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Jury Out on Consulting Bar Before Appointing Judges

The recent round of judges’ appointment has snowballed into a major controversy at the Madras High Court.

Published: 10th January 2014 09:58 AM  |   Last Updated: 10th January 2014 09:58 AM   |  A+A-

The recent round of judges’ appointment has snowballed into a major controversy at the Madras High Court. Besides a PIL seeking recall of the recommended names, the lawyers have also resorted to various forms of protests, including boycott of court.

At the heart of the controversy is the widely held perception that the prevailing process of selection and appointment lacks transparency. This has led to a situation, where members of certain communities have representation disproportionate to their strength in the Bar. It is also alleged that the secrecy involved in the collegium mode of appointments leads to unsuitable candidates donning the coveted judges robes.

As a solution to the problem, lawyers fora have demanded a participatory methodology where the Bar could be consulted on the antecedents of a lawyer chosen to be elevated as a judge of the court.

President of the Madras High Court Advocates’ Association (MHAA), R C Paul Kanagaraj, says the question of eligibility and suitability of a person for the post of a HC judge can be clearly answered if the association’s opinion is taken by the collegium.  He argues that there is an inherent flaw in the current system of appointments. “Two of the three judges in the collegium are from other High Courts. Their exposure to lawyers here is very recent. Only the third judge is part of the Madras Bar. In other words, if a person is able to convince the third judge in the collegium, there is every chance his name could be recommended,” he says.

Here is where, Kanagaraj says, favouritism could creep in. The current list, he says, has names of lawyers who rarely attend the courts and have no substantial cases to show in their track record.

Co-chairman of the Bar Council of India, S Prabhakaran, says the Bar is certainly in a position to provide vital information about a probable candidate who may not be available to the collegium otherwise.

“We see the lawyers every day. Our only aim is to ensure that the right person occupies the honourable seat. Appointment is certainly the prerogative of the collegium. But, as leaders of the Bar, we could help filter unsuitable persons, given our knowledge of the candidates. Our opinion need not be binding,” he says.

However, there is also a section at the HC that believes consultation with associations would be detrimental to the entire cause of independence in judicial appointments.  A senior lawyer, on conditions of anonymity, argues that most lawyers’ associations have factions battling each other. This is displayed explicitly at the time of elections to the fora. 

“What is the guarantee that an opinion by the association head would be objective? Personal equations will come into play with certainty,” he points out.

Further, there is also the question of which association’s leader is to be consulted, given that there are many such fora in the HC.

But, Kanagaraj says the issue of subjectivity is true to the collegium system as well where a few judges decide on the final list of candidates.

“Subjectivity is an argument that could be stretched with no end. All that we are saying is that when secrecy is removed by sharing the names with the associations, it could be a step towards transparency,” he says.

No tn govt view on names: ASG 

Chennai: No recommendation has been received from the TN government with regard to the selection and appointment of 12 new additional judges to the Madras High Court, Additional Solicitor General P Wilson told the High Court on Thursday. He said that the Ministry has received only the proposal and the same is pending before it.



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