MAINS 2016 CURRENT AFFAIRS GENERAL STUDIES II 23. JUDICIAL APPOINTMENT

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1 MAINS 2016 CURRENT AFFAIRS GENERAL STUDIES II 23. JUDICIAL APPOINTMENT Article 124 of the Constitution provides that the government will appoint judges in consultation with the Chief Justice of India. To make independence of judiciary meaningful, the Supreme Court in the 1990s gave a novel interpretation to Article 124 to mean that selection of judges was the sole responsibility of a collegium of judges headed by the CJI. India s judicial appointments process has been the focus of a long struggle between the executive and the judiciary. The two-decade old system of collegium, a group of justices in a closed room, deciding who gets to don the robe, is an Indian innovation created in the name of judicial independence. In reality it has produced is an opaque legal justice system. It is time to change. The justice system is caught in a tussle between the committee of Supreme Court justices and the government over who has the final say on appointing judges. SUPREME COURT DECISION The Supreme Court in Supreme Court Advocates-on-Record-Association and another v. Union of India (2015) struck down the National Judicial Appointments Commission (NJAC) Act and 99 th Constitutional Amendment Act calling it unconstitutional. The Act was meant to replace the Collegium with a commission for the appointment of judges to the highest courts, with a role in the process for the political class and civil society. The Court finding the NJAC Act violative of the Judiciary s independence held it as invalid. The NJAC case brought into sharp focus the division between the legislature and executive on the one hand and the judiciary on the other over the seminal issue of how, and especially by whom, judges to the High Courts and Supreme Court are to be appointed. PRESENT MECHANISM TO APPOINT JUDGES The Supreme Court struck down the NJAC and restored the collegium system with immediate effect. In case of appointments to the Supreme Court (SC), a four-member SC collegium and the Chief Justice of India (CJI) short-list names of eligible candidates from among various High Court (HC) judges and make final recommendations to the government about those who are to be elevated to the apex court. In case of appointments to the High Court, a three-member High Court collegium, headed by the Chief Justice of the HC, decides the list of candidates and makes recommendation to the Chief Justice of India. The CJI examines these recommendations along with two senior-most judges of the SC and makes final recommendation to the President through the government. A Public Interest Litigation (PIL) has been filed in SC against collegium system. A lawyers' body (National lawyers' campaign for judicial transparency and reforms) has approached the Supreme Court for scrapping of collegium system for appointment of judges and replacing it with a mechanism under which selection would be made by a public body independent of both the executive and the judiciary. It said that only elite lawyers were being selected by the Supreme Court and High Courts collegium for appointment of judges and many deserving advocates were being neglected and the collegium system was discriminatory and opaque. A member of the collegium itself has called for changing its opaque ways. Justice Chelameshwar, refused to attend its meetings, protesting that nothing there was recorded. He alleged that collegium lacks transparency and said that all judges must give reasons for their decisions on appointments and transfers of judges. Three former Chief Justices of India- Justices K G Balakrishnan, P Sathasivam and R M Lodha- said that time has come for transparency in the Supreme Court collegium proceedings for selecting judges and lent support to Justice J Chelameswar's stand. There is no question that the appointment process for the senior judiciary should be made more transparent. The latest call for reform is not being forced by the executive; it has come from a senior judge who is himself a member of the collegium. MEMORANDUM OF PROCEDURE (MoP) In a bid to streamline the system and to make more transparent, the Supreme Court directed the Centre to frame Memorandum of Procedure on appointment of judges to the High Courts and the Supreme NEO IAS , , Page 1

2 Court, in consultation with the President and the CJI. It should take into confidence the four seniormost puisne judges of the SC, who are part of the collegium. The MoP is a document which guides the appointment of judges to the Supreme Court and the 24 High Courts. At present, there are two MoPs one for the Supreme Court and the other for the High Courts. While retaining the Executive s powers to draft the MoP, the Bench has ensured that the CJI plays a dominant role in the finalisation of the procedure of judicial appointments. The Bench s order touched four points: one, how the Collegium can be made transparent; two, the eligibility criteria to be fixed for persons to be considered suitable for appointment as a judge; three, a mechanism to receive and deal with complaints against judges without compromising on judicial independence; four, whether a separate secretariat is required, and if so, its functioning, composition and powers. The Government came up with a MoP which was eventually not accepted by the Supreme Court. The major areas of contention included government s right to reject names suggested by the Supreme Court Collegium on the grounds of national security, age profile recommended by the Government to be appointed as judges in higher judiciary-minimum 45 in High Court and 55 in Supreme Court and the role of the collegium was limited to accepting or rejecting government suggestions. REVISED MoP The MoP was revised after a Supreme Court bench asked the Centre to rewrite it. AREAS OF DISPUTE Judiciary unanimously rejected almost all major suggestions made by the Centre. The government has decided to confront the higher judiciary by sticking to its proposed MoP that will guide the Supreme Court collegium on appointment of judges to the apex court and high courts. 