The existing system of judicial appointments by a collegium of five Supreme Court judges is fraught with criticism. The widespread discontent over the lack of legitimacy, transparency and accountability in the judicial appointments process is not peculiar to India alone. In other countries too, there are concerns that the judicial appointments are subject to margins of subjective discretion, secretive soundings and political patronage.
To replace the collegium system of judicial appointments, Parliament recently passed the National Judicial Appointments Commission Bill, 2014, introducing the Judicial Appointments Commission (JAC), which will come in force once the bill receives the president’s assent. The bill proposes the establishment of JAC comprising the Chief Justice of India (CJI), two other senior Supreme Court judges, Union minister for law and justice and two eminent persons nominated by a committee consisting of the prime minister, the CJI and the Leader of Opposition in Lok Sabha. The commission is entrusted with the formidable task of appointing 31 Supreme Court judges and over 700 high court judges.
The bill has received mixed reactions; some quarters have raised concerns on grounds that by introduction of Article 124C it confers unbridled powers on Parliament to determine the mode and manner of appointments and the lack of constitutional authority would mean that the composition of JAC membership can be amended by any ordinary law of Parliament. Secondly, although in composition the three judges’ membership constitutes a majority, with respect to the voting pattern if any two other JAC members express their disagreement on a short-listed candidate, the appointment can’t go through.
Whilst a potential impasse in making judicial recommendations is one thing, the concern is on possible compromise. Other concerns include that the bill was passed in haste by Parliament without adequate deliberation; it fails to specify the criteria for selection of eminent persons and that the process of selection of short-listed candidates isn’t specified in any defined rule. Given the background, this article is focussed on some principles and best practices relevant to the JAC and that the ground is fertile for progress.
Globally, over the last decade in particular, there has been an increased attention in judicial reforms largely focused on improving infrastructure of courts, implementation of court management systems, capacity-building through training, incorporating technology in judicial management, fostering access to justice and learning and sharing through country missions.
Whilst such structural reforms are a welcome sign, in many countries, achieving independence of judiciary has received little attention. The process of judicial appointments is a defining element in the relationship between executive and judiciary. It is of utmost importance that there is no inappropriate political interference. Judges are vested with supreme powers in making decisions over life, freedoms, rights, duties and property of citizens and with such powers come great responsibility. Any compromise in delivering justice will undermine the rule of law. Independence of judiciary is non-negotiable in any democracy and the principle of proactive transparency is fundamental to judicial appointments. A transparent, credible and robust appointment process would not only inspire public confidence but also weed out inept selection and corruption. It will confer greater authority on judiciary vis-à-vis other pillars of the government and register a positive impact on democratic governance.
In addition to the principle of transparency, increasingly there is focus on effective judicial selection and justification of those decisions. Commonwealth Latimer House Principles, 2003, pioneered by India and to which the state remains committed to lays down that “judicial appointments should be based on clearly defined criteria and a publicly declared process which ensures—equality of opportunity for all those eligible, appointments to be based on merit, and appropriate consideration given to progressive attainment of gender equality and removal of other historic factors of discrimination”.
Professional competence and merit is integral to any selection process; equally importantly, set criteria should be defined in easy language, objectively determined and consistently applied. In overseas jurisdictions, the popular elements of merit include qualifications, integrity, ability and efficiency. The Venice Commission Report on Independence of Judicial System, 2010, in taking set criteria a step ahead, provided a nuanced position that “merit is not solely a matter of legal knowledge, analytical skills or academic excellence. It also should include matters of character, judgment, accessibility, communication skills, efficiency to produce judgments, etc.” It is pertinent to ensure judicial appointments entail fair and robust assessment. It begs the question as to who will call the shots and the justification of their decisions. The elements and the process are as critical as the appointments.
Yet another principle relevant to judicial appointments is that of diversity, which has been positively addressed in some countries. In the UK, the popular misgiving that merit is incompatible with diversity has fizzled out. It is argued diverse courts are better equipped in delivery of justice and the public has greater trust in a diverse judiciary. By ensuring diversity in judiciary, there’s a clear momentum in not becoming a self-perpetuating oligarchy. In Canada, there has been a clear drive to accommodate gender as well as representative diversity; in 1980 three per cent of federally appointed judges were women, by 2003 it had gone up to 26.
There is increasing evidence that over the past two decades, establishing judicial commissions for appointment of judges has settled in well. In countries where appointments are made through an independent panel, as a first step there is extensive, all-inclusive deliberation of all stakeholders, among others, on composition of the panel, selection process of members and their roles and responsibilities including accountability measures. By and large, whilst the composition of members is primarily from the bench and the bar, some lay members from different walks of life are also meticulously selected.
Setting up of explicit constitutional and legal provisions through a statutory procedure combined with human and financial resources and a transparent and effective process can go a long way in preventing undue political bargaining in appointments. It is important that not only judiciary acts independently, but is seen to do so.
The author is an analyst in law, public policy and international affairs and an advocate at the Madurai Bench of the Madras High Court