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 no clarity on what is meant by “ability” or “standing in the legal profession”. “Ability”, which one presumes means “merit”, and “standing in the legal profession”, are socially constructed categories, often incorporated to exclude those who do not belong to the old boys’ network.
Recent revelations in the Punjab and Haryana High Courts have shown that the sons of sitting judges have been appointed to the post of additional advocate general with little experience at the Bar. Being an additional advocate general would be be enough to qualify a person under the bill’s “ability and standing in the legal profession” criteria.
Talented young people drawn from excluded social categories need to be encouraged by affirmative action to become judges so that the Indian people feel that they have a stake in the functioning of the judiciary and that their concerns are reflected at the national level.
The bill now pending in Parliament was expected to spell out a code of conduct for judges. Integrity at the Bar and of the judiciary can be eroded in different ways. Sons of sitting judges practice in the same court, except in the court of their fathers. Law firms in which children of judges are employed represent clients before the same judge. Sons of sitting judges are juniors in chambers to senior counsel who appear before their fathers. Some lawyers are regularly seen in the same courts, regardless of their domain expertise, due to their social connection with those judges. Socialising between judges and the lawyers practicing before them is routine in Delhi.
It is a pity that the law, which will require a constitutional amendment, will likely not be passed before the elections are declared. However, that should not stop us from raising these issues when the time comes to appoint
10 judges to the SC over the next
few months. With or without a new law, there is nothing to prevent the general public from participating in the process of appointments by nominating for consideration judges of integrity and learning who have a vision for the
future of the country.
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The writer is additional solicitor general of India. Views are personal