Need of Glasnost & Peristroika in selecting Judge

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(Prof Madabhushi Sridhar)

Whether Collegium or NJAC, unaddressed issue remained is process of appointment of judges being

shrouded in secrecy. Dissenting Justice Chelameshwar raised this vital issue of constitutional governance,  “….transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”

He pointed out the problems, limitations, demerits, irregularities, resultant appointment ofimproper persons as Judges etc in the two-decade-old collegium and saw merit in the wisdom of Parliament in scrapping it and making an attempt to bring in a multi-member body giving representation to civil society, executive and judiciary to select judges of constitutional courts. It is unfortunate that four judges concluded differently about system proposed instead of giving a chance to it. When two decade experience is showing so many cracks, why an alternative should not be tried? It’s a crisis situation for judiciary as lack of transparency was exposed with this

Amendment, and hearing before Supreme Court revealed that there was a very less accountability. It is pertinent to note that ‘there were cases where the apex court ‘retraced its steps’ after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of ‘speculation’.  This statement could be better understood only by those judges who are in know of the things inside judiciary.  As rightly pointed out the records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

Justice Joseph agreed that collegium lacks transparency, accountability and objectivity. Trust deficit that affected the credibility was well explained by Justice Chelameshwar: “Deserving persons have been ignored for subjective reasons, social and other national realities were overlooked, certain appointments were delayed either to benefit vested choices or deny such benefits to the less patronized, selection of patronized or favoured persons were made violating guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium affecting the dignity, if not independence of the judges, the court, particularly the SC, often being styled as the court of the collegium, looking forward syndrome affecting impartial assessment, have been some of the other allegations”.

Fali S Nariman though described collegium as lesser evil, agreed it was opaque. None can deny powerful lobbying was thriving in secrecy in collegium system to push some people to the judiciary in well calculated manner.  None ever explained either selections or rejections. If selections are reasoned, why was not explained? Do people have right to know how their judges were selected?  If 99 judges selected belong to the families of judges, why collegium should continue? Constitutional offices like Ministers and Judges should not be reduced to the level of personal estates to be inherited indirectly. Two chief justices of states cannot mutually devise strategies to appoint their sons as judges. Open competition alone will avoid chief justices of two states mutually appointing their sons, and facilitate space for merit and competitive spirit.  The challenge to amendment in apex court brought out the deficiencies of selections, which otherwise is not accessible.

We need to understand ‘assumption that ‘primacy of the judiciary’ in the appointment of judges is a basic feature of Constitution’ is empirically flawed”. The Constitution of India nowhere prescribed to exclude the Executive totally from judges-selection- process. This collegium is the result of judicial decisions expanding the theory of judicial independence. Judicial independence is undoubtedly basic structure, but this extension is not. Former Chief Justice MN Venkatachalaiah recommended in 2002 to provide for NJAC and participation of executive and judiciary in recommendations.  Including ‘eminent’ persons in selection process is not a bane.  Concluding that civil society in India is not matured yet, is also not supported by any evidence.  The reason of Chelameshwar, J is: “To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said, adding Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances – a fundamental principle in Constitutional theory.

Give ‘information packs’ about selection of judges

The reformed law in United Kingdom provided a process of giving information packs about the selection of judges. India which retained most of pre-Independent enactments, surprisingly does not look into the reforms brought in the judges selection in UK.

When India was making the information right in 2005, UK Parliament was passing Constitutional Reforms Act, facilitating transparency in judges’ selection, in courts including new Supreme Court which replaced earlier apex judicial institution in 2009. The process is further amended by the Crime and Courts Act 2013. UK Judicial Appointments Commission is a multimember, non-departmental public body that took over responsibility previously held by the Lord Chancellor and the Department for Constitutional Affairs.

UK’s JAC came into existence in 2006 and had several sittings to select judges. It is both diverse and transparent.  It consists of five judicial members, to professional members, five lay members, one tribunal judge and one non-legally qualified judicial member. At present, two among lay persons are professors, one Lieutenant General and two others.  Twelve including the Chairman of this commission are appointed through open competition. Other three are selected by the Judges Council or Tribunal Judges Council.  They have to select candidates solely on merit, only people of good character; and to have regard to the need to encourage diversity in the range of persons available for judicial selection. The Appropriate Authority (either Lord Chancellor, Lord Chief Justice or Senior President of Tribunals) can accept or reject a JAC recommendation or send it back to Commission for reconsideration, for which JAC has to give reasons.  The JAC selects only one person, and if two are found equally meritorious, one can be preferred to increase diversity.

Commission will consult first Minister in Scotland, Wales and Northern Ireland also. For appointment of judges of Supreme Court in UK, the Lord Chancellor (Minister in Cabinet and second Great Officer of State who is in charge of independent functioning of courts) will ask President (Chief of Supreme Court) to convene a Selection Commission. President presides, there will be no deputy President in this Commission. Senior judge (not of Supreme Court) from anywhere in UK will be other member. If President is to be selected, outgoing President cannot sit as  a member and it should be chaired by non-legally qualified member.

After this seven selection commissions have sat in UK. For the first time in 2008-09 the selection commission decided to advertise vacancies inviting open competition, which practice continued with subsequent commissions. On each occasion an Information Pack is drawn up for potential applicants, which is publicly available. From 2009/10 onwards the advertisement and Information

Pack have been placed on their official website. The Information Pack sets out, amongst other matters, the criteria the selection commission uses to assess applications. India needs such information packs as part of judicial glasnost and selection perestroika.

(The author is Central Information Commissioner and can be reached professorsridhar@gmail.com)

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