Opinion How to choose a judge
The collegium system is flawed. But more debate is needed before the judicial appointments bill is passed.
The collegium system is flawed. But more debate is needed before the judicial appointments bill is passed.
There is now an impasse on the question of the proper method of appointment of the judges of the Supreme Court and high courts. It is acknowledged that the two-decades-old current system of appointment by a collegium of five judges of the SC,prescribed by two SC judgments in 1993 and 1998,has failed as it lacks legitimacy,transparency and accountability. The late Justice J.S. Verma,author of the first majority judgment of the SC,later reflected himself that a rethink was required on the collegium method. In this situation,the government has proposed legislation for the method of appointment of judges of superior courts by a judicial appointments commission. But there is little possibility of this legislation being passed in the near future.
The Judicial Appointments Commission Bill,2013 proposes the appointment of judges by a judicial appointment commission (JAC) composed of the Chief Justice of India as ex-officio chairman,two other seniormost SC judges as ex-officio members,the Union minister of law and justice,and two eminent persons nominated by a
body consisting of the prime minister,CJI and leader of opposition in the Lok Sabha. The JAC would recommend to the government persons for appointment to the offices of Chief Justice of India,judges of the SC,chief justices of the high court and other judges of the high court. Simultaneously,a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill,2013.
The JAC bill was introduced in the Rajya Sabha on August 29 and referred to a parliamentary standing committee. The standing committee presented its report to both Houses on December 9. The Constitutional (120th Amendment) 2013 Bill was passed hastily by Rajya Sabha on September 5,but because of a technical hitch,it could not be passed by Lok Sabha before adjournment. Both bills are unlikely to be passed in the budget session next year. Consequently,the present system of appointment of judges by the collegium will continue,despite general disapproval. This is disquieting as,in the next year,probably as many as 11 vacancies will open up in the SC,and 275 posts of high court judge are lying vacant.
There are also serious defects in the proposed legislation. First,the constitutional amendment bill,which provides the constitutional support for the JAC bill,does not incorporate the composition of the JAC. The composition of the JAC has to be entrenched in the Constitution itself; otherwise it could be subject to changes by any ordinary law by the government of the day. This is also the view of the standing committee.
Second,under the JAC bill,the JAC has been entrusted with the formidable task of not only appointing 31 SC judges,but over 800 judges in 24 high courts. To be effective,such a commission has to be a full-time institution. It is impossible for it to operate part-time with ex-officio judges of the SC,who have full-time court work,and the law minister,who has other duties,in charge. In the UK,the judicial appointments commission has 15 commissioners and is a permanent institution working day-to -day with a large secretariat to support it.
Third,under the JAC bill,the JAC would have the onerous task of appointing SC judges as well as the high court. As the criteria for selection for SC judges is different from that of high court judges,and considering the importance of SC judges,there should be a separate commission for appointments to the SC,as in the UK.
Fourth,a serious lacuna in the bill is that the selection of judges is to be determined by regulations made by the commission to shortlist candidates. There is no indication of how candidates will be shortlisted and by whom. In the absence of definite objective criteria,the shortlisting could be highly subjective and even arbitrary. This has also been noted by the standing committee in its report.
The standing committee has suggested public notifications be issued inviting applications for appointment to the post of judges of the high court,as is the practice in the UK. However,this is unlikely to work well in India. Advertising for a judicial post is likely to deter well-qualified candidates from accepting appointments because they will be apprehensive of the impact a rejected application could have on their reputation.
Finally,in the UK,next to the consideration of merit for appointment as a judge,the JAC considers diversity of appointments with respect to appointment of women and judges from different communities. This is an important consideration,which is absent from the JAC bill. The bill only requires the JAC to recommend persons of ability,integrity and standing in the legal profession,with no regard to diversity.
The bill requires consideration and debate before it is passed. Such an important change in the constitutional set-up should not be a matter of majority and minority support in Parliament,but come via a consensus evolved between all parties,informed public opinion and the consultation of the CJI as head of the judiciary. This will,of course,take time and the present system will continue in meanwhile. To avoid this,the collegium should consider whether the selection of judges should be made with wider consultation than only a collegium of five,and with some transparency to inspire confidence in the selection.
The writer is a senior Supreme Court advocate,former solicitor general of India and Advocate-General of Maharashtra
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