The last month was witness to several key developments in the Supreme Court. The court pronounced a judgment on the CJI’s powers as “master of the roster” on a petition filed by Asok Pande. An notice for an impeachment motion was moved against the CJI. The notice was rejected by the Chairman of the Rajya Sabha, with an order explaining his reasons. The government returned the recommendation of the Supreme Court collegium to make Justice KM Joseph a judge of the apex court. A second petition challenging the CJI’s powers as the master of the roster was heard and the judgment is awaited.
These seem like disparate and unrelated developments. The only common link has been that the wide-ranging public response has been of suspicion over the possible ulterior political motives behind the actions of all the relevant players.
Institutions can function by design or by default. The public response to these developments, it appears, is a natural consequence of the institution’s design being a product of moments of default. How can we step back and rethink the institution so that its function and evolution is fair by design?
Design from default
We framed our Constitution with a commitment to keep the judiciary independent from the executive (Article 50 of the Constitution), and for all power wielding authorities to be accountable and transparent. As the years went by, the question that often arose was whether the design of the judiciary would actually ensure such independence.
The judiciary has seen several such defaults, such as the transfer of 16 High Court judges by the President in consultation with the CJI during the Emergency, and the law minister’s letter to chief ministers requesting that consent be obtained from persons likely to be elevated to judgeship as well as from additional judges of their high courts, for appointment as judges and permanent judges respectively in other high courts. In this context, the Supreme Court had begun to confront the question whether judges could be transferred or appointed according to the will of or with the interference of the government.
The Supreme Court being the final and binding judicial forum for interpreting constitutional provisions, the law declared by the Supreme Court on the question of judicial appointments and transfers, in situations of default, became the design of the institution. It was this progression of cases that led to the Second Judges case in which it was held that a collegium of judges would hold primacy where there is a disagreement between the government and the judiciary on the appointment or transfer of judges. Most recently, the Fourth Judges case affirmed the “primacy of judges” norm, towards ensuring that the judiciary is independent of the executive by design.
Why a collegium?
The origin story of the collegium is illuminating to understand why the court fleshed out this institutional design the way it did. The court was mindful that constitutional authorities conferred with power, must function in a fair and non-arbitrary manner. In the words of Justice Kuldip Singh, who agreed with the majority judgement, (para 390-392 in the Second Judges Case):
“The constitutional scheme does not give primacy to any individual. …A bare reading of Articles 124(2) and 217(1) makes it clear that the Framers of the Constitution did not intend to leave the final word, in the matter of appointment of Judges to the superior Courts, in the hands of any individual howsoever high he is placed in the constitutional hierarchy. Collective wisdom of the consultees is the sine qua non for such appointments. …Once we hold that the primacy lies with the judiciary, then it is the judiciary as collectivity which has the primal say and not any individual, not even the Chief Justice of India. If we interpret the expression “the Chief Justice of India” as a “persona designata” then it would amount “to allow the Chief Justice practically veto upon the appointment of Judges” which the Framers of the Constitution in the words of Dr Ambedkar never intended to do. We are, therefore, of the view that the expressions “the Chief Justice of India” and the “Chief Justice of the High Court” in Articles 124(2) and 217(1) of the Constitution mean the said judicial functionaries as representatives of their respective courts.”
Explaining the reasoning, Justice Verma held (para 14 in the Second Judges Case):
14. …A further check … is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual.
The impulse of the court was that for power to be exercised in a fair and non-arbitrary manner, it must be diffused among a body of persons, and not concentrated in the hands of a single person. This impulse is not novel. It is a standard norm in democratic institutions that power be intentionally decentralised among various authorities, each of which has a stake in the successful functioning of the system as a whole. The idea is that when stakeholders are all conferred little bits of power, they will all exert checks on each other, and thus balance out any exertion of excessive power by one authority in the system. Even an honest and well-intentioned authority makes better decisions when answerable to all stakeholders in whom power has been dispersed. This is the reason we have two houses in Parliament, and also the reason law-making and governance responsibilities are shared between the central, state and municipal/local governments.
