Eligibility criteria for judges’ appointment needs to be published as also the shortlist of candidates so that objections, if any, can be raised.
The debate on the now struck-down National Judicial Appointments Commission (NJAC) saw the legislature and the judiciary sharply divided on the collegium system of appointing judges though both admitted that it has some flaws and needed reform.
While finance minister Arun Jaitley said that the debate for a better system for judges’ appointment will continue, in public and in Parliament as India needs an independent and credible judiciary, former CJI R M Lodha felt the shortcomings in the system of judges appointing judges need to be corrected “The system is opaque and secretive. There is lack of expert evaluation of merit of a candidate considered for appointment as judge,” Justice Lodha said, but cautioned that the judiciary has to be insulated from political interference or pressure.
Though, on October 16, the Justice JS Khehar-headed Supreme Court bench, by a 4:1 majority, declared the constitutional amendment to replace the collegium system of appointments to the higher judiciary as unconstitutional, it accepted the flaws and decided to consider introduction of appropriate measures “to improve and better” the system on November 3 by seeking suggestions from the government and the legal fraternity.
Legal experts are already looking at methods to improve the system, one that remains shrouded in secrecy and mystery. To make the working of the collegium transparent, Justice Lodha has suggested that the procedure and the rationale for every appointment made can be put in the public domain or provided under RTI. Besides, an expert body, viz. a Parliamentary standing committee, can help the collegium, he adds.
Constitutional expert and senior lawyer Shanti Bhushan says, “It is possible to appoint honest, knowledgeable, able and objective judges capable of rendering much quicker justice through a more robust, transparent and consultative collegium system.”
“Today, with all its imperfections, the judiciary still inspires far greater confidence amongst the people than any other institution, including the Parliament,” he adds. Bhusan suggests that “important facts on a person’s suitability could certainly be brought to the attention of the CJI in a permissible effort to influence her/his views, but the decision is to be left to the CJI and his advice has to be treated as binding.”
Greater consultation with the bar to get their inputs on a judge’s past performance and ability, greater transparency by publishing broad outlines of meetings and the reasons for appointments, considering a written opinion of a Parliamentary sub-committee consisting of at least one member from all the political parties represented in Parliament may be important for appointment of judges, he says.
Another senior Supreme Court lawyer, KV Vishwanathan supports the proposal that the collegium publish a set of rigorous eligibility criteria for appointment of high court judges.
“Advocates who have large number of reported judgments to their credit and who have published books of good value as well as monographs, those who have participated in legal aid programmes, shown concern for genuine PILs on social issues like environment, gender equality, etc, must be given preference,” he adds. “A system where all eligible candidates have a fair chance of placing their case before the collegium or its delegate must be put in place. Diversity should be ensured so that there is adequate representation from women and members from all sections. Post appointment, the track record of the new appointee should be published in the website of the court,” he suggests. According to him, if this system is put in place, the indolent and slothful lawyer will stop entertaining ambitions of judgeship as this is the category which manipulates any system, for they are looking at judgeship as a safe sanctuary with a monthly retainer and no accountability. Bar councils have to put in place a continuing legal education programme, with a system of giving credits or points based on the courses attended. Judiciary has outsmarted the lawyers there, for they have judicial academies from which the subordinate judiciary has been largely benefitted. Senior counsel Shyam Divan says norms for appointment of judges should be absolutely transparent and made public. Applications should be invited from the bar and a proper filtration process is required to shortlist the candidates where merit is the only criteria. Like it is in other parts of the world, bar associations should have a say.
Senior counsel Kevin Gulati believes a format requiring the disclosure of personal details along with the list of cases argued and articles published could help transparency and the collegium’s accountability. After a shortlist of candidates is uploaded on the court website, objections accompanied by evidence must be invited in a time-bound manner, Gulati believes, adding that explanations can be sought from candidates, if necessary, before taking a final call.
All eyes are now set on the November 3 hearing, which should be seen as an opportunity to make the collegium system transparent and accountable.
The judiciary has taken the responsibility to fix the system. The question is will it be able to make the system demonstrably accountable even as it preserves its independence from the legislature or the executive?