Push for reform in Indian judiciary appointments

The lack of transparency has come under scrutiny, writes Samanth Subramanian

NEW DELHI // India’s judiciary is under fire over its method of appointing judges to its highest courts after a former supreme court justice said political interference had forced the Madras High Court to retain an allegedly corrupt judge.

Eminent jurists met government officials last week to discuss alternatives to the so-called collegium system, by which India’s chief justice and the four seniormost judges of the supreme court appoint judges to the supreme court and high courts.

“The predominant view is in favour of changing the collegium system,” Mukul Rohatgi, the attorney general, said after the meeting on Monday. “The government will decide what to do next.”

The collegium’s lack of transparency has come in for particular scrutiny after the charges laid out by Markandey Katju, a former supreme court justice.

His accusations followed another judicial controversy involving a well-regarded lawyer who had his appointment to the Supreme Court allegedly blocked by prime minister Narendra Modi’s government.

India’s judicial system, slow as it is, is often seen as the strongest bulwark against the type of political corruption scandal that helped propel the Congress party to its worst electoral defeat in May. But political meddling in judicial appointments can kill corruption cases or exonerate politicians who might otherwise be found guilty.

Mr Katju wrote on his blog recently that the Intelligence Bureau, India’s domestic intelligence agency, had supposedly found evidence that a Madras High Court additional judge was involved in corruption.

Mr Katju gave no further details in his allegation, but in a subsequent post he identified the judge as S Ashok Kumar, who died in 2009.

Kumar never faced prosecution for corruption.

Mr Katju claimed that Kumar’s term was renewed in 2005 because he had once granted bail to a prominent Tamil Nadu politician, whose party was a key member of the ruling coalition in the federal government.

According to Mr Katju, the Congress, the ruling party at the time, pressured India’s chief justice to extend Kumar’s term.

India’s constitution originally prescribed a crucial role for the country’s president in appointing judges, by suggesting or evaluating candidates.

But the judiciary has evolved the collegium system over the past two decades, building upon three landmark cases to emphasise the principle of judicial independence.

The collegium gives the judiciary more power over appointments, but it works within a bubble, so its deliberations can often lack formality and transparency.

“Behind the scenes, there’s a lot of lobbying,” said VV Sivakumar, a Chennai-based partner at the law firm Dua Associates who practises in the Madras High Court.

“Complaints about candidates are sent anonymously. There’s a lot of politicking. People go to politicians begging to be considered, and the politicians then influence the selection process.”

Although there are no defined eligibility criteria, candidates for the bench are always well-regarded lawyers. Politicians cannot formally sack or promote judges but, as Mr Sivakumar said, they frequently influence such decisions behind the scenes.

Just as political interference can promote favourable judges, it can also stymie the appointment of judges who may be hostile to politicians.

In mid-June, a lawyer named Gopal Subramanium withdrew as a candidate for the supreme court, following reports in the press that Mr Modi’s government was opposed to his nomination.

In a nine-page letter to the supreme court chief justice RM Lodha, Mr Subramanium, who once served as India’s solicitor general, said he was “dismayed” to learn that the law ministry had refused to clear his nomination, even as three of his peers were approved.

“The events of the past few weeks have raised serious doubts in my mind as to the ability of the Executive Government to appreciate and respect the independence, integrity, and glory of the judicial institution,” Mr Subramanium wrote.

Although the collegium could have overruled the government’s rejection, Mr Subramanium withdrew his consent to be nominated.

He claimed he was being targeted because he participated in the prosecution, as an amicus curiae, of Amit Shah, Mr Modi’s closest aide. When Mr Modi was chief minister of Gujarat, Mr Shah was accused of ordering the extrajudicial killing of a terror suspect.

In a speech this month, Mr Lodha called the government’s unilateral deletion of Mr Subramanium’s name “not proper,” and said the collegium should have been consulted. He maintained, however, that the independence of the judiciary had not been compromised.

Prominent jurists have frequently suggested replacing the collegium with a judicial commission, which would compel the chief justice and his colleagues to consult the president, the law minister, and a nominee of the prime minister in appointing supreme court judges.

State-level commissions would appoint high court judges.

A Judicial Appointments Commission bill to reform the collegium ststem along these lined was introduced in parliament in August 2013, although it has not as yet come up for extensive debate.

But Mr Sivakumar wondered whether that would merely institutionalise political interference in judicial appointments, rather than minimise it.

“I dread to think of a situation where a would-be judge is asked to delineate his stand on some controversial issue, to see if he falls in line with the government’s ideology or not,” he said. “To my mind, that’s worse, and I’d prefer the system as it is today.”