Of course, there are many reasons to question our attachment to the collegium system. One of them is that the weight and primacy accorded to the opinion of collegium is not the only means to insulate the judiciary from the will of the executive. Another is that a body that appoints judges needs to be more transparent and accountable to the public and those affected by its decisions. Both these concerns were noted in the dissenting judgment in the Fourth Judges Case. However, the crucial thing to note is that in the face of default, the ostensible effort of the court was (and should continue to be) towards building an institution that would exercise power in a non-arbitrary and fair manner.
Fairness by design
Judges, like other authorities in democratic governments, exercise power in multiple capacities. While the bulk of their work appears to the public to be the exercise of “judicial power” – the power to hear and decide cases and appeals – they are also responsible for running the institution of the judiciary. Behind the scenes, judges exercise “administrative power” by deciding when to appoint new judges to their own court, and whom to appoint as judges etc. The power of the Chief Justice to be consulted in the appointment of judges is, by nature, an administrative power. It was thus held to be a power conferred on a body of judges guided by the underlying idea that all exercise of administrative power must be non-arbitrary.
The Chief Justice of India also exercises administrative powers that are not conferred by the Constitution, but vest in the office of the CJI by virtue of long-standing practice. One such is the power to decide what cases must be listed before which judge- termed as the CJI’s power to be “master of the roster”. The court recently held that “the Chief Justice is an institution in himself”, “as a repository of constitutional trust”. Reasoning that “such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the court”, and that there “cannot be a presumption of mistrust” as the “oath of office demands nothing less”, it was held that “entrustment of functions to the Chief Justice as the head of the institution, is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty.”
One cannot help wonder how a Constitution that “excludes the scope of absolute power in any one individual” (per the Second Judges Case) can consistently permit “the Chief Justice to be an institution in himself” (per Asok Pande). Crucially, while the power of the Chief Justice of India to be consulted when judges are appointed is conferred by the Constitution itself, the power to allocate cases to judges was merely long-standing practice. This is important, as the Constitution is the founding, basic law, from which all other law-making bodies get their power to function. Therefore, any practices that have evolved in the Supreme Court must be in accordance with the Constitution, the Supreme Court being empowered by the Constitution to do what it does.
Yet, the Supreme Court held that the constitutional power to appoint judges would be exercised by a plurality of judges, not the Chief Justice alone, while the non-constitutional administrative power to allocate cases would vest absolutely in the hands of the Chief Justice. If a power conferred by the Constitution, to which a presumption of constitutionality attaches, can be diffused among a body of judges to ensure its non-arbitrary exercise, an administrative power that has evolved from mere convenience and long-standing practice surely can be subject to some checks against arbitrary exercise.
The reasoning of the court in crystallising the Chief Justice’s absolute power to allocate cases to judges was that there can never be a presumption of mistrust, as the Chief Justice of India is under oath of office. However, it will be remembered that all judges are under an oath of office, and that institutions are designed on a presumption, not of mistrust, but rather of default. The reason citizens are empowered to vote ever so often is not a “presumption of mistrust” in our elected representatives, but as a safeguard against the ways power can be exercised by default, i.e. where there is no opposition. Indeed, the whole process of Constitution-making is a process of designing institutions to protect against situations of default, as even well-intentioned authorities make better decisions when they are answerable to a broader set of interests or stakeholders, whether from an “opposition” or not.
Whatever the political and partisan responses to the developments at the Supreme Court may be, it is high time we begin to take seriously Justice Verma’s words of caution that the “constitutional scheme excludes the scope of absolute power in any one individual.” We need to urgently think of ways to ensure fair and non-arbitrary exercise of power, by design. Decentralised power enables better decisions, even by the best decision-makers, by design.
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Updated Date: Apr 30, 2018 17:07:41 IST