1). EXECUTIVE ROLE IN APPOINTMENT: As per the MoP, government has the right to reject any recommendation of the collegium in the national interest. Once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the collegiums. But government will communicate to the collegium the reasons for rejecting any name recommended by it. Defining the conventional primacy of judiciary, the government accepts that no person not recommended by the judiciary can be appointed a judge but contends that the interpretation that the government cannot reject an inappropriate proposal is not true and cannot be accepted. The government feels that the argument that the executive has no role to play in appointment of judges to the higher judiciary is incorrect. Judges are unhappy at the proposal of the government that says it is not bound to reconsider a name it has rejected even after reiteration by collegium. The Supreme Court collegium has told the government that the latter may convey reasons for any objection to a collegium recommendation but if the collegium still insists on the recommendation, the same should be binding on the government. National interest or public interest must not be equated with any party's or government's interest. Political parties will win and lose elections. Every incumbent government will have to yield to another government after facing defeat at the election. But the institution of the judiciary cannot be allowed to be politicized by stalling the appointment of judges in the national interest. It is a concept so vague as to invite abuse. It is attempt to usurp the power to veto the appointment of any judge through the gateway of national interest. The government was given a limited role as the draftsman of the MoP, but it utilised this slender opening to exclude the judiciary by invoking the mantra of national interest. It is also somewhat strange that the government positions itself as the protector of national interest as if the court will insist on a name going through where these are threatened. The unease over the ruling party s nominations, to key social, cultural, educational, regulatory and other institutions of persons perceived to be closer to the party than to eligibility, is a testimony that acts against the Government s claim for role in appointment for national interest. This gives rise to apprehension of opening the judicial door to political influence. 2). WIDER CONSULTATION: MoP states that names for judges appointments could be suggested by all judges of the bench, the bar, Attorney General(AG) in case of Supreme Court and Advocate General in case of High Court. Chief Ministers also have the right to recommend names to the respective High Court collegiums. The Centre's proposal to vest the AG at the Centre and advocates general in states with a say in recommending candidates for appointment and elevation of judges gives the governments an indirect say NEO IAS , , Page 2

3 in naming candidates for the posts since the senior law officers are political appointments. Although the final word would rest with the collegiums, allowing judges, general and chief ministers, advocate generals the power to recommend names to the collegium will usher in widening the zone of consultation. The idea is to enrich the consultation process. Judges of the concerned high court would know better about the nominees since they have argued and appeared before them. The government feels that there should be a wider consultation to select best candidates, citing Article 124 (2) of the Constitution, to buttress its point that there is a power with the President -in effect the government -to consult other judges of the Supreme Court besides the collegium if it finds a recommendation not acceptable to it. The government's proposal on high court judges had its genesis in a practice adopted by a High Court chief justice who was recently elevated to Supreme Court. The judge used to consult other judges before recommending names for elevation, seeking two names each from them to create a wider pool of candidates. The names were then shortlisted by the HC collegium before recommendations were sent to the Supreme Court and the government. 