Gist of The Hindu: October 2014
Of fact, procedure, and principle
The practice followed by the collegium of the higher courts,
before a candidate is recommended for elevation and a panel of names is sent to
the government for appointment, is as follows. The Chief Justice initiates a
consultation with the legal fraternity. Speaking in confidence to senior
advocates and fellow judges, to both the bar and the bench, a long list of
possible candidates for elevation is prepared. Based on these recommendations
the Chief Justice then invites the candidates to determine their willingness to
be considered. If the candidates are willing then they are required to furnish
details about themselves, such as their contributions to the law especially with
respect to important cases, the extent of their legal practice, their annual
income, their legal history, etc. These details are then processed by the court
administration, during which time, I suppose, the court gets inputs from
relevant investigating agencies about whether they have any legal proceedings
against the candidate, etc. other inputs that may make them ineligible for
consideration.
Based on (i) the recommendations of the legal fraternity,
(ii) the willingness of the candidate, and (iii) the hard data relating to the
legal practice and public standing of the individual, the file is placed before
the collegium. The collegium then scrutinises the information on record and,
based on the highest standards of judicial scrutiny, arrives at a decision on
whom to recommend and whom to ignore, from the names before it. Not every name
that comes up through this process gets the approval of the collegium. The
shortlist prepared by the collegium is then sent up to the government for its
approval. This I am told is the standard process that is followed. Gopal
Subramanium’s case, I suppose, went through the same process.
The principle for such empanelment was enunciated by the
Supreme Court in the case of P.J. Thomas, nominee for the Central Vigilance
Commission (CVC), whose candidature was rejected in 2011 when it described in
detail the process to be followed in the appointment to a position of authority.
Appointments to the Supreme Court, I expect, fall into this category. Here is
what the judgment said — (vi) The empanelling authority, while forwarding the
names of the empanelled officers/persons, shall enclose complete information,
material and data of the concerned officer/person, whether favourable or
adverse. Nothing relevant or material should be withheld from the Selection
Committee. It will not only be useful but would also serve larger public
interest and enhance public confidence if the contemporaneous service record and
acts of outstanding performance of the officer under consideration, even with
adverse remarks is specifically brought to the notice of the Selection
Committee. (vii) The Selection Committee may adopt a fair and transparent
process of consideration of the empanelled officers.
Assuming complete information was available to the collegium,
we now have to consider the contrasting positions of the collegium and the
government. Based on the same facts considered by the collegium, the government
is at liberty to give an alternative reading and argue for the unsuitability of
a particular candidate. This is legitimate since the political lens of the
government may be at variance with that of the collegium. The disagreement, at
this stage, has to be on political grounds and not on facts. The procedure then
requires the government to place its disagreement before the collegium which can
either restate its earlier recommendation or revise it in the light of the
arguments made.
This second stage is constitutionally sacrosanct since
contained in it is the core principle of the separation of powers. The collegium
has to deliberate on this contrary opinion of the government and decide whether,
by accepting or rejecting it, the independence of the judiciary is eroded or
enhanced. Both parties must give clear reasons for their positions so that the
final decision taken can educate the public on the core issue of separation of
powers. The government’s reasons and the collegium’s views, as well as the facts
of the matter, should be made public to serve, as the Supreme Court in the P.J.
Thomas case said, the larger public interest.
Three basic issues for our democracy emerge from this controversy. The first is
the issue of public attitude. Are we prepared to let it lie, to blow over
because another headline has grabbed its place or are we prepared to interrogate
it further? This is not a partisan issue, of UPA versus NDA, since it perhaps
points to a growing disregard for our constitutional culture. When the
confidentiality of the collegium’s recommendation is treated lightly, when the
intelligence reports are leaked, when the President’s confidential actions are
public knowledge, we have reason to be concerned about the disregard for
constitutional propriety. Will those who leaked information be punished to
restore the sanctity of the process? Or are we moving toward what Paulo Friere
calls the “culture of silence”?
The second issue concerns the doctrine of separation of
powers. By segregating the names, did the President give primacy to the
executive over the judiciary? Was this a question of political expediency
trumping constitutional principles? With whom should the final decision, on who
should be elevated, lie? The executive or the judicial fraternity? Since the
Emergency, when it had touched its nadir, our democracy has been struggling to
restore the balance between the executive and judiciary.
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The Court of Chief Commissioner for Persons with Disability has directed the
Union Public Service Commission (UPSC) to withdraw its “discriminatory performa”.
It has directed the UPSC to refrain from asking differently-abled people to
submit photographs showing their disabilities and to consider the ‘permanent
disability certificate’ issued from a government hospital as a valid proof.
In
a major relief for civil services aspirants from Jammu and Kashmir, the
Government has extended till next year-end the upper age limit relaxation for
the residents of the state to take the examination.
