Judges’ Appointment Case: A Quagmire of Judicial Activism

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong

(A critical review of the Ragib Rouf judgment providing guidelines in relation to appointment in higher judiciary published in today's Daily Star, Law and Our Rights (July 4, 2017). The over all theme of the review is that the judgement may not be counted as a very good instance of activism on the part of the higher judiciary. Some words of the original write up has been edited, due to space constraint and sober criticism perhaps. Posting the original write up here and also giving the Daily Star Law and Our Rights link of July 4, 2017)

As far as judicial review and activism is concerned most of our commentators have been laudatory and complementary. There are skeptics as well and they refuse to uphold intensive poking of noses by the judiciary in legislation and policy-making at the expense of the legislature and executive (See - S K Agrawala, Public Interest Litigation in India: A Critique, N M Tripathi, 1985 and Rajeev Dhavan, Litigation Explosion in India, N M Tripathi, 1986). Admittedly, there are some significant limits to judicial activism and the Court has been repeatedly confronted with a tradeoff between activism and restraint. Excessive judicial interest in policy issues may risk the court being shackled by limited impact its judgment may create on the ground.

The High Court Division’s sort of advisory opinion in relation to judges’ appointment in Ragib Rouf Chowdhury case seems to have pushed the limits of judicial activism. The “suggestions” given by the High Court Division in this case may be taken as a good case for judicial adventurism (Nupur Chowdhury, From Judicial Activism to Adventurism, Asia Pacific Journal of Environmental Law, November 2014). On a plain reading, the writ petition seeking “direction” upon certain parties to frame a “guideline” for the appointment of judges in the Supreme Court appears clogged within a quagmire of untouched legal questions, indeterminate parties, half-hearted reasoning and a curious ending.

The untouched question of Locus Standi

The petitioner, as lawyer, became concerned over the current appointment process (p. 2 of the full text judgment available in Supreme Court website), as it is susceptible to “control or influence by or of other organs of the State” (p. 4). Petitioner’s case in brief is that independence of judiciary being a basic structure of the constitution (p. 6), depoliticized  appointment of judges (p. 8) and also the appointment of persons of appropriate intellect and acumen is highly important for earning respect from bar (p. 11-12) and ensuring the independence of judiciary. While a preliminary inquiry into the sufficiency of interest of the persons pursuing a PIL is a norm, nothing of this sort was attempted in this case at all. The Court however had to concede that the petitioner did not come to enforce any the fundamental rights guaranteed under part III of the Constitution (p 31 of the judgment). Had this been the observation, the Court could have reject the writ petition following the “guideline 6” of the recent National Board of Revenue v. Abu Saeed Khan decision of the Appellate Division (18 BLC (AD) 116, para 38) which has cautioned the High Court to see whether public interest litigation turns into a “publicity interest litigation.”

Unsubstantiated opposition to the Commission system 

Most important point of the case, which unfortunately was not hard pressed by the petitioner with necessary elaboration and precision, was whether a system of public announcement of judicial vacancies and call for interest could be a constitutionally viable option. The Supreme Judicial Commission Ordinance issued in 2008 was declared void by the High Court Division (Idrisur Rahman v. Bangladesh 60 DLR (HCD) 714) on the ground that the President could reject the recommendation of the Commission and primacy of the Commission was not ensured there (p. 9).

Apart from drawing inspiration from the UK National Judicial Appointment Commission (p. 11), the petitioner did not explore the other salient features of the Commission system introduced in 2008 and positive nods given by the High Court Division to some of those. While opposing the open call system, the Attorney General and one of the amicus curies Barrister Shafiq Ahmed argued that the judges of the Supreme Court being appointed through President’s satisfaction are not persons employed in the service of the Republic. Therefore, unlike other services of the republic, open applications may not be called for (p. 18-19). This “service of the Republic” argument, however, ignores the Masder Hossian opinion of the Appellate Division where the judiciary was declared an integral part of the service of the Republic (52 DR (2000) (AD) 82, Para 27) and Justice M A Aziz decision of the High Court Division where ‘service of the Republic’ in relation to article 99 was interpreted as including all posts or offices of the Republic (60 DLR 2008 (HCD) 511, Para 223). Ironically, neither the petitioner nor the Court offered any rebuttal to this misplaced argument. The Court merely pressed that the Commission system has been rejected in India (p. 38-39).

Indeterminacy as to the parties to be “directed”

Foundation of the petition rested on the question as to who was to be “directed” to frame the guideline and for whom the “guideline” is to be framed. Relying on Ministry of Ministry of Justice vs. Md. Idrisur Rahman reported in 7 LG (2010) AD 17, the petitioner argued, and the court agreed, that only the Chief Justice reserves the right to initiate an appointment process in the highest court and government may only suggest suitable names to the Chief Justice (p. 7). Chief Justice would propose candidates to the President and President would appoint therefrom. President however is constitutionally required to receive the Prime Minister’s advice. Hence, Dr Kamal Hossain claims that the process is actually the reverse. The appointment is still being initiated by the executive and the Chief Justice is consulted on the basis of list of candidates provided by the executive (p. 22). Whatever be the process, theoretically it remains unclear who is to be “guided” on the selection criteria – President, Prime Minister or the Chief Justice? Interestingly, the petitioner filed the writ against all – President (through the Ministry of Law), Prime Minister (through the Principal Secretary and Cabinet Secretary) and Chief Justice (through the Registrar General of the Supreme Court). More interestingly, none of them appeared to contest the writ (!) The petitioner however, kept arguing that had there been some definite guidelines for the Chief Justice in initiating the process and government in suggesting names it would have been better (p. 7).

Bulk of the amicus curies, Attorney General and even the Court agreed that law making responsibility in this regard rests with the parliament as per Article 95(2)(c) of the Constitution and the judiciary is not in a position to issue mandamus to the parliament (p. 32). Also, in absence of any express delegation of the law making authority from the parliament to the executive, the government also is not in a place to frame the guideline sought (p. 30). Then who else is to be directed? The Chief Justice? The Court however was convinced that such an attempt would “undermine” the power of the Chief Justice (p. 40).

A Curious Ending

The Court therefore “disposed of” the “misconceived” writ petition (p. 44) against the political executive. Yet it ended up in “suggesting” some “eligibility criteria” to the honorable Chief Justice – at least one of which has political implication and almost all of which are less likely to have any practical impact on the ground. That’s where we may think judicial activism turns into a judicial adventurism.