3). PERMANENT SECRETARIAT: MoP provides for a Secretariat, which will deal with complaints and also appointment of judges has been included in the MoP. It also lay down rules for appointment of retired judges who will screen candidates to be considered for appointment in the apex court and HCs. The retired judges, to be appointed with the consent of the CJI and the chief justices of the respective high courts, will also be tasked with evaluating complaints against the judiciary and recommending action. The proposal to set up a secretariat manned by retired judges to assist the collegium in the selection of judges must be welcomed as it addressed the judiciary s concerns over possible unwarranted executive interference in judicial appointments. While the Supreme Court has concurred with idea of a permanent secretariat, it has objected to the duties of this body as defined by the government in its MoP. 4). CAP ON THE APPOINTMENT: MoP puts a cap of 10% or a maximum of three senior advocates who can be elevated directly from the Bar as Supreme Court judge. By rejecting government's suggestion to set a cap of 10%, the Court has said that it is free to appoint as many as it finds deserving and cannot be bound by the government-framed MoP that puts a cap. POSITIVE FALL OUTS 1). SENIORITY CUM MERIT CRITERIA: According to MoP, appointment of Judges in the Supreme Court, the prime criteria should be seniority as Chief Justice/ judge of the High Court as well as merit and integrity. In picking SC judges, preference should be given to the Chief Justices of High Courts, keeping in view their inter-se seniority. In case a senior Chief Justice of a High Court is being overlooked for elevation to the Supreme Court, the reasons for the same should be recorded in writing. MoP underlined clear categories of exceptions -geographical criteria; representation to Women, SCST etc; outstanding merit; serious questions of integrity -to be mentioned over inclusion or exclusion of candidates. Evaluation of judgments delivered by a High Court judge during the last five years and initiatives undertaken for improvement of judicial administration should be a yardstick of merit for promotion as Chief Justice of a High Court. 2). TOWARDS TRANSPARENCY: MoP details a mechanism for an elaborate vetting process of names recommended for High Court judgeship through appraisal committees to be set up in High Courts. The appraisal committees are to be made up of sitting or retired judges, jurists and academicians. The appointments to these appraisal committees would be made by the Chief Justice of the HC. The High Court committees would screen the names of the candidates, their backgrounds, the number of cases they have argued as lawyers, etc, before forwarding them to the High Court collegium. Once the High Court collegium clears certain names, they would be sent to a similar appraisal committee at the Supreme Court. This apex-level committee would again sift through the names before they are finally referred to the SC collegium. This committee at the Supreme Court will serve as the two-fold filtering mechanism. It will not only conduct evaluation for the Supreme Court, but it will also objectively evaluate the recommendations made by the High Courts as the record of the High Court appraisal committee will come before the Supreme Court committee. The two-fold vetting process one by the respective High Court appraisal committee and then by the Supreme Court committee would ensure transparency in judicial appointments. NEO IAS , , Page 3

4 3). TIMELY JUSTICE DELIVERY: A High court should not have an acting chief justice for more than three months, while awaiting appointment of a full-time Chief Justice by the Collegium, according to the revised MoP. This will help in quick appointments in vacant posts leading to timely justice delivery. DEVELOPMENTS AFTER NEW MoP GOVERNMENT PLANS TO SET UP SECRETARIAT The government has proposed setting up a secretariat despite resistance from the Chief Justice of India and the Supreme Court collegiums as the higher judiciary believes it will impinge on independence of judiciary. In a decision taken at the highest level, the government has resolved not only to have a secretariat for the collegium in the Supreme Court and in all High Courtss but also lay the rules for appointment of retired judges who will screen candidates to be considered for appointment in the apex court and High Courts. By introducing the screening mechanism through the secretariats, the government seems to have decided to shelve the proposed Judges Accountability Bill to avoid any confrontation with the judiciary. As of now, there is no formal mechanism to deal with complaints against judges. All complaints against the judiciary are referred to the Chief Justice of India. The government is of the opinion that the higher judiciary should not see these measures as an infringement on the independence of judiciary since appointment of retired judges for the secretariat would be made by the Chief Justice of India in case of the secretariat for the apex court while chief justices of High Courts would do so in states. The retired judges will be working under the CJI and the chief justices and hence there should not be any misgivings on the executive's interference in the affairs of the higher judiciary. GOVERNMENT ACCEPTED SOME RECOMMENDATIONS The Central government has accepted some recommendations of the Supreme Court collegium on draft MoP for appointment of judges, while reinforcing its views regarding certain other key clauses on which the collegium had raised objections. The government has, agreed to lift the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court. While the government had earlier proposed merit-cum-seniority as the criterion for elevation of judges, only seniority is now being considered to be the main condition. CONCLUDING REMARKS AND SOLUTION The Supreme Court was keen to streamline the system so as to make it more transparent. There was hardly any need for the Supreme Court to involve Government in supplementing the MoP for implementation of the principles laid