Proposal To Form Judicial Appointment Commission (JAC):
In a significant decision, the union cabinet has on 22/08/2013 approved the constitutional amendment bill for setting up a judicial appointment system that will replace the existing secretive system of appointment which is known as collegium system. The system is in place for the last two decades to appoint the Supreme Court and the High Court judges. This proposed commission is to replace the old system of collegium not just for appointments, it will also have powers of transfer. In fact the government has been for quite sometime contemplating to bring in this kind of change. But due to some resistance from the judiciary, somehow the government was dithering on the issue. But now there appears to be some political consensus and that is why the government wants to go ahead with the decision and the constitutional amendment could be placed in the parliament in the week starting 26/8/13. What is the significance of this decision?
It may bring more transparency in the appointment of judges. It was a secrete system of collegium till date and if we have this the judges appointment commission which will be headed by the Chief Justice of India along with two judges from the Supreme Court and two eminent persons, Prime Minister and law minister etc. Whatsoever may be the structure of this commission, it will bring more transparency in the appointment of judges and that will strengthen the basic roots of democracy. Because till date, we know how many seats of the layers and other judges is vacant in the high courts and Supreme Court. We don't know when the judges are going to be appointment, how they are going to be appointed, there is no advertisement for the appointment of judges and no applications are called, no recommendations are called from the BAR associations from High Court or Supreme Court or any other BAR associations. So it is a secrete system of collegium which is being decided by the 5 senior most judges of the High Court or 5 senior most judges of Supreme Court. The senior most judges of the High Court can recommend names of anyone who qualifies to be a High Court judge (having experience of 10 years and age around 45), to be High Court judge to the Supreme Court and then the 5 senior most judges of the Supreme Court will decide whether they should be appointed as the judges of High Court or not. Unless or until there is a contrary report from the Intelligence Bureau (IB), they are through.
How has this system came into existence? If we look at the Article 124 and Article 217 of the Constitution (under which the judges of High Court and Supreme Court are appointed), the provisions don't talk about this system of Collegium?
Only in the case of SP Gupta case 1993, wherein to avoid the interference of the executive or the government, this kind of collegium was incorporated by the Supreme Court and there were nobody to challenge it.
This system has been in place for the last two decades. India is the only country where the judges appoint judges. The executive has not been comfortable with this system. In fact, the government has been contemplating on changing this kind of system for quite sometime. Several law ministers have termed it as the extra-constitutional system since the Constitution didn't provide for it. How the new system will change it and what are the benefits that will accrue due to the new system?
There have been several controversies on several appointments and the BAR associations of different states and the Supreme Court also have been making hue and cry over such appointments. There were some contrary reports also from IB on some of the judges to be appointed in the High Courts. So this system is a secretive system and it must be made transparent. We hope and trust that this Judicial Commission on appointment of judges will bring some transparency in the appointment of the judges at the High Court and the Supreme Court levels. In fact there should be an All India Judicial Services Commission which should appointment judges right from the MM to the High Court. This proposal has been pending for several decades.
One of the problems of this Collegium system is that we would never know when somebody's name has been recommended or why it has been recommended. In some cases, it was said that better candidates were ignored be it fresh appointments to the High Courts or be it the elevation from the High Courts to the Supreme Court. We have seen controversies in many cases. For instance the name of Justice Dinakaran was recommended by the Supreme Court Collegium for appointment as a Supreme Court judge and then the media reports came out that he was involved in many land grab cases etc., and finally his name was dropped. The same system didn't recommend the name of the Justice AP Shah and it recommended the Soumitra Sen as the judge of the Calcullta High Court, he had to face the impeachment proceedings and finally he had to resign. What is the problem with this Collegium system apart from being secretive?
The problem is that only the 5 senior most judges of the Supreme Court will clear the name of the person to be appointed as the judge of the High Court or to be elevated as the judge of the Supreme Court. If two persons or even one person is not in favor of the appointment of a particular judge, he can't be appointed or elevated as judge. It must be unanimous almost. Though sometimes they clear it with majority. But if two persons are not in favor and three are in favor, then there will be controversy. How this 5 judges can decide the fate of the appointment of the High Court judges or Supreme Court in a democratic country in India? Without advertising it, without asking for any recommendations from BAR, without any criteria, what is the basis for appointment? This has been the major drawback in this collegium system. That is why we all say that the appointment of the judges in a democratic country must be transparent.
The current composition of the National Judicial Commission will comprise of the Chief Justice of India, two senior most Supreme Court judges, two eminent persons, justice secretary, law minister. Earlier there was a proposal that the leader of the opposition should be included in this panel. But now the fresh note circulated by the Government ditches it. Is it a good decision to drop the name of the opposition from this Commission?
