Appointment of judges is a vital function in a democracy based on the rule of law and whose Constitution guarantee fundamental rights. A Bill of Rights, however elaborate, would be useless unless it is effectively enforced by the judiciary. In this context, the indispensable qualities required of a judge of the superior courts are ability, integrity and above all, independence, not merely from the executive but from all external forces and agencies and also from individual beliefs and predilections.
In view of the past historical experience of appointment of ‘convenient’ judges by the executive, our Supreme Court devised a unique method of appointment of judges by a judicial collegium which comprises five judges of the Supreme Court headed by the Chief Justice of India and three judges of the high court headed by the Chief Justice of the state. The curious part is that the executive which is the largest litigant has no role to play in the matter except in a case where it has information which has a bearing on the appointment of a potential judge, it may forward the same to the collegium. The collegium, however, after considering it, may not find it credible and can proceed with the proposed appointment of the judge. In sum and substance, it is a case of judges appointing themselves, a feature which is not found in other mature democracies like the UK, US, Canada or Australia. There have been calls from various quarters for reform or even abolition of the present system of collegium for appointment.
The National Commission to Review the Working of the Constitution headed by former Chief Justice M N Venkatachaliah in its report dated March 31, 2002, recommended that a National Judicial Commission for appointment of judges of the Supreme Court be appointed comprising the Chief Justice of India as chairman, two senior most judges of the Supreme Court, the Union Minister for Law and Justice and one eminent person nominated by the President after consulting the Chief Justice of India as members. Proposals in this regard have been made by different bodies. The Union government has come out with a bill which has not been enacted into law.
At present, there is widespread dissatisfaction with the actual working of the collegium system. The Punjab and Haryana High Court Bar Association recently passed a resolution supported by over 1,000 lawyers in which it is stated that “it has now become a matter of practice and convenience to recommend the names of those advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices” without reference to their merit. The resolution alleges that nepotism and favouritism is writ large. The statements in the resolution about names recommended by previous Chief Justices of Punjab & Haryana High Court may not be correct. The resolution, however, manifests the general dissatisfaction with the working of the present system and highlights the necessity and urgency of enactment of a statute comprehensively dealing with the subject of judicial appointments. Before his recent demise, Justice J S Verma, the author of the First Judges’ case which evolved the collegium system, had expressed his disappointment with its working. The efficacy of a National Judicial Commission will depend upon its composition which though tilting in favour of members of the judiciary should be broad-based. There is also a demand that the reasons for appointment of a particular judge and rejection of other judges should be briefly disclosed as that would impart transparency to the process.
A moot point is whether a National Judicial Commission can be established by a parliamentary statute or would it require a constitutional amendment? In the latter case, will the government muster the required majority of votes in both the Houses of Parliament? Hopefully, the Opposition will cooperate because the matter is of great national importance and transcends political considerations and brooks no further delay.
solisorabjee@gmail.com
Sorabjee is a former Attorney General of India