The Lessons From a Court Appointment Drama
Introduction:
- The appointment of L. Victoria Gowri to the Madras High Court was contentious. After the collegium nominated her for the job, a petition objecting to her nomination as a judge was submitted to the Supreme Court (SC) on the grounds that she had allegedly used “hate speech” against religious minorities.
- New information was accepted by the SC collegium, which is chaired by the Chief Justice of India (CJI), but nothing could be done about it because the nomination process had already ended. A last-ditch judicial challenge to stop it was rejected by two additional Supreme Court justices.
The opacity problem:
- A recent verbal battle between the higher judiciary and the political leadership has focused on who has the ability to choose judges for the High Courts and the Supreme Court of India. Under the “collegium system,” which was established as a result of a 1993 Supreme Court judgement, the three senior-most Supreme Court judges make recommendations for appointments to High Courts (known as “The Second Judges Case”). The government is technically compelled to accept recommendations, even though it is permitted to make comments and ask for a reconsideration.
- The discussion brings to light several persisting structural problems with the selection of judges. The first problem is opacity. Even though the specific processes vary, they are all open to the public, according to comparisons made between the collegium’s operation and judging nominations in other democracies like the US, South Africa, or Kenya. The public in each of these jurisdictions is already aware of the names of the judicial candidates before the official commencement of the selection process.
- In such a situation, facts would inexorably come to light and be made known to the selecting bodies, including Ms. Victoria Gowri’s statements. The selection authorities would evaluate them given that these jurisdictions demand that judicial applicants provide answers. The discussion would be place in public, and the candidate would be questioned about the remarks as well as their justification and connection to her judicial philosophy. At the end of the process, the selecting body would make the choice.
- However, in India, upon the collegium’s selection, the candidate’s identity is effectively made public. The selection procedure is conducted behind closed doors with participation from both the collegium and the government (through the Intelligence Bureau).
- The government can easily withhold pertinent information from the collegium when it approves of a particular candidate, so this not only has transparency costs but also asymmetrical costs as well (in fact, this is the only possible inference from the CJI’s observations about the allegations of hate speech).
- This results in circumstances like the one we’re in right now, where the choice has already been made when a candidate’s name first comes to public attention, allowing the public to notify the collegium of important facts.
- Another unfavourable outcome of this is that the government can move the process along fast after choosing a candidate because it still has the power to make formal appointments (as happened in the present case). In other situations, the government may also employ a pocket veto (which it has also done with respect to the Madras High Court, by refusing to appoint a judge in the teeth of an express direction by the collegium).
- The second issue is directly connected to the initial issue. After a collegium recommendation has been issued, there is only one way to overturn it: in court. There are a variety of issues that arise because the collegium, which comprises of the three (or five) senior-most Supreme Court members, must be challenged in front of their own junior colleagues (and these colleagues will be assigned the case by the CJI, who is himself the head of the collegium).
- Although all administrative actions are subject to judicial review and the collegium technically acts as an administrative body in recommending a name, the problem with judges being asked to preside over their own senior colleagues is immediately apparent.
South Africa as an illustration:
- This is not required. Take South Africa as an example, where the judicial appointments panel’s procedures are currently under judicial review and the commission has been instructed by the courts to make its deliberations public.
- Although the appointment process in South Africa is not perfect, it does contain a system of checks and balances that is based on the guiding principles of transparency and publicity. There must be some level of separation between the court and the judicial appointments commission in order to allow for a check and a remedial mechanism in the event of mistakes and errors.
- However, when the Supreme Court, which serves as the body for judicial review, the collegium, and the CJI’s office are all essentially the same while attempting to carry out multiple tasks that are unique from one another, correction becomes extremely difficult.
Eligibility versus suitability:
- In addition, the judges contended that the only factor they could consider in the judicial review of L. Victoria Gowri was her eligibility, not her fitness. This is the proper approach, leaving aside the problem of whether alleged hate speech is a matter of eligibility or suitability, provided that the issue of suitability was fully taken into account during the selection process.
- Because the procedures are secret and it is the only other party, the government has the potential to sway the information used to determine “suitability.” This brings up the issue of the collegium’s problematic structural opacity and how it benefits the political executive once more.
- Once the collegium has made its choice and the names have been made public, the question of “suitability” has also been resolved (allowing for the disclosure of additional information). How profoundly this undermines judicial independence ought to be obvious.
The root of the problem:
- For the reasons outlined above, it was evident that there would be no going back after the collegium’s proposal was issued, regardless of the preferences and objectives of the individual actors involved. The court’s decision to reject Ms. Victoria Gowri’s appointment challenge served as a warning of impending failure.
- But taking a step back from the particular actors in this drama, it’s important to recognise that the underlying cause of the issue is the design of our judicial nomination process. Because it asymmetrically favours the political executive, the current system is ineffective both in theory and in practise.
Conclusion:
- We require a judicial nomination process that genuinely safeguards judicial independence from presidential control.
