Whether it be the collegium system or the NJAC, the unaddressed issue is that the process of appointment of judges remains shrouded in secrecy. The dissenting Justice Chelameshwar raised this vital issue of Constitutional governance, “....transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”
He pointed out the problems, limitations, demerits, irregularities, resultant appointment of inappropriate persons as judges etc in the two-decade-old collegium system and saw merit in the wisdom of Parliament in scrapping it and making an attempt to bring in a multi-member body giving representation to the civil society, executive and the judiciary to select judges of Constitutional courts. It is unfortunate that four judges concluded differently about the system proposed instead of giving it a chance. When two decades of experience shows so many cracks in the system, why shouldn’t an alternative be tried? It’s a crisis situation for the judiciary as the lack of transparency was exposed with the Amendment, and the hearing before the Supreme Court revealed that there was a lack of accountability. It is pertinent to note that ‘there were cases where the apex court ‘retraced its steps’ after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of ‘speculation’. This statement could be better understood only by those judges who are privy to the internal workings of the judiciary. As rightly pointed out, the records are absolutely beyond the reach of any person including the judges of the court, who were not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or do good for the people of this country.
Justice Joseph agreed that the collegium system lacked transparency, accountability and objectivity. Trust deficit that affected the credibility was well explained by Justice Chelameshwar: “Deserving persons have been ignored for subjective reasons, social and other national realities were overlooked, certain appointments were delayed either to benefit vested interests or deny such benefits to the less patronised, selection of favoured persons were made violating guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium affects the dignity, if not independence of the judges, the court, particularly the SC, often being styled as the court of the collegium, looking forward syndrome affecting impartial assessment, have been some of the other allegations.”
Fali S Nariman, though, described the collegium as a lesser evil, agreeing it was opaque. None can deny the powerful lobbying that is thriving in secrecy in the collegium system that pushes some people up the judiciary’s ladder in a well calculated manner. None ever explained the selections or rejections. If selections are reasonable, why aren’t they explained? Do people have the right to know how their judges were selected? Constitutional offices like Ministers and Judges should not be reduced to the level of personal estates to be inherited indirectly. Two chief justices of states cannot mutually devise strategies to appoint their sons as judges. Open competition alone will avoid chief justices of two states mutually appointing their sons, and facilitate space for merit and competitive spirit. The challenge to the amendment in the apex court brought out the deficiencies of selections, which otherwise is not accessible.
We need to understand the assumption that ‘primacy of the judiciary’ in the appointment of judges is a basic feature of the Constitution’ is empirically flawed. The Constitution of India does not prescribe the exclusion of the Executive from the judges-selection process. This collegium is the result of judicial decisions expanding the theory of judicial independence. Judicial independence is undoubtedly a basic structure, but this extension is not. Former Chief Justice M N Venkatachalaiah recommended in 2002 that the NJAC be brought into effect and participation of the executive and judiciary in recommendations. Including ‘eminent’ persons in the selection process is not a bane.
The conclusion that the civil society in India is not matured yet, is also not supported by any evidence. Chelameshwar said: “To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said. He added that Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in Constitutional theory. The reformed law in the United Kingdom provided a process of giving information packs about the selection of judges. India, which retained most pre-Independence enactments, surprisingly does not look into the reforms brought in the judges selection in the UK. In 2005, the UK Parliament passed the Constitutional Reforms Act, facilitating transparency in judges’ selection, in courts including new the Supreme Court which replaced the earlier apex judicial institution in 2009. The process is further amended by the Crime and Courts Act 2013. UK Judicial Appointments Commission is a multimember, non-departmental public body that took over the responsibility previously held by the Lord Chancellor and the Department for Constitutional Affairs.
UK’s JAC came into existence in 2006 and had several sittings to select judges. It is both diverse and transparent. It consists of five judicial members, two professional members, five lay members, one tribunal judge and one non-legally qualified judicial member.
At present, two of the five lay persons are professors and one is a Lieutenant General. Twelve including the Chairman of this commission are appointed through open competition. The other three are selected by the Judges Council or Tribunal Judges Council. They have to select candidates solely on merit and give weightage to making selections that promote diversity in the range of persons available for judicial selection. The Appropriate Authority (either Lord Chancellor, Lord Chief Justice or Senior President of Tribunals) can accept or reject a JAC recommendation or send it back to Commission for reconsideration, for which JAC has to give reasons. The JAC selects only one person, and if two are found equally meritorious, one can be preferred to increase diversity. The Commission will consult first Minister in Scotland, Wales and Northern Ireland also.
For appointment of judges of the Supreme Court in UK, the Lord Chancellor (Minister in Cabinet and second Great Officer of State, who is in charge of independent functioning of courts) will ask the President (Chief of SC) to convene a selection commission. The President presides and there will be no deputy President in this Commission. Senior judge (not of SC) from anywhere in UK will be other member. If President is to be selected, outgoing President cannot sit as a member and it should be chaired by non-legally qualified member.
After this seven selection commissions have sat in UK. For the first time in 2008-09 the selection commission decided to advertise vacancies inviting open competition, which practice continued with subsequent commissions. On each occasion an Information Pack is drawn up for potential applicants, which is publicly available. From 2009/10 onwards the advertisement and information pack have been placed on their official website.
The information pack sets out, amongst other matters, the criteria that the selection commission uses to assess applications. India needs such information packs as part of judicial glasnost and selection perestroika.
Madabhushi Sridhar is an Indian academic and Central Information Commissioner.
E-mail: professorsridhar@gmail.com