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Choosing judges

By H. Suresh

The present Bill (on National Judicial Commission) does not say a word about transparency.

IN THE last session of the Lok Sabha, the Government introduced the Constitution (Ninety Eighth Amendment) Bill, 2003, for establishing a National Judicial Commission (NJC) to appoint Supreme Court and High Court judges, to handle transfers of the latter, and to inquire into any charges of misconduct by judges.

The proposed NJC will comprise the Chief Justice of India, two senior Supreme Court judges, the Union Law Minister, and a nominee of the President of India in consultation with the Prime Minister. The National Commission to Review the Working of the Constitution in its consultation paper had said: "(The NJC's) composition should not be such as to affect directly or indirectly the independence of the Judiciary and the power of judicial review both of which have been held to be the basic feature of the Constitution." It recommended that the NJC comprise the CJI, two Supreme Court judges, the Law Minister and the President's nominee to be appointed, in consultation with the CJI. Now the proposal is that President's nominee be appointed in consultation with the Prime Minister.

Under the Constitution (Article 124), what was contemplated was "consultation" with the CJI, before appointment of judges to the High Court and the Supreme Court. In the process of appointment, the primacy of the CJI was always acknowledged. Rarely was his opinion ignored. The purpose of "consultation" was to safeguard the independence of Judiciary. In 1993, a nine-judge Bench of the Supreme Court ruled that if there was a conflict among the constitutional functionaries, the opinion of the CJI should be given primacy and that no appointment could be made unless it was in conformity with his\her opinion. Thus "consultation" became "concurrence". However, since the CJI, in actual practice, always consulted his colleagues, the Bench accorded legal sanction to this practice and laid down that the CJI must consult the two senior-most judges of the Supreme Court. Thus, the opinion is not that of the CJI as the head of the Judiciary, but that of the senior judges "symbolised by the view of the Chief Justice of India".

The Bench described this as "the integrated participatory consultative process" for selection of judges. This was referred to as a "collegium", which, in a later judgment in 1998, was extended to include four senior-most judges of the Supreme Court. Whatever the merits and demerits of the judgment, it ensured independence from the Executive in the matter of selection, appointment and transfer of judges (though for information gathering about the antecedents of individuals, the Supreme Court is still dependent on the Law Ministry and the Home Ministry).

The present Bill seeks to eliminate this independence along with the primacy of the CJI. The basic question is: why do we want an NJC? If the objective is only to replace one authority with another (which is more harmful then the existing one), it serves no purpose.

Till the First Judges case (1993), the Executive had the last word in the matter of appointment of judges. Now the collegium of Supreme Court Judges has the final word. Still, we do not know how our judges are selected. They are selected in secrecy. The Executive could have had its own reasons for selecting one against the others. That is now replaced by the judges. Yet, it is wrong to presume that the CJI and the senior judges of the Supreme Court will know all the candidates and their background.

In the U.S., the President nominates. But the nominee has to face a public enquiry by the Senate. In this, the American Bar Association assists the Senate in assessing the worth of the nominee. It is not merely a question of professional competence. More importantly, the enquiry centres round what the nominees believe the constitutional values should be. It is not suggested that this is the ideal system. What is important is transparency.

The English practice of selecting judges in secrecy by the Lord Chancellor does not seem to be acceptable even in England. In 1972, the Justice Sub-Committee recommended that the Lord Chancellor should be helped in his task by an Appointments Committee, comprising representatives of the Law Society, the Bar, academic lawyers, the Judiciary and some members such as highly trained and experienced personnel officers skilled in selection procedures. Though this was not accepted by the Government, now the Bar Council of England has demanded the need for an independent Judicial Appointments Commission.

The present Bill does not say a word about transparency; it does not provide for any independent selection process. It is not even independent — it has only the judges and the Executive.

(The writer is a former Judge of the Bombay High Court.)

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