Friday, September 13, 2013

Some thoughts on the Judicial Appointments Commission

As Nick points out in his post, the proposed Judicial Appointments Commission (“JAC”) has generated a great deal of debate. In this post, I make two arguments: first, irrespective of its composition, the JAC will not be able to substantially affect the structural independence of the judges of the Supreme Court of India; instead, the JAC will be able to affect the independence of High Court judges; second, in the light of the court’s history, it is highly unlikely that the JAC will fundamentally alter the character of the typical candidate appointed to the Supreme Court of India:

1. Independence of the Judiciary:

To my mind, irrespective of the composition of the JAC, the JAC will most likely not be able to affect the structural independence of the Supreme Court. It must be remembered that when a judge is appointed to the Supreme Court of India, s/he holds office not during the “pleasure” of the government (or the JAC) but during “good behavior” – a doctrine which predates even the constitution [“good behavior” was finally introduced in India formally under the Government of India Act, 1935, though it was a formal principle in the UK since the Act of Settlement in 1701]. A Supreme Court judge in India can only be removed for “proved misbehaviour or incapacity” [Art. 124]. Even under the Indian High Courts Act, 1862 (i.e., even during the British Raj), a judge’s compensation could not be altered to his disadvantage after his appointment. Under the constitution [Art. 125], a Supreme Court judge’s privileges and allowances can’t be altered to the judge’s disadvantage after his appointment. In short, a Supreme Court judge has security of tenure and reasonable security of compensation: two of the most basic features of judicial independence.

However, there are two ways in which a government can potentially interfere with the independence of a Supreme Court judge: first, by superseding independent judges (e.g. what was done to Justices Shelat, Hegde, Grover, and Khanna); second, by not giving independent judges post-retirement jobs. The establishment of the JAC will not make a difference to either of these two mechanisms. The “seniority norm” is a deeply entrenched part of our constitutional history since independence, and given what happened during the Emergency, it is unlikely that our political culture will ever allow any government (or a JAC) to supersede an independent judge again. Post-retirement jobs are anyway controlled by the executive government at the moment, so the establishment of the JAC doesn't make the judges of the Supreme Court any worse off on this count.

One might argue that if the JAC has a majority of executive members on it, it may be able to appoint “committed” or pliant judges to the Supreme Court. While this is possible, it is also true that most of the judges appointed to the Supreme Court of India before the collegium system came into being, were staunchly independent of the executive. After all, judges like Vivian Bose, Subba Rao, Hidayatullah, Krishna Iyer, and even H.R. Khanna, were not appointed under the collegium system.

In short, the JAC will not be able to affect the independence of the judiciary at the Supreme Court level. Debates about the JAC, therefore, should focus on how its establishment will affect the independence of High Court judges. This is because the JAC will be able to decide whether a High Court judge gets “promoted” to the Supreme Court – as such, it will have the power to penalize or reward an independent High Court judge, though it will not be able to penalize or reward an independent Supreme Court judge.

2. Composition:

Will the JAC make a radical change to the type of candidate one sees on the Supreme Court of India? I’m skeptical that we will see a tremendous change in the background of the typical candidate appointed to the Supreme Court after the JAC. In my thesis at Stanford (a summary is available here), I found that there were three informal eligibility criteria used to appoint Supreme Court judges: age, seniority, and diversity.

The first criterion is that a judge should be of the age of 55 or above in order to be appointed to the Supreme Court – this is entirely a product of the collegium system, and it might change under the JAC. Even so, the youngest judge to be appointed to the Supreme Court of India was Justice Bhagwati, who was appointed, before the collegium system, not in his 30s like Joseph Story, but at the age of 51. Therefore, even if the JAC is set up, we are unlikely to see judges appointed to the Supreme Court in their 30s or 40s, though we may start seeing judges occasionally being appointed in their early 50s once again.

The second criterion is that only High Court Chief Justices (or, in exceptional cases, the most senior judges of High Courts) are eligible to be appointed to the Supreme Court. The emphasis on seniority has become stricter under the collegium’s watch. Earlier, far fewer Supreme Court judges were High Court Chief Justices, but now, an overwhelming majority of Supreme Court judges are High Court Chief Justices. However, it is highly unlikely that the JAC will abandon seniority altogether. Even before the collegium system, judges who were elevated to the Supreme Court were usually relatively senior judges on their High Courts. For example, Justice A.N. Grover, a puisne High Court judge who was appointed to the Supreme Court in 1968, was third in seniority in the Punjab High Court [Gadbois, Judges of the Supreme Court of India, p. 134]. It is therefore likely that the JAC will continue to use seniority as a criterion in appointing judges, though perhaps not as strictly as the collegium uses it at present.

