Equal say for Executive in Judges’ selection

Under India’s Constitution, every Supreme Court Judge shall be appointed by the President after consultation with such of the Judges of the Supreme Court (SC) and of the High Courts in the States as the President may deem necessary for the purpose.

It also says that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

In the case of High Court Judges, the appointments shall be made by the President after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

In terms of the judgment delivered in 1993 in SC Advocates-on-Record Assn vs Union of India , a “collegium” headed by the Chief Justice of India (CJI) and including four other senior-most judges has the final say in the appointments of SC Judges, leaving to the President only the chore of signing on the dotted line. For all practical purposes, in the matter of appointments to the higher judiciary, the President (in whom, as per the Constitution, the executive power of the Union is vested) has been reduced to the position of a nonentity and a bystander.

TOTAL NEGATION

One Branch of the Government in a democracy should not be given the exclusive jurisdiction to lay down the process of selection and appointment of its members to itself.

Such an autocratic exercise of any power in any sphere of governance is bound to cause serious damage to public interest, and the danger is all the greater in the case of higher judiciary which the people expect, like Caesar’s wife, to be above suspicion.

I have been repeatedly urging in these columns the necessity to revisit the decision for the reason that the total negation of any role for the Executive in the selection process has radically and unilaterally altered a basic feature of the Constitution, and that checks and balances are imperative to ensure that the persons selected as Judges are of outstanding calibre and merit. (See “Selection of Judges calls for change” May 27, 2009).

The Law Commission also has been asking for a change in the existing mode of appointment of Judges. For instance, in its 214{+t}{+h} Report, the Commission, presided by a former Supreme Court Justice, A.R.Lakshmanan, had examined the law on the subject, various recommendations of Parliament Standing Committees and laws of America, Australia, Canada and Kenya where the Executive is the sole authority to appoint the Judges or the Executive appoints them in consultation with the Chief Justice of the country.

The Commission observed that the Judges constituting the SC collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffered from lack of adequate information.

IMPERATIVE CRITERIA

Thus, Law minister Kapil Sibal is entirely right in saying that the collegium system has not led to the best people being chosen as judges, satisfying the imperative criteria of complete transparency and objectivity and widest possible consultations within the Executive and the Judiciary.

Expectedly, though, some of the CJIs of the Supreme Court have been asserting that the system has worked well and should continue.

As recently as on January 7, the Supreme Court rejected a petition suggesting a revision of the system and bring it in conformity with the Constitution.

I am glad that the upsetting of the Constitutional balance under the present arrangement is now being sought to be rectified by a Constitutional Amendment which will replace the collegium system by a Judicial Appointments Commission to decide on the appointments and transfers of Judges.

The precise wording of the Amendment has not been finalised, but all indications are that it will be a six-member Commission headed by the CJI and comprising two other Supreme Court judges, the Law Minister and two eminent jurists nominated by the President as members. The Government is said to be open to the inclusion of the Leader of Opposition in the Commission.

As in other long-standing democracies, the national Bar Association too should be considered a stakeholder in the administration of justice and involved in the selection and appointment of the higher judiciary.

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