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Judicial appointments: agenda for reform by Anil Divan

The independence of the judiciary and the rule of law will be severely compromised if the integrity of the higher judiciary is not protected by an independent, informed, transparent, fair and robust process. 

The former Chief Justice of India, P.B. Gajendragadkar, said: “Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct.”

The bottom line is “deserve respect from the public at large.” The prestige of the Supreme Court has never been lower except during the Emergency of 1975-77 and in the aftermath of the Habeas Corpus judgment. The higher judiciary is suffering from self-inflicted wounds. The Dinakaran appointment controversy has been dragging on from September 9, 2009. To appoint or not to appoint? — the question remains unanswered.

It is ironical that over 70 members of the Rajya Sabha have donned the mantle of leadership and decided to present an impeachment motion against the Chief Justice of the Karnataka High Court in record time. One hopes Parliament will deliberate and decide impartially — judicial integrity is too crucial to be tested through the prism of partisan politics.

The entry point at which High Court judges are appointed has to be guarded meticulously. Indifferent and unsuitable appointments create many difficulties because most of the Supreme Court judges are drawn from among senior judges of the High Courts.

Supreme Court collegium

The system of appointments and transfers was the subject matter of many judgments until a nine-judge Bench gave “primacy” to the opinion of the CJI after wide consultations with senior colleagues in the Supreme Court collegium.

The collegium experiment is not working satisfactorily. Justice V.R. Krishna Iyer’s views encapsulate the public perception (The Hindu, Dec. 2, 2009): “What is wrong with our courts that they have lost their credibility and prestige? Corruption has crept in … Another great deficiency is that a collegium that is untrained in the task selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines… The collegium is a disaster: the P.D. Dinakaran episode is an example. A new code by a constitutional chapter has become an imperative.”

We must introduce radical reforms for a better tomorrow and discard systems which have outlived their utility. The need of the hour is to remove the lack of transparency and secrecy and replace the existing system with an independent, permanent, well-informed Judicial Appointments Commission functioning openly and transparently. This will require a constitutional amendment. The time is ripe for the same.

U.K.: the old system

Till 2006, judicial appointments were made by the Lord Chancellor and steeped in secrecy. Over a period of time, this system came under grave criticism. Colin Turpin writes: “Lord Scarman has described the appointment process as “all too haphazard” and an “old boy network” which has resulted in some terrible mistakes.”

John Alder comments, “Traditionally the Lord Chancellor privately consults judges and other senior lawyers and the senior judges … This process creates the risk that the judiciary is regarded as a self perpetuating body of cronies.”

Constitutional Reform Act 2005

Radical reforms have been brought about in the U.K. by the Constitutional Reforms Act 2005. A new Constitutional Court was established and it has started functioning. A Judicial Appointments Commission (JAC) is now in place with Baroness Usha Prashar as Chairperson — a distinguished civil servant of East African Indian origin. It has 14 other Commissioners including five judicial members, one barrister, one solicitor, five lay members, one tribunal chairman and one lay judge. The Chairperson and 12 Commissioners are appointed through open competition, while the other three are selected by the Judge’s Council. The selection of judges is to be solely on merit and the Act provides, “A person must not be selected unless the selecting body is satisfied that he has a good character” (Clause 63).

Applications are invited through advertisements for appointments to the High Court. The Act also provides for a Judicial Appointments and Conduct Ombudsman but that is not the theme of this article.

There are separate selection processes for posts of judges of the Supreme Court, Lord Chief Justice and Heads of Divisions, and puisne judges of High Courts. The process of selection to the High Court is done by the JAC, a body with a majority of non-judicial members representing a cross-section of society and the profession. Thus, inputs on a potential candidate and his integrity would be available from a wide spectrum of society. After inviting applications, interviews are taken and a rigorous and intrusive method of inquiry is in place. In Lord Falconer’s words, the methodology is “robust and transparent.”

South Africa

The Constitution, the Judicial Service Commission (JSC) Act and the JSC Amendment Act, 2008 deal with appointments and complaints against the higher judiciary. The amendment to the JSC Act has not been brought into force but it deals exhaustively with complaints against judges, a topic not relevant to this article.

The Constitutional Court is headed by the Chief Justice and has a Deputy Chief Justice. The Supreme Court of Appeal is headed by a President with a deputy. The head of the Executive is the President of South Africa. The President makes appointments to these four positions after consulting the JSC and leaders of the parties in the National Assembly.

The JSC consists of the Chief Justice, who presides over it as Chairperson, the President of the Supreme Court of Appeal, one Judge President designated by the Judge’s President and the rest non-judicial members. State High Court appointments are made by including in the JSC the Judge President of that Court and the State Premier. The total strength of the JSC is the Chief Justice plus 22 or 24 members. Judicial members do not have a preponderant voice.

The procedure of the JSC for other appointments to the Constitutional Court is gazetted. A vacancy or potential vacancy is publicly announced, nominations are called for and these must contain inter alia detailed curriculum vitae and answers to a questionnaire. The Commission interviews the shortlisted candidates and such sessions are open to the public and the media. After the interviews, the Commission holds deliberations in public and selects the candidates for recommendation. The Chairperson and the Deputy Chairperson shall “distil and record the Commission’s reasons” for recommending the candidate selected. The Commission advises the President on the names of the candidates and the reasons for their recommendation. The names are publicly announced. A similar procedure is followed for appointments to the State High Courts.

If a young republic like South Africa can function in such an open, transparent and professional manner — predominantly involving laypersons — why can’t India adopt a similar procedure?

We are at a defining moment — the independence of the judiciary and the rule of law will be severely compromised if the integrity of the higher judiciary is not protected by an independent, informed, transparent, fair and robust process. “The collegium” experiment needs to be jettisoned. Every adversity creates an opportunity. When there is a “duty to speak,” it is for responsible lawyers, citizens, former judges, and sitting judges to speak out — publicly or privately — and create public opinion and internal “peer pressure”.

Parliament, a proactive Law Minister, retired judges, and responsible members of the Bar must campaign to safeguard the independence and integrity of the judiciary.

(Anil Divan is a Senior Advocate. abdsad@airtelmail.in)