The third criterion is that judges should reflect the regional (and demographic) diversity of India. This is a criterion which predates the collegium. Even before the collegium came into being, judges on the Supreme Court came from the different regions of India (a judge is said to belong to the High Court where s/he was first appointed, irrespective of place of birth, residence, or mother tongue). Despite the coming into being of the collegium system, diversity continued to be a criterion for judicial appointments to the Supreme Court. The establishment of the JAC will not obliterate this criterion, though priorities on diversity may change, i.e. religion, caste, and gender might rise in importance. For example, we may see more Muslim judges being appointed to the Supreme Court in the coming years (where only 2 out of 50 judges appointed to the court in the 2000s were Muslim judges). 


However, the JAC might be able to change a few incidental features of the court’s composition. If the JAC is set up, for example, we may see a “bar judge” being appointed to the court, on occasion. Since Justice Santosh Hegde retired in 2005, no lawyer has directly been appointed to the Supreme Court of India. Even before the collegium came into being, however, only 3 out of more than 100 Supreme Court judges were lawyers directly appointed to the Supreme Court. Thus, while it is highly unlikely that we will see a substantial number of lawyers being directly appointed to the Supreme Court bench as a result of the setting up of the JAC, we may perhaps see one lawyer (perhaps two) being directly appointed to the Supreme Court in this decade. Under the JAC, we might even see a bar judge become the Chief Justice of India by the seniority norm (Chief Justice Sikri is the only such judge so far), though this is quite unlikely after the Kuldip Singh-Ahmadi episode of the court’s history. Likewise, the JAC may decide to appoint a “distinguished jurist” to the court: a result which the collegium system seems unlikely to deliver.  

In short, even if the JAC comes into being, it is highly unlikely that we will see 10 full-time law professors, transactional lawyers, or even practicing lawyers at the Bar, in their 40s, being directly appointed to the Supreme Court. My guess is that the fundamental character of the composition of the court will remain the same.

7 comments:

Nick Robinson said...

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

Vasujith Ram said...

Dear Abhinav,

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

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

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

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

Abhinav Chandrachud said...

Many thanks Nick. I agree that the JAC could appoint judges with a strong track record of deciding major cases in favor of the government, but I feel that this would do more damage at the High Court level than at the Supreme Court level:
Once a person is appointed to the Supreme Court s/he has no incentives to decide cases either in favor of or against the government by virtue of the JAC. However, if the JAC gets a reputation for appointing pro-government judges to the Supreme Court, a High Court judge has incentives to decide cases in favor of the government in order to attract the attention of the JAC and to cultivate the idea that s/he is a pro-government Judge – which I think is more worrying than what the judge might or might not do once on the Supreme Court (where the judge can always change his/her mind, since there are no incentives to decide either in favor of or against the government to please the JAC).
I would argue that how a judge decides major cases at the High Court level is only a rough indication of how s/he might decide cases on the Supreme Court. Once a judge with a strong track record of deciding major cases at the High Court in favor of the government is elevated to the Supreme Court by the JAC, nothing stops the judge from deciding cases independently (and against the government) on the Supreme Court. There’s an emerging literature about how a person’s background doesn't necessarily predict her voting pattern as a judge on a court. I can think of one example: there was a practice occasionally followed in India (modeled on England) where the Advocate General of a province would be appointed to the Chief Justiceship of a High Court: e.g. Sir Basil Scott, Advocate General of Bombay, was directly appointed Chief Justice of the Bombay High Court. Being government lawyers, one would have assumed that such judges would have had pro-government biases, but the literature (and my own research) suggests that such judges went on to decide cases quite independently of the executive. In the 1970s, 7 judges were appointed to the Supreme Court of India by the Indira Gandhi government (handpicked by cabinet ministers Kumaramangalam, Ray, or Gokhale) to decide the basic structure case in favor of the government [Granville Austin, Working a Democratic Constitution, p. 269] - one of these judges was HR Khanna, who sided with the majority, probably contrary to what the government expected. On the U.S. Supreme Court, John Roberts comes to mind – though he was appointed by a Republican President, he upheld Obamacare, deciding independently of the Republican view. I think the point is that the JAC system would not prevent a Supreme Court judge with a pro-government background on the High Court from changing his mind and deciding against the government once on the Supreme Court.
In short, I feel that a bad JAC can do more structural damage at the High Court level than at the Supreme Court level.