Whatsoever may be the structure of this commission involving the Supreme Court Judges, High Court judges, Secretary of law, eminent persons from the society or the other, it hardly matters. The basic thing is that how this commission will work? What will be the basis of appointment of judges? Whether the post will be of advertised, whether applications will be invited, whether recommendation from the BAR associations will be called for before conceding for a particular person to be appointed as a High Court judge. What will be the basis for structure of this commission, what will be the mandate of this commission these are important.
Recently all BAR associations of various states met the Law Minister Kapil Sibal and they demanded that whatever new system is coming, the BAR leaders should be part of that and they should be consulted. At least some representatives of the elected BAR should be on this panel?
They may not be in the panel. The criteria of the selection of the judges must be transparent. We must know how many seats are vacant in a High Court and in which High Court they are vacant, when the vacancies will come, who can apply and how his application on merit will be decided. Because it can't go secretively that you invited 5 persons applications and you recommended 5 persons' names and they are appointed as High Court judges overnight keeping the BAR council in the dark.
One of the main criticisms of the Collegium system is that the there are always divergence views in the Collegium. That is why they failed to appoint the number of judges they are supposed to appoint. Almost 1/3rd vacancies exist in all the High Courts. This is adding to the pendency of cases. It is going up also because of the fact that the 1/3rd of the posts of the High Court judges are vacant. Why is it that the collegium system and the judges who run the system are not able to fill the vacancies?
If you see the complete list of the judges appointed in the High Courts or Supreme Court right from 1950, you will find that more than 50% of the candidates are the sons and grandsons of the sitting judges or retired judges or their fathers are some relatives are political persons. Their sons, daughters, grandsons, grand daughters, sister-in-laws are appointed as High Court judges. And the BAR unofficially knows who is going to be appointed as judges of High Court in the coming 5 years. This is strange and if this works in a democratic country like India, the future of judicial institutions in India is not much safer.
The collegium system to appointment good number of judges in high courts and Supreme Court, has a panel of 5 senior most judges of High Courts and Supreme Court. Even in the newly formed Judicial Commission, there is a panel just that the base has expanded now. If 5 judges can't reach consensus, then are we taking a huge risk in expanding the panel?
If this Commission also works like the collegium, there is no meaning in the formation of such a commission. Important thing is how will this system will work and what will be the criteria of the selecting the judges.
So, to summarize the discussion, in the appointment of the judges to the High Courts and Supreme Courts,
1) there should be transparency
2) the government (executive) should have a say [No where in the world judges appoints judges]
^This is a transcript of the Spotlight program broadcasted on AIR on 23/08/2013. This can be accessed here.
Listen:
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| The controversial two decade old collegium system to make way for Judicial Appointment Commission |
In a significant decision, the union cabinet has on 22/08/2013 approved the constitutional amendment bill for setting up a judicial appointment system that will replace the existing secretive system of appointment which is known as collegium system. The system is in place for the last two decades to appoint the Supreme Court and the High Court judges. This proposed commission is to replace the old system of collegium not just for appointments, it will also have powers of transfer. In fact the government has been for quite sometime contemplating to bring in this kind of change. But due to some resistance from the judiciary, somehow the government was dithering on the issue. But now there appears to be some political consensus and that is why the government wants to go ahead with the decision and the constitutional amendment could be placed in the parliament in the week starting 26/8/13. What is the significance of this decision?
It may bring more transparency in the appointment of judges. It was a secrete system of collegium till date and if we have this the judges appointment commission which will be headed by the Chief Justice of India along with two judges from the Supreme Court and two eminent persons, Prime Minister and law minister etc. Whatsoever may be the structure of this commission, it will bring more transparency in the appointment of judges and that will strengthen the basic roots of democracy. Because till date, we know how many seats of the layers and other judges is vacant in the high courts and Supreme Court. We don't know when the judges are going to be appointment, how they are going to be appointed, there is no advertisement for the appointment of judges and no applications are called, no recommendations are called from the BAR associations from High Court or Supreme Court or any other BAR associations. So it is a secrete system of collegium which is being decided by the 5 senior most judges of the High Court or 5 senior most judges of Supreme Court. The senior most judges of the High Court can recommend names of anyone who qualifies to be a High Court judge (having experience of 10 years and age around 45), to be High Court judge to the Supreme Court and then the 5 senior most judges of the Supreme Court will decide whether they should be appointed as the judges of High Court or not. Unless or until there is a contrary report from the Intelligence Bureau (IB), they are through.
How has this system came into existence? If we look at the Article 124 and Article 217 of the Constitution (under which the judges of High Court and Supreme Court are appointed), the provisions don't talk about this system of Collegium?
Only in the case of SP Gupta case 1993, wherein to avoid the interference of the executive or the government, this kind of collegium was incorporated by the Supreme Court and there were nobody to challenge it.
This system has been in place for the last two decades. India is the only country where the judges appoint judges. The executive has not been comfortable with this system. In fact, the government has been contemplating on changing this kind of system for quite sometime. Several law ministers have termed it as the extra-constitutional system since the Constitution didn't provide for it. How the new system will change it and what are the benefits that will accrue due to the new system?
