Overhaul of Judicial Appointments Procedure

The passing of the National Judicial Appointments Commission Bill, 2014 in Lok Sabha today marks yet another milestone in the maturing Indian democracy. The passing of this historic bill follows allegations of sexual misconduct by a handful of judges and the sparking off of a big controversy by Justice Markandey Katju through his blog post in which he wrote that in the year 2004, a corrupt judge was given an extension and later a permanent post due to strong political backing. He wrote that he himself raised concern about the conduct of this judge and after due probe from CJI, his doubt was found to be true. However, this judge had political backing from a political party in Tamil Nadu, and this party threatened to withdraw the support to the UPA government if this corrupt judge was not given an extension. He also alleged that a prominent Congress leader arranged extension to save the UPA government. After his blog post, several parties and social groups raised concern over political interference in posting of the judges. Currently there are 24 high courts in the country with 800 judges and 275 vacant posts.

However whatever be the recent issues surrounding the judiciary, it remains a fact that the Indian judiciary is one of the world’s most independent, impartial, assertive, functioning judiciary. The judiciary of India has protected and maintained the sanctity of India’s Constitution from mala fide attempts to contort it in the past. It has protected the fundamental rights of the citizens since the 1950s. It innovated to create novel instruments to expand justice in the Indian society in recent years like the PIL, the suo moto cognizance taking of important matters of public interest, launching of free legal clinics in rural areas, issuing strict directives in national interest, progressing the laws towards uniform civil code, etc. The cases involving judicial activism by higher courts have risen in recent years, but the judiciary has never crossed the thin line and indulged in judicial overreach.

As time progressed and the democracy matured, the judiciary innovated to create the Collegium System for appointment of the judges to the courts under the able leadership of ex-CJI Justice J.S. Verma. The Supreme Court of India’s collegium system, which appoints judges to the nation’s constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases. Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges.

But the times have changed now and the Collegium System has outlived its relevance. The need of the hour is to bring in a transparent, fair, reliable process for the appointment of judges to the highest echleons of the judiciary. “Judges appointing judges has become a total failure and it has become like a club membership”,opines former judge of the Madras High Court Justice Chandru. This system is perceived to be discriminatory because it is inherently impossible for the collegium judges to personally know everything about all the eligible practising members of the Bar.

Responding to this crisis, successive governments have introduced bills relating to the overhaul of judicial appointments process since 2003, but neither of them materialized and all lapsed. After winning by a historic mandate by gargantuan numbers and recent build-up of tension relating to the issue, the current government has successfully got the National Judicial Appointments Commission Bill, 2014 passed in the Lok Sabha. A Constitution (121st Amendment) Bill, 2014  was also introduced to allay fears of the judiciary,  the composition of the commission has been given a constitutional status to ensure that any future government does not tweak the composition through an ordinary legislation. While the constitutional amendment bill requires two-third majority, an ordinary bill requires a simple majority. After any Constitutional amendment bill gets parliamentary nod, it is sent to all the states and 50 per cent of the state legislatures have to ratify it. The process could take up to eight months. After ratification, the government sends it to the President for his approval. While The Constitution (121st Amendment) Bill, 2014 seeks to put the proposed commission and its entire composition in the Constitution, the other legislation lays down the procedure to be followed by the proposed body for appointment of Supreme Court judges and transfer and appointment of chief justices and other judges of the high courts.

Key features of Judicial Appointment Bill

As per the proposal, Chief Justice of India will head the NJAC (National Judicial Appointments Commission). Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the law minister will be the other members of the proposed body. The two eminent personalities will be selected by a collegium of Chief Justice of India, the Prime Minister and leader of the opposition in Lok Sabha or the leader of the single-largest opposition party in the Lower House. The provision of having the leader of the single-largest opposition party has been made as there is confusion over Congress getting leader of the opposition post in Lok Sabha. One of the eminent persons will be nominated from among the persons belonging to the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women. The term of the two eminent persons will be for a period of three years with a provision that they cannot be renominated. The bill provides that if two members of the NJAC do not agree, then the appointment will not go ahead. It also provides that the President can send back the recommendation of the panel back for reconsideration. But if the panel reiterates the recommendation “unanimously”, the President will have to go ahead with the appointment.

In short:-
1. Establishment of a six-member Judicial Appointments Commission (JAC), who will provide recommendations to the President on the appointment and transfer of judges.

2. The six members include the Chief Justice of India, Law and Justice Minister, two senior-most judges of the Supreme Court and two eminent persons.

3. The choice of these ’eminent persons’ will be left to the Prime Minister, Chief Justice of India and the Leader of Opposition Party or the leader of the largest party in Opposition.

4. These two eminent persons should belong to the Schedule Caste, Schedule Tribe, women or minority community, preferably by rotation and will have a tenure of three years.

5. The entire process under the JAC is to ensure transparency in judicial appointments and transfers.

Judicial Appointments in India

The Bill addresses the concerns of corruption in judicial appointment head-on and reforms the institution of judiciary to a considerable extent. Although the bill seems crafted to perfection, another feature which should have been included in the appointments procedure is televising the whole process of selection of candidates for the post. This is a pratice followed in USA and was originally demanded by Justice Katju (http://justicekatju.blogspot.in/2014/07/my-proposal-regarding-national-judicial.html). This would have made the process more clear, open, fair and accountable. Also, other features could have been incorporated from the U.K. model. In U.K., the members of the Bar who are eligible for being appointed as a Judge of the High Court apply for judgeship through a public notification on the JAC’s website and newsletter. Shortlisted candidates are then invited for a selection day for a panel interview, role play, situational questioning and presentation. 

All in all, there is no dearth of constructive and innovative features which can make the judicial appointments procedure transparent and inclusive. Reforms will continue to happen in the Indian democracy periodically to make it more inclusive, impartial, just and efficient and today’s passage of the bill has become yet another crucial milestone towards it. Jai Hind.

-Ribhu V.

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