Judges need critical juries

Justice R.M. Lodha, immediately after taking over as the Chief Justice of India last month, supported the existing collegium system for the appointment of judges to higher judiciary. His predecessor, Justice P. Sathasivam, also batted for it before demitting office.

However, Justice Lodha hinted that he would initiate wider consultation, and added, “My first priority would be to appoint judges in high court and the Supreme Court. If we have good judges, we would have in seven-eight years’ time an entirely different complexion of judiciary.”

He has correctly diagnosed the ailment. Quality of judges is crucial to addressing the problems of delay and accountability. The paramount question is how to raise the quality of judges and make the process of appointment more transparent. The United Progressive Alliance government wants to change the present system of appointment by setting up a Judicial Appointments Commission for which it introduced the Constitution (120th Amendment) Bill, 2013, in Parliament. It seeks to insert Article 124(A) in the Constitution and amend articles 124(2), 217(1) and 222(1).

The collegium system is under attack ever since its inception in 1993 by a judicial interpretation which was virtually tantamount to rewriting the Constitution. The slogan “committed judiciary” floated by the Union government in the 1970s made judges feel insecure and some judges of the apex court fell in line to prove themselves forward-looking, as desired by the government of the time.

It robbed them of their independence. The Second Judges’ Case (1993), which appropriated the power of appointment from the executive in the name of the independence of the judiciary, came as a reaction to that pernicious trend. But the remedy proved to be worse than the malady as experience conclusively proves that the members of the collegium, instead of improving the quality of appointments, indulge in the worst kind of nepotism.

In November 2008, the elevation of three judges to the apex court touched off a huge storm in the legal world as seniority of three judges was conveniently overlooked though the Supreme Court has laid down in the Second Judges’ Case that seniority is the rule unless a junior judge has “outstanding merit”.

The collegium preferred Justices A.K. Ganguly, R.M. Lodha (present CJI) and H.L. Dattu to Justices A.P. Shah, A.K. Patnaik and V.K. Gupta who were senior. All the three were chief justices of different high courts. The government refused to endorse the recommendation on the ground that the seniority criterion was overlooked.

But the collegium reiterated its recommendation. Reportedly, Justice Kapadia, then CJI, blocked the elevation of Justice Shah while Justice Arijit Pasayat of the Supreme Court blocked that of Justice Patnaik who was elevated immediately after Justice Pasayat retired.

Recently, the Supreme Court collegium had to reject the entire panel of 12 names for the Madras high court recommended by the high court collegium after it spawned a fierce controversy. In July 2013, the then chief justice of Gujarat high court, Bhaskar Bhattacharya, accused the  then Chief Justice of India, Justice Altmas Kabir, of being biased against him and stopping his elevation to apex court as he had opposed the elevation of Mr Kabir’s sister to HC judge in Calcutta.

In no country except India do judges appoint judges. In fact, none of the Constitutions of the Commonwealth countries, or the Constitution of the US, Japan or Switzerland even provides for “consultation” with the head of the judiciary or any member of it in the matter of appointment of judges. In South Africa, a 25-member committee selects judges.

In the US, the President nominates a Supreme Court judge who is grilled by the Senate Judiciary Committee; neither the chief justice nor other judges are informed, much less consulted.

The executive must have a say in the appointment of judges, but the body appointing them should be broad-based, and the process must be transparent. There must be some well-defined basis for these appointments.

At least for the elevation to the Supreme Court there should be scrutiny of a fixed number of judgments delivered by the competing candidates by a panel of outstanding jurists, and it should be released on a website for scrutiny by the people.

In the US, the Senate Judiciary Committee grills the prospective Chief Justice of America in its confirmation hearing. And everything is telecast live so that people are able to know the man who is going to preside over the apex court of their country.

In the UK, Lord Chancellor used to select judges notwithstanding the fact that he was a member of the Cabinet and Speaker of the House of Lords. But the Constitutional Reforms Act, 2005, conferred powers on Judicial Appointments Commission (JAC) to select judges after the Lord Chancellor was accused of the same kind of nepotism and elitism as is alleged about the Indian judiciary.

The UK’s Labour Party  always criticised the judiciary as being the bastion of privileged elites. So Tony Blair’s government brought in the CRA.

There is an oft-cited story about Lord Chancellor Halsbury who, on being asked “whether ceteris paribus, the best man, would be appointed to the job”, replied, “Ceteris paribus be damned, I’m going to appoint my nephew.” Eighty-two MPs were appointed judges between 1832 and 1906, 63 of them being from the ruling party at the time of appointment. Indian judiciary faces the same allegation of nepotism.