitutional age of retirement. His successor, along with the four senior-most justices in the collegium, recommended names of appointees, which were accepted. This shows (it is said) that the collegium system worked. The response of lawyers has been, “Yes, but not always in this manner.”

The truth is that the system of recommendation for judicial appointments by a collegium of the five senior-most judges (like that of the three that went before) is not institutionalised: no mechanism is prescribed (by the collegium itself), no office is set up, no data gathered in advance, no criteria evolved as to who among the high court judges — all aspirants to a place in the Supreme Court — should be recommended. There is no reason given as to why a broad consensus among all the justices of the Supreme Court is not to be preferred to the views only of the five senior-most.

The entire system operates ad hoc, based on no principle. And the choice of judges to be recommended has varied in quality with the collegium’s fast-changing composition. The system has failed, according to me and many others. But in the opinion of the judges, including a succession of chief justices of India, it has not. More importantly, the BJP government that is now in office had, as part of the NDA government in 1998, categorically informed the nine-judge bench hearing the presidential reference that it was not seeking a review of the judgment in the second judges case — the judgment that first initiated the novel idea of a “collegium” of senior-most judges.

In this situation, what would be the right thing to do? I believe that before embarking on the new experiment of a broad-based National Judicial Commission, even one loaded with a majority of sitting judges as members, it is imperative that there should be meaningful dialogue between the executive and the collectivity of all the judges of the Supreme Court (represented by its chief justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is the need of the hour, because we cannot risk another judicial decision. The executive, the judges and the lawyers must resolve to avoid, at all cost, a fourth judges case.

The writer is a constitutional jurist and senior advocate to the Supreme Court

A case for two commissions

carBY T R ANDHYARUJINA PUBLISHED IN THE INDIAN EXPRESS

There is now a consensus amongst judges, lawyers and legislators that the present system of appointment of judges to superior courts by a collegium of Supreme Court judges requires to be changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to be appointed by the president after consultation with the chief justice of the Supreme Court and other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the president in consultation with the chief justice of India (CJI), the governor of the state and chief justice of the high court for the appointment of judges to high courts.

In 1981, in what is known as the first judges’ case, the Supreme Court held that the power of appointment of judges of the superior courts resided solely and exclusively in the president, that is, the Central government, subject to full and effective consultation with the constitutional functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the second judges’ case, professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges. The president would only have the limited power of expressing his doubts on the recommendation of the CJI. The president’s doubts would not however prevail if the CJI reiterated his recommendation on the appointment of the judge. In a later judgment, known as the third judges’ case, the Supreme Court diluted the primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his senior-most colleagues.

The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium. “Consultation” with the CJI in the Constitution has been transmuted into an original power to appoint by the CJI and a collegium. The Constituent Assembly’s view at the time of enacting the constitutional provisions, that the CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction in the world do judges appoint judges.

Even if the collegium’s method for the appointment of judges has no foundation in the Constitution, it could have been excused had the system worked satisfactorily, but unfortunately, for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is secretive. The public is not aware of the selection of a judge until his name is forwarded to the government by the collegium. Second, there have been instances of judges being selected or not selected due to favouritism or prejudice of members of the collegium. Third, selection on competitive merit of the appointees is discarded and judges are generally appointed to the Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma, principal author of the second judges’ judgment, later admitted that the collegium system had failed.

Should the earlier system of the exective appointing judges after proper consultation be restored? Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court were appointed through this system. Eminent judges like Michael Kirby of the Australian High Court are strongly in favour of restoring the old system, with control over it by Parliament. It was only during the period of the Emergency that this system was subverted, which led to the judiciary appropriating the power in the second judges’ case. Even today, in Australia and Canada, it is the executive that appoints judges after proper consultation.

To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the Constitution. Such a change requires careful consideration and evaluation of the system. It is important to know that, except for the judicial appointment commission of the UK introduced by the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The South African constitution provides for a judicial appointment commission, but its working is far from satisfactory and at times appointments have been influenced by the government. The same is true of judicial appointment commissions in other states in Africa.

If the JAC is to be introduced in India, its composition should be made part of the Constitution itself and not left to ordinary legislation by Parliament. There should be proper representation of members, including of the legal profession, in the JAC. The JAC will be over-stressed and overworked if it has to make appointments for 31 judges to the Supreme Court and over 800 judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the commission, would have to work in the commission to the neglect of their primary judicial duties of hearing and deciding cases. There ought to be two separate judicial commissions, therefore, one for the Supreme Court and the other for the high courts. The JAC for high courts ought to

be composed of retired judges of the Supreme Court or high courts, in addition to other members. In the UK, there are separate selecting bodies for high court and for supreme court. The overriding factor will be the merit of the candidate, but the commission, as in the UK, should consider diversity, namely, appointment of women judges and judges of various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and extensive consultation with all sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be made. It is to be hoped that such consultations will be continued before a legislation is introduced. The collegium system has not worked, but we should not have a situation where we jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India