down in the Second Judges and the Third Judges cases. Yet, to be fair to the government, the court provided this opportunity to them. The procedure, the Government formulated for appointment of judges overrode the judicial verdict. The Supreme Court struck down the NJAC. The court merely wanted to improve the existing draft MoP in consultation with the CJI. It is unfortunate that the government tried to seize this opportunity to usurp veto power over the Supreme Court collegium in contravention of the clear judicial verdict. If the government has any misgivings about an impending appointment of a judge, then it must fully share information with the collegium, and decide in a coordinated manner on the constitutional principles of Article all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court. The solution to the present impasse is not to hand over the final say in appointments to the political class but for the senior-most judges to devise a transparent system which can then be followed. There is no doubt that the appointment of senior judges is effectively in the hands of a group of powerful judges, who, along with the chief justice, form a majority in the collegium. There is no reason why a laid-down procedure and criteria for selection should not be followed and reasons for decisions on candidates recorded and supporting evidence attached. An effective democracy requires a judiciary that inspires confidence. That requires a judicial appointments system that is fair and transparent. A system that provides anyone - from the judicial service or the bar - interested in a judgeship the opportunity to apply. Making all vacancies public and setting out clear eligibility criteria will allow for this. India needs such a democratic process of appointing judges that would ensure true judicial autonomy. A blame game serves little public purpose. NEO IAS , , Page 4

5 To avoid wrong appointments, the government in consultation with the chief justice of must introduce an all-india judicial service. Entry into service will be through a body like the Public Service Commission. Those that make it to the service should have the opportunity to go all the way to the top, the Supreme Court. To ensure impartiality, the whole process direct recruitment and lateral entry can be overseen by a Judicial Services Commission, made up of full time,not ex-officio, members chosen from key areas of public life. Britain has something like this in place and it works. This is a decades old demand but it has not been implemented on account of vested interests both in the political and judicial systems. Their intention is to perpetuate nepotism and favouritism in judicial appointments. This goes against objectivity, fairness, sensitivity and professional approach to the judiciary s working. Substantive proposals suggested by scores of civil society representatives, are gathering dust. The only way to break this impasse and ensure that a kernel of reform is salvaged from the interstices of a power struggle is to make all future correspondence on the MoP public. This will transparently demonstrate how substantive reform is being effected or stalled and serve as a precursor to infusing a culture of transparency in judicial appointments. Otherwise, the country will suffer the consequences of a bitter power struggle where whoever wins; the cause of justice for the people of India loses. Public interest, especially the principle of judicial independence, will be better served if the procedure under preparation is thrown open to a debate. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development. VACANCY IN JUDICIARY Large vacancies in the High Courts were a result of the continuing stalemate between the judiciary and the government. Filling of the vacancies is stalled since the enactment of the National Judicial Appointments Commission law in early The appointments of 100 high court judges, recommended by the collegium headed by chief justice of India, has been held up following difference of opinion between the Union government and the collegium over a contentious clause of national interest in the MoP for selection of judges. On the other hand, the apex court Collegium has rejected at least 38 recommendations of various High Court collegiums for appointments of High Court judges that were vetted and cleared by the Centre. The Supreme Court's decision effectively questions the high court collegiums too, but the final vetting and recommendations is done by the Centre. The number of vacancies has grown to 470 out of the sanctioned strength of per cent of the High Court judges are vacant or thehigh Courts are functioning with 609 judges. Eight High Courts are functioning with acting Chief Justices. Against a perceived requirement of about 50,000 judges, the country has a judicial strength of a mere 18,000, while almost 2.24 crore cases in various courts are pending as of August 12, Chief Justice of India lamenting Government's inaction in increasing the number of judges from the present 21,000 to 40,000 to handle the avalanche of litigations. Union law minister denied that the government was delaying judges' appointments. He said since January this year at least 51 new judges have been appointed in high courts while 89 additional judges have been made permanent. He said the government would like all appointments to be made on merit basis and after ensuring fair geographical representation. However, the Chief Justice was not merely drawing