Abhinav Chandrachud said...

Vasujith, thanks for your comments.

Re (1): Even when H.R. Khanna was superseded, the reason given for his supersession was that he would serve a very short term in office as CJI. We need to be very skeptical when short tenure is cited as a justification for the supersession of a judge, given how this justification has been used as an eyewash in the past. A JAC which supersedes judges for the post of CJI must do so on an objective basis (e.g. a norm can be evolved that no judge who has less than 6 months left to retire will be appointed CJI). Of course, we don't necessarily need a JAC to institute this change.

Re (2): the 7 judges you mention who were appointed just before the Basic Structure case were: Palekar, Khanna, Mathew, Beg, Dwivedi, Mukherjea, and Chandrachud (Roy was appointed but he passed away). For obvious reasons, I’m not the most objective person to comment on some of these judges. However, note that the great H.R. Khanna was one of these 7 judges, appointed at a time when the government wanted to pack the court with committed judges: how wrong the government must have been in its assessment of Khanna! Khanna sided with the majority in the Basic Structure case. Likewise, when Krishna Iyer was appointed to the Supreme Court, Gadbois says that his appointed was greeted by a “chorus of boos” because it was believed that Kumaramangalam was his patron. Krishna Iyer became one of the greatest judges the court has ever seen. The short point is that a judge’s past is not necessarily a great predictor of how s/he will vote on the court: what’s important is that the judge should structurally be independent from the executive, and the JAC system will not affect the structural independence of the Supreme Court.

Re (3): I agree that our political system has vastly changed since the pre-collegium era. However, even at a time when we had a strong executive government, and an executive desire to appoint “committed” judges, judges like H.R. Khanna, P.N. Bhagwati, and Krishna Iyer, were appointed to the Supreme Court bench. In today's weaker political context, it would be that much more difficult to appoint "committed" judges. So long as Supreme Court judges have security of tenure and compensation, there’s little that a JAC can do to affect how the judge will vote in cases on the court.

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Mangesh Patwardhan said...

Abhinav,

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

Abhinav Chandrachud said...

Thanks Mangesh. Analogies to the U.S. Supreme Court might be apt here, because they bring out the point I’m trying to make. I think everybody agrees that judges in the U.S. are appointed in a partisan manner, and that judges have political/ideological biases. Yet, despite harboring those biases, nobody would argue that the judges of the U.S. Supreme Court are not structurally independent of the other branches of government once appointed. After Alexander Hamilton’s Federalist No. 78/79, it has repeatedly been argued in the literature that there are two ingredients for a court to be independent: good behavior and compensation: which are enshrined in the “Good Behavior Clause” and “Compensation Clause” in Art. III, Section 1 of the U.S. Constitution. Both are a part of India’s constitution too (though it’s the privileges and allowances of Indian judges which can’t be altered to their disadvantage). In the Indian context, I would argue that there are two additional features for the Supreme Court to be structurally independent of the executive: First, the “seniority norm” (i.e. Supreme Court judges should not be overlooked for promotion to the post of Chief Justice as a penalty for deciding cases independently). Historically, it is the seniority norm which was really used to control Supreme Court judges in India. Second, the phenomenon of post-retirement jobs needs to be seriously debated and thought through, because it has the potential to undermine judicial independence. However, the JAC system will not affect the structural independence of the Supreme Court of India. Yes, the court’s judges might perhaps come to the court with a more ideologically biased set of views (though that is debatable – given how judges like Khanna and Krishna Iyer were wrongly assessed by previous governments): but like the judges of the U.S. Supreme Court, though they may be ideologically biased, they will still be independent of the other branches of government so long as the seniority norm remains in place.

Let me make one point clear here: I am not defending the JAC system in its present form. My argument is that we need to pay far more attention to how the JAC system will affect the High Courts – because the JAC can do far more damage to the High Courts, which is dangerous and needs to be thought through. The JAC does affect the structural independence of the High Courts, which is a dangerous consequence, and so its composition is, for that reason, of the utmost of importance.