Open Forum

New Delhi, 12 August 2014

Judicial Appointments

COMMISSION VS COLLEGIUM

Dr. S.Saraswathi

(Former Director, ICSSR, New Delhi)

The Government has introduced the National Judicial Appointments Commissions Bill 2014 and the 121^{st Constitution} Amendment bill   in the Lok Sabha.  It also withdrew the Bill introduced by the UPA Government that was pending in the Rajya Sabha.  Importantly, the new Bill was converted to a Constitutional Amendment as recommended by the Select Committee whereby, if passed, it will insert Articles 124A, 124B and 124C as making any change in the Articles would have been impossible without a Constitutional Amendment. 

Notably, the Amendment seeks to establish a 6-member Judicial Commission in the place of the Collegium System for appointment of judges. Under the new procedure judges would be appointed and transferred by the Commission which would be headed by the Chief Justice of India, two senior Supreme Court judges, two eminent personalities and the Union Law Minister.

An upset Chief Justice Lodha was prompt in his response by vigorously defending the Collegium System and remarked that “failure of the Collegium System would mean the failure of the whole judiciary”.  Indeed, a natural reaction as most judges of the Supreme Court today are appointed under the Collegium System.

Questionably, the issue is about the wisdom of discarding a system because of a   few wrong appointments. Resulting in a raging controversy and heated debates in Parliament and media ever since former Supreme Court Judge and Chief Justice of the Madras High Court Markandey Katju made startling revelations of naked political interference in judges’ appointment.    

Katju first alleged that an influential and important political ally of the UPA Government pressurized the then Prime Minister Manmohan Singh to support extension of a Madras High Court’s Additional Judge’s term, despite several allegations of corruption and adverse reports against the judge.

Additionally, there were attempts to elevate another Madras High Court tainted judge to the Supreme Court through the Collegium system. But this was thwarted due to advocates’ protests. Worse, the ex Supreme Court judge continues to expose more instances of judicial corruption.

Undeniably, these startling disclosures cannot be brushed aside as part of manipulative tricks to obtain and retain positions and status.  For, not only do they have immense political significance but also raise fundamental questions about the very system of judicial appointments.

True, judicial officials directly or indirectly referred to in Katju’s revelations, the politicians involved and the compulsions of running Coalition Governments which put the Prime Minister under severe pressure form only one part of the story. More important is the inherent weaknesses in the method of judges’ appointment which leaves scope for corrupt practices, political interference and non-juridical considerations in judges’ selection and transfers.

Pertinently, as per the Constitution the Chief Justice and other Supreme Court judges are appointed by the President and removed only by a Presidential order passed after the judge is impeached by Parliament. The Chief Justice of High Courts is appointed by the President after consultation with the Chief Justice of India and the Governor in a State and other judges are selected after consultations with the Chief Justice. The procedure for High Court judges’ removal is the same as for Supreme Court.

Recall, the Collegium System of appointing judges was introduced in 1993 after the Supreme Court established the principle of judicial independence in the “three judges’ cases”.  In the first case, judges’ appointment, described as a “sacred ritual”, was entrusted to the Executive and kept secret and confidential.  The Court felt this could result in wrong appointments, transfers, encourage nepotism and even “trade offs”.  Discontent over this procedure surfaced.

In the second case, the mode of judges’ appointment was changed.  It gave primacy to the judiciary with the CJI as the head. The third case introduced the Collegium System with the CJI as the head and comprising two senior-most Supreme Court judges. For selection of High Courts judges, the Collegium comprised the CJI and four senior-most judges which was to review recommendations made by a similar Collegium in High Courts.

In 2003, the NDA Government introduced the Constitution 98^th Amendment Bill which provided for the constitution of a Judicial Commission under the CJI with two senior-most Supreme Court judges, Union Law Minister, and an eminent citizen nominated by the President in consultation with the Prime Minister as members.

Britain constituted an independent Commission in 2006 to strengthen the independence of the judiciary. Its JAC (Judicial Appointments Commission) is an executive, non-departmental public body sponsored by the Justice Ministry. Members of the Commission are drawn from the judiciary, legal profession, non-legally qualified judicial office-holders and public.

In most countries, the executive retains the power of appointing judges, but not without controversies over the efficacy of the system in ensuring judicial independence.   Leading to strong public opinion against the role of the executive in choosing judges.  Australia and Canada made changes and redefined “merit” in judicial appointments to make judiciary more representative.

Political involvement in judicial appointments is more direct in the USA. where the Attorney-General in the Department of Justice  is responsible for making recommendations to the President for federal judicial positions.   No statutory qualifications are prescribed and the Department makes an assessment of the merits and reputation of the candidates.

Significantly, modern democratic Constitutions accept the doctrine of separation of powers.  This puts the Executive and the Judiciary within their specific jurisdiction.  However, the question of appointment of judges could not be completely separated from the executive.  The result, in course of time, is seen in increasing number of allegations and suspicions of political and other interference in the functioning of the judiciary and in the appointment of judges.

Judges in any society under any form of Government are treated with utmost respect.  In the ancient and medieval monarchies, when the king was also the judge to decide disputes and punish offenders, judicial impartiality was counted as the foremost quality of a good ruler.

There are specific references to appointment of judges and their qualifications in legends.  Only persons with sound knowledge of law and legal procedures, great scholars with profound knowledge of scriptures and reputed for righteous conduct were appointed as judges according to Mahabharat’s Shantiparva. This was part of “Rajadharma”.

Sukraneeti mentions impartiality, fairness, and sobriety as indispensable qualities of a judge.  It states, judgments should be based on righteousness and not delivered in anger or greed. Temptation (to accept bribes), attachment to a  party in a dispute, fear of consequences of his judgment, malice and secret meeting with a party in a dispute are mentioned as five evils to be shunned by judges. The Katyayana Smriti asserts, judges should be sweet-tempered, kind, clever, energetic and not greedy. More than that, they were expected to be well versed in many shastras.

In sum, judges’ selection and appointment constitute an important aspect of good governance. Although the judiciary is concerned mainly with law and justice, judicial interpretation of law along-with the responsibility to uphold law without fear or flavour  places a unique responsibility on judges to ensure good governance. The quality of any arrangement depends on the quality of persons executing it. We need to raise our ethical standards in governance as top priority.  Systems cannot be blamed for operational deficiencies! ---- INFA 

(Copyright, India News and  Feature Alliance)