May 16

Rehan Abeyratne: Judicial Appointments and Administrative Law in India

Appointments to the higher judiciary in India have long been fraught with controversy. The Indian Constitution empowers the President of India, after consultation with the Chief Justice and select other judges, to appoint justices of the high courts and Supreme Court. However, over a series of cases in the 1980s and 90s, the Supreme Court created a “collegium” of senior justices to have the final word on judicial appointments. The collegium system has been criticized in recent years for cronyism, corruption, and a lack of transparency.

In response to these criticisms, and to restore institutional balance to the appointments process, India’s Parliament amended the Constitution and enacted legislation creating a National Judicial Appointments Commission (“NJAC” or “Commission”) in 2014. The NJAC would replace the collegium in recommending nominees to fill vacancies in the high courts and Supreme Court, and in transferring judges among the high courts. It comprised six members: three Supreme Court justices (including the Chief Justice), the Union Minister of Law and Justice, and two “eminent persons” from civil society.

Before the NJAC’s work could commence, the Supreme Court in late 2015 invalidated both the constitutional amendment and legislation that created it. The Court’s principal holding in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 4 SCC 1 (“NJAC case”) was that by removing judicial primacy in the appointments process – only three out of the six of the Commission’s members were judges – the NJAC infringed upon judicial independence, which comprises part of the inviolable basic structure of the Constitution. Many commentators, myself included, have criticized this ruling on both constitutional and empirical grounds, but there is an administrative law component in this judgment and in the broader debate on judicial appointments that has not received as much attention.

Article 124C of the Constitution, which was inserted by the impugned constitutional amendment in the NJAC case, provided that Parliament could regulate appointment procedures and that the Commission would have rulemaking authority. Thus, Parliament enacted the National Judicial Commission Act, 2014 (“NJAC Act”), which explicitly empowered the NJAC to issue regulations to “carry out” the Act’s provisions. All of this is unremarkable. It is axiomatic that, when drafting legislation, Parliament cannot specify every operational detail or anticipate precisely how a law might function in practice. It has neither the institutional capacity nor the clairvoyance to do so. Legislative gaps, therefore, are filled through rulemaking, which is delegated to the relevant agency or commission that has the expertise to effectively discharge this function.

Yet, these elementary principles of administrative law were ignored in the NJAC case. The Supreme Court was not willing to accept that some details would not be specified in the legislation and would be left for the Commission to determine. The most glaring example is with respect to the two “eminent persons” that would participate in the judicial appointments process. Justice Khehar, who authored the principal opinion in the NJAC case, noted that the qualifications for these individuals were not specified in the constitutional amendment or the NJAC Act. Given their importance – they constituted one-third of the NJAC and had the power to veto judicial nominations – he ruled that the absence of qualification requirements rendered the provisions on “eminent persons” unconstitutionally vague. At oral argument, the Attorney General urged the justices to allow the Commission to begin operating and promulgate gap-filling rules before issuing a judgment on its constitutionality. His plea fell on deaf ears.

The Supreme Court bench in the NJAC case, apart from Justice Chelameswar in dissent, was also unwilling to take institutional criticisms seriously. Aside from charges of misconduct and corruption against particular judges, the collegium system as a whole suffers from a lack of transparency and efficiency. Judges are not transferred or elevated according to set criteria, leading to allegations of horse-trading and lobbying within the system. Moreover, the collegium has failed to fill hundreds of vacant judicial positions. India has long suffered from an overburdened judiciary in which a staggering four million cases are pending before the high courts. Leaving these courts understaffed only exacerbates the pendency crisis and institutional bickering has blocked many qualified nominees from assuming judgeships. A spat last year between former Chief Justice T.S. Thakur and Union Law and Justice Minister Ravi Shankar Prasad, in which they blamed each other for inaction on judicial vacancies, exemplifies this dysfunction.

While the NJAC might not have fully resolved these institutional tensions, it would have at least brought some procedural fairness to the appointments process that, in turn, would have increased transparency and perhaps eased the current logjam. Justice Khehar, who held the NJAC unconstitutional, was elevated to Chief Justice earlier this year and now leads the collegium. In an ironic twist, he and other justices in the collegium recently stated that they would develop basic criteria to govern judicial nominations. This is welcome news in light of the justices’ previous rejection of proposed reforms, including that the collegium members provide written reasons to support or oppose particular judicial nominees. Of course, had the NJAC been permitted to operate, such basic processes would likely have been in place for two years now. That it was denied such an opportunity speaks not only to the institutional prerogative of the judiciary to retain the appointments power for itself, but also to the broader judicial neglect of administrative law principles and procedural rules in India.

Rehan Abeyratne is a public law scholar whose research areas include comparative constitutional law, socioeconomic rights, and judicial independence. In August 2017, he will join the Chinese University of Hong Kong (CUHK) as an Assistant Professor of Law.