In the wake of recent controversies, the issue of judges’ appointments has resurfaced. Until 1993, the executive had a role in the appointment of judges in India. In fact, since the inception of the system of judicial appointments, it has always remained a prerogative of the sovereign ruler.
In ancient India, kings used to appoint judges (adhikitas) after consulting their social mentors (rishis). The British, after introducing the present judicial system in India, chose judges on the basis of advice from the chief justice of the respective high courts, who were invariably British by birth. During this period, not a single Indian was ever made a chief justice. Thus, British rulers ensured the judiciary remained loyal to the crown.
The present collegium system was introduced following the 1993 second judges’ case and the advisory opinion rendered by a nine-judge bench (decided seven to two) of the Supreme Court in 1998. The Supreme Court effectively “amended” the Constitution through judicial process, as it read “concurrence” into the term “consultation” as laid out in Article 124. The presidential reference to the Supreme Court was meant to review the second judges’ case, but the court refused to do so expressly and went on instead to strengthen judicial “concurrence” by increasing the number from three judges to five.
It failed to bring about much-needed reform by substituting the collegium with a more responsible, transparent and accountable system. The advisory opinion simply shuffled persons/ authorities to fructify individual ambitions and choices. There is now a great opportunity for the legislature to take a comprehensive view and introduce a system that is not only transparent but also ensures quality.
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The National Judicial Appointments Commission (JAC) Bill has been passed by the Lok Sabha. Many experts, including Law Commission Chairman A.P. Shah and Press Council of India head Markandey Katju, have advanced their suggestions and innovative arguments on the failure of the current collegium system: ironically, they are the product of that very failed system. Interestingly, they are for the supremacy of judiciary and want a majority say for judges. At the same time, the unusual strength of the present executive has given rise to apprehensions regarding its intervention in judges’ appointments.
Other than Japan, perhaps only in India do judges appoint judges. The present system of appointment suffers from many infirmities. There is neither any scope for scrutiny nor transparency. This method of appointments also does not address the diversity in Indian society. Moreover, it leads to the appointment of judges who hold similar views and have the same broad orientation. It is also prone to encourage nepotism in the judicial system. The need of the hour is to strike a balance between the independence of the judiciary and ensuring its impartiality and accountability.
Given the experience of the Emergency — which saw the executive’s assertion of its role in the appointment of judges — and undue interference thereafter (including the latest one involving this government in Gopal Subramanium’s non-appointment), it is imperative to ensure that the executive does not end up with a dominant role. A mere shift of primacy cannot be the way to ensure a transparent and qualitatively sound system of appointments. No objective parameter has been set in the JAC bill to ensure the selection of an able, competent, honest and educated person as a judge. On the contrary, the scope of subjective satisfaction of persons who will recommend judicial appointments is enhanced in the bill. A broad parameter in respect of procedure for the shortlisting of candidates has to be evolved. In this context, the ancient jurist Katyayana’s observation indicating seven qualities to be considered for the appointment of judges is worth noting. Those qualities are akrurha (no ill will), madhura (politeness), snigdha (dispassionate), kshamajuto (forgiveness), bichakshana (educated, having an analytical mind), utsahabana (spirited and hard-working), and nirlobha (without greed). Unfortunately, the present bill has not indicated any such qualities. Besides ensuring fairness and transparency in the appointment of judges to the benches of the higher judiciary, the timely filling up of vacancies in the judiciary is also an important challenge.
We can’t afford to see the appointments of judges in isolation. While making the process more transparent, broad-based and impartial, we must ensure that justice is made available and affordable to the vast population. There is no need for a separate body for judicial standards and accountability. The proposal for a national judicial commission (NJC), with representatives from three organs of the state — the executive, legislature and judiciary — must be acted upon.
It should be vested with powers to conduct inquiries into the misbehaviour of judges and to impose minor punishment. To make it more democratic, transparent and participatory, even representatives from the Bar Association of India and the general public can be inducted. This would facilitate wider consultations on assessing the suitability and integrity of potential appointees.
The NJC should comprise the Chief Justice of India as ex-officio chairperson with one other judge of the Supreme Court, nominated by the collegium of all judges of the Supreme Court, the chief justice of one of the high courts, nominated by the collegium of chief justices of all high courts, the Union minister for law and justice as ex-officio member along with two eminent persons to be nominated by a collegium consisting of the prime minister and leader of the main opposition party in the Lok Sabha and, finally, a nominee of the Bar Association of India. It should be ensured that at least one member is a woman and one eminent person is from the SC/ ST/ OBC/ minority communities, preferably by rotation.
The writer is a CPM MP in the Lok Sabha