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The judicial appointments bill offers an opportunity to debate the method of selection of judges. We need to draw lessons from other countries
The Judicial Appointments Commission Bill 2013, introduced in the Rajya Sabha in August last year, provided an occasion to debate the issues surrounding the legitimacy and accountability of the judiciary. Evidence from the past few decades suggests that judges are likely to expand the scope of judicial review in developing the concept of democracy and good governance. Thus legitimacy, transparency and accountability of the judiciary, and its relationship with other branches of government, become even more significant. The method of appointment of judges, then, is important.
One consequence of the current system of self-nomination by judges is that we have a predominantly male judiciary. The system has largely excluded women. Also, the current method rewards individuals with kinship or other ties to members of the judiciary. The necessity of changing the system as it exists can therefore not be doubted, and the bill must be welcomed.
The bill puts in place a judicial commission which consists of the Chief Justice of India as chairperson, two other judges of the Supreme Court next to the chief justice in seniority, the Union minister of law and justice and two “eminent persons” to be nominated by the collegium consisting of the prime minister, the CJI, the leader of the opposition in the Lok Sabha and the secretary to the Union government in the department of justice. This commission will make recommendations for appointment to the posts of the CJI, SC judges and chief justices of high courts from among “persons of ability, integrity and standing in the legal profession”.
However, the bill fails to put in
place a transparent system of appointment of judges. Nor does it ensure that the diversity of the country will be reflected on the benches of the high courts and the SC.
India can learn from other countries. In the United Kingdom, judicial commissions invite an “expression of interest” from members of the Bar through public advertisements for appointment as judges in the highest judiciary, as also for appointment as Queen’s Counsels, equivalent to our senior advocates. In the United States, the president’s nominees go through confirmation hearings in the Senate and are subjected to public scrutiny in relation to their professional lives and political views. Both processes have led to more transparency in judicial appointments, and have widened the pool of eligible candidates for appointment to these high offices. But there are no such provisions in the current Indian judicial appointments bill.
The eligibility criteria for the appointment of judges put in place by the bill are vulnerable to manipulation by elite groups. There is continued…