attention to delays on the part of the executive in clearing appointments to the higher judiciary; he was also hinting at the absence of any significant initiative to increase the strength of the subordinate judiciary and the lack of empathy for poor litigants and under trial prisoners, who suffer the most because of judicial delay. The situation demands an ambitious infusion of manpower and financial resources, for which even State governments will have to contribute immensely. Government might be working on the draft Memorandum of Procedure (MoP) for appointment of judges, but the task did not give them the excuse to paralyse the judiciary by simply sitting on appointments and transfers. Vacancies might be affecting the criminal justice system but pendency and vacancies cannot justify non-transparent appointments. NEO IAS , , Page 5

6 If the government is not reconciled to the collegium system of appointments, then it should work to revive the NJAC Act in such a way that it will survive judicial scrutiny. But, dragging its feet on specific judicial appointments is hardly the way to find a better answer to the general question of how judges should be appointed. High court vacancies are now north of 40%.If government's suggestions have been unacceptable, the collegium should itself propose reforms as even the bench that rejected NJAC noted reforms are needed. Judicial reform is now as vital as economic reform to secure India's future. Practical solutions can be found if the two branches come together. In a matter that requires a good deal of consultation and cooperation, this incipient confrontation must not be allowed to grow, for that would be as injurious to the public interest as the current crisis facing the judicial system is. Instead of wallowing on their respective sides of the legal logjam, both government and the judiciary must show much more teamsmanship not only to finalise a new procedure to appoint judges but also to implement broader reforms to remedy judicial delays. DELAY IS A MULTIFACETED PROBLEM At the same time, vacancies are not the sole reason for debilitating judicial delays. One factor is the pressing concern that law is unclear and inconsistent. This necessitates constant and overlapping appeals clogging the system. While disposing such cases, very rarely timelines followed. In the recently enacted Commercial Courts Act, 2015, strict timelines as well as case management provisions have been carefully incorporated. Unfortunately, similar provisions in the Code of Civil Procedure have been held by the Supreme Court to not bind the inherent discretion of courts to extend time or grant repeated adjournments. In the same vein, the potential for alternative dispute resolution (ADR) methods, such as arbitration, to reduce judicial delays has not been explored owing to the constant interference of courts. Constant interference has not been limited to ADR but is endemic. A recent study found that the Supreme Court admits 41 per cent of all cases filed before it for hearing, a staggering number for the highest constitutional court of a country. It is little surprise that litigants take a chance before the higher judiciary since securing an admission is often perceived as a game of roulette. This is especially so since the quality of justice, particularly in the lower judiciary, is often perceived as unsatisfactory. These factors are merely illustrative of the multifaceted nature of delays. They are however united by a common thread that, unlike filling of vacancies, they are all within the remit of the judiciary s self-correction. Many other doable reforms can help eliminate the pendency problem. For example, in the UK and Singapore the specification of time limits has minimised judicial delays. Indian courts need to likewise get out of the chances by chances trap of endless adjournments. Another sensible measure is to discourage frivolous cases alongside the appeals clogging up our higher courts. To illustrate, the US Supreme Court admits around 1% of all cases filed before it for hearing. But the most urgent task is to resolve the MoP for appointment and transfer of judges, where an eyeball to eyeball confrontation between government and the collegium has worsened the legal logjam. Nothing has moved since 1987 when the Law Commission had recommended increase in the number of judges from then 10 judges per 10 lakh people to 50. Following the Law Commission's recommendation, the Supreme Court in 2002 had also supported increasing the strength of the judiciary. A Parliamentary Department Related Standing Committee on Law then had also recommended taking the judge to people ratio to 50 from 10. As of now, the judge to people ratio stands at 15 judges to 10 lakh people which is way less than as compared to the US, Australia, the UK and Canada. The Law Commission, in its 245th report two years ago, had pointed to the impracticability of using the number of judges per million population as a criterion to assess the required judicial strength. Instead, it had suggested a rate of disposal method by which the number of judges required at each level to dispose of a particular number of cases could be computed based on analysis. MODEL QUESTION 1. Free and fair selection of judges can be said to be at the heart of a credible judiciary. Whether the proposed Memorandum of Procedure for appointment of Supreme Court and High Court Judges ensures transparency than the collegium system? (200 words) NEO IAS , , Page 6