Subject: Judiciary

Context

The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

Background

• The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
• These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
• The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

Government’s defence

• In response to the allegations made against it, the Government invoked national security.
• What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
• In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
• The cases also posed another hurdle: a contest over facts.
• The petitioners were asserting the occurrence of illegal surveillance.
• The Government was offering no explicit response to their claims.
• Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
• The Court has held that there is no magic formula to the Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.

Accountability on part of the government

• The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
• This is not to suggest that all surveillance is illegal.
• In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
• First, the action must be supported by legislation.
• Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
• Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
• Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
• The test provides a clear path to holding the Government accountable.

Way forward

• The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
•  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
• If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
• A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
• If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
• It is, therefore, unclear why we need a committee at all.
• Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

Conclusion

Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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Context

The Supreme Court of India has appointed a committee presided by Justice (Retd.) R V Raveendran to inquire into the Pegasus revelations.

Terms of reference

• The court’s terms of reference include queries on, “What steps/actions have been taken by the Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts”, and, “Whether any Pegasus suite of spyware was acquired by the Union of India, or any State Government, or any central or state agency for use against the citizens of India”.
• The constitution of this committee marks an important step towards accountability for the victims and the larger public on the use of Pegasus.

Significance of the committee on Pegasus issue

1) Transparency and disclosure

• The order of the court constituting the committee attains significance for three clear reasons.
• The first is the court’s continuing insistence on transparency and disclosure by the Union government.
• The only filing made in court by the government was a limited affidavit, containing short paragraphs of generalised denials and the sole annexure of a statement by the Minister for Electronics and IT before Parliament.
• Immediately, the Supreme Court pointed out that these are inadequate and provided further time.

2) The SC’s approach towards national security

• The second reason is the Supreme Court’s firm approach towards the national security submissions by the Union government.
• The court correctly applied the settled convention on legal pleadings and affidavits by asking the government to, “necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.”
• The second aspect of the national security argument is how the court balances it with the fundamental right to privacy.
• Here, drawing from the framework of the K S Puttaswamy judgment the court specifically states that, “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning” and, “mere invocation of national security by the State does not render the Court a mute spectator”.
• These are significant observations that, when followed as precedent, will bolster confidence in constitutional adjudications especially when courts demand evidence on arguments of “national security” to avoid generalised statements made to evade accountability.

3)  Rejection of the suggestion by the Solicitor-General to constitute a government committee of experts

• The court correctly notes that even though the Pegasus revelations were first made on November 1, 2019, there has been little movement on any official inquiry.
• It also records the genuine apprehension of the petitioners, many of whom are victims of Pegasus, that since the sale of this malware can only be made to governments, they fear the involvement of state agencies.

Challenges

• These include the functioning of the committee and the cooperation of government witnesses, the publication of the report so as to ensure public confidence and, ultimately, the directions and remedy provided by the Supreme Court.

Conclusion

Hence, the constitution of this committee provides hope. At the same time, any honest assessment should consider the more challenging tasks ahead.

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In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up.

Read this before proceeding:

Collegium recommends nine judges for Supreme Court

What is the matter of concern?

Ans. Transparency in appointments

• These recommendations are seen as reflective of a new and proactive collegium.
• What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions.
• These misgivings are usually seen in the context of a battle between the executive and the judiciary.
• Less evident is the effect that the failings have on the status of the High Courts.
• Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.

No specified reasons for Exclusion

• For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court.
• The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court.
• Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
• The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion.
• We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts.

The public has right to know

• This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs.
• But whatever the rationale, surely the public has a right to know.

What is needed?

Ans. Striking a balance in Separation of Power

• Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary.
• To that end, the process of appointing and transferring judges assumes salience.
• But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.

As suggested by Dr. Ambedkar

• The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”.
• That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit.
• Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court.
• In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.

Where does primacy rest?

Ans. In a transparent Collegium system

• In this design, there is no mention of a “collegium”.
• But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”.
• What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”.
• Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.

This procedure has since been clarified.  But there is, in fact, no actual guidance on how judges are to be selected.

The NJAC and after

• In 2015, Parliament sought to undo the procedures put in place by the Court through the 99th Constitutional Amendment.
• The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public.
• But the Court scrapped the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution.
• In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.

Assessing the NJAC

Ans. The NJAC was far from perfect

• There were legitimate fears that the commission might have resulted in the appointment of malleable judges.
• Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution.
• This is that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.

Promises are yet unfulfilled over transparency

• When the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten.
• The considerations that must go into the procedure for selecting judges is left unexplained.
• The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean.
• Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.

Way forward

• It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with.
• Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution.
• Achieving this will no doubt require more than just a tweak in the process of appointments.

Conclusion

• It is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
• At some point we must take seriously the task of reforming the existing scheme because the status quo is ultimately corrosive of the very institutions that it seeks to protect.

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Context

For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

Significance of the move

• It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
• It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
• Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
•  The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
• The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
• A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.

Various norms to be followed in judicial appointment

1) Consideration of merit

• Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
• So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
• In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
• The most crucial consideration is the merit of the candidates.
• The merit is the ability of the judge to deliver complete justice.

2) Plurality

• The nine judges who decided the above case were quite aware of these compelling realities.
• So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”

3) Transparency

• India is perhaps the only country where the judges select judges to the higher judiciary.
• It is, therefore, necessary to make the norms of selection transparent and open.
•  In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
• The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.

Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities. 

Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”

Conclusion

The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.

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