There have been several controversies on several appointments and the BAR associations of different states and the Supreme Court also have been making hue and cry over such appointments. There were some contrary reports also from IB on some of the judges to be appointed in the High Courts. So this system is a secretive system and it must be made transparent. We hope and trust that this Judicial Commission on appointment of judges will bring some transparency in the appointment of the judges at the High Court and the Supreme Court levels. In fact there should be an All India Judicial Services Commission which should appointment judges right from the MM to the High Court. This proposal has been pending for several decades.
One of the problems of this Collegium system is that we would never know when somebody's name has been recommended or why it has been recommended. In some cases, it was said that better candidates were ignored be it fresh appointments to the High Courts or be it the elevation from the High Courts to the Supreme Court. We have seen controversies in many cases. For instance the name of Justice Dinakaran was recommended by the Supreme Court Collegium for appointment as a Supreme Court judge and then the media reports came out that he was involved in many land grab cases etc., and finally his name was dropped. The same system didn't recommend the name of the Justice AP Shah and it recommended the Soumitra Sen as the judge of the Calcullta High Court, he had to face the impeachment proceedings and finally he had to resign. What is the problem with this Collegium system apart from being secretive?
The problem is that only the 5 senior most judges of the Supreme Court will clear the name of the person to be appointed as the judge of the High Court or to be elevated as the judge of the Supreme Court. If two persons or even one person is not in favor of the appointment of a particular judge, he can't be appointed or elevated as judge. It must be unanimous almost. Though sometimes they clear it with majority. But if two persons are not in favor and three are in favor, then there will be controversy. How this 5 judges can decide the fate of the appointment of the High Court judges or Supreme Court in a democratic country in India? Without advertising it, without asking for any recommendations from BAR, without any criteria, what is the basis for appointment? This has been the major drawback in this collegium system. That is why we all say that the appointment of the judges in a democratic country must be transparent.
The current composition of the National Judicial Commission will comprise of the Chief Justice of India, two senior most Supreme Court judges, two eminent persons, justice secretary, law minister. Earlier there was a proposal that the leader of the opposition should be included in this panel. But now the fresh note circulated by the Government ditches it. Is it a good decision to drop the name of the opposition from this Commission?
Whatsoever may be the structure of this commission involving the Supreme Court Judges, High Court judges, Secretary of law, eminent persons from the society or the other, it hardly matters. The basic thing is that how this commission will work? What will be the basis of appointment of judges? Whether the post will be of advertised, whether applications will be invited, whether recommendation from the BAR associations will be called for before conceding for a particular person to be appointed as a High Court judge. What will be the basis for structure of this commission, what will be the mandate of this commission these are important.
Recently all BAR associations of various states met the Law Minister Kapil Sibal and they demanded that whatever new system is coming, the BAR leaders should be part of that and they should be consulted. At least some representatives of the elected BAR should be on this panel?
They may not be in the panel. The criteria of the selection of the judges must be transparent. We must know how many seats are vacant in a High Court and in which High Court they are vacant, when the vacancies will come, who can apply and how his application on merit will be decided. Because it can't go secretively that you invited 5 persons applications and you recommended 5 persons' names and they are appointed as High Court judges overnight keeping the BAR council in the dark.
One of the main criticisms of the Collegium system is that the there are always divergence views in the Collegium. That is why they failed to appoint the number of judges they are supposed to appoint. Almost 1/3rd vacancies exist in all the High Courts. This is adding to the pendency of cases. It is going up also because of the fact that the 1/3rd of the posts of the High Court judges are vacant. Why is it that the collegium system and the judges who run the system are not able to fill the vacancies?
If you see the complete list of the judges appointed in the High Courts or Supreme Court right from 1950, you will find that more than 50% of the candidates are the sons and grandsons of the sitting judges or retired judges or their fathers are some relatives are political persons. Their sons, daughters, grandsons, grand daughters, sister-in-laws are appointed as High Court judges. And the BAR unofficially knows who is going to be appointed as judges of High Court in the coming 5 years. This is strange and if this works in a democratic country like India, the future of judicial institutions in India is not much safer.
The collegium system to appointment good number of judges in high courts and Supreme Court, has a panel of 5 senior most judges of High Courts and Supreme Court. Even in the newly formed Judicial Commission, there is a panel just that the base has expanded now. If 5 judges can't reach consensus, then are we taking a huge risk in expanding the panel?
If this Commission also works like the collegium, there is no meaning in the formation of such a commission. Important thing is how will this system will work and what will be the criteria of the selecting the judges.
So, to summarize the discussion, in the appointment of the judges to the High Courts and Supreme Courts,
1) there should be transparency
2) the government (executive) should have a say [No where in the world judges appoints judges]
^This is a transcript of the Spotlight program broadcasted on AIR on 23/08/2013. This can be accessed here.
Listen:
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