The procedure of selection of High Court judges by inviting applications through notifications which is followed in the United Kingdom may well be adopted in India so that transparency in the appointment is achieved, eliminating the charge of discrimination

The election manifesto of the Bharatiya Janata Party (BJP) has promised to “accord high priority to judicial reforms to address the issue of appointment of judges …” It also proposes “to set up a National Judicial Commission for the appointment of judges to the higher judiciary.” The Indian National Congress has promised that a Judicial Appointments Bill it introduced in Parliament will be enacted “after consultation and consensus building over the mechanism proposed in the Bill.”

The Constitution (One Hundred And Twentieth Amendment) Bill 2013 was passed by the Rajya Sabha on September 5, 2013. It seeks to replace the collegium model of judicial appointments with a Judicial Appointments Commission (JAC). For a Constitution amendment to become law when it seeks to make any change in the “Union Judiciary,” it has to undergo these three steps: the Bill has to be passed in each House by a majority of total membership of that House and also by a majority of not less than two-thirds of the members of that House present and voting; the amendment also requires to be ratified by the Legislature of not less than one half of the States by a resolution to that effect; and assent by the President.

The Bill gives JAC the powers to appoint judges to the Supreme Court and the High Court. The said Bill introduced a new Article 124-A to constitute a JAC to make recommendations with respect to the appointment of judges of the higher judiciary. The Constitution Amendment Bill does not define who the members of the JAC are but leaves this for Parliament to determine in an ordinary Statute. This accompanying Bill, known as the JAC Bill 2013, provides that JAC will comprise six members, i.e. the Chief Justice of India, two most senior judges of the Supreme Court, the Law Minister and “two eminent persons.” The two eminent persons are supposed to be appointed by a collegium comprising the Prime Minister, the leader of the Opposition in the Lok Sabha and the Chief Justice of India. However, before the Constitution Amendment Bill was passed by the Rajya Sabha, the BJP staged a walkout since the demand for the Bill being referred to the Standing Committee was not conceded. The Standing Committee Report was only on the JAC Bill and not the Constitution Amendment Bill. The report recommended that the structure, functions or the composition of the JAC should be reflected in the Constitution itself and not in ordinary legislation so that the composition of JAC cannot be altered without a constitutional amendment. As the Bill stands today, the composition of JAC is in the hands of Parliament. To change the composition of JAC, a Parliamentary Statute is enough which is more flexible than an amendment of the Constitution.

Mr. Ram Jethmalani, a member of the Standing Committee, also argued that the composition of JAC by an ordinary legislation would give scope for substitution with a Judicial Commission which will consist of only the Law Minister. However, to implement this recommendation of the Standing Committee on the JAC Bill, it may require an amendment to the Constitution (One Hundred and Twentieth Amendment) Bill 2013.

For a representational judiciary

Thus, even though at the instance of the UPA government led by the Congress Party, the Constitution (One Hundred and Twentieth Amendment) Bill 2013 was passed by the Rajya Sabha, in order to become law, the said amendment has to be passed by the 16th Lok Sabha by a majority of the total membership of the House and also by a majority of not less than two-thirds of the members of the Lok Sabha present in voting. It also requires ratification by the legislature of not less than one half of the States in India.

It is therefore a million dollar question as to whether the Constitution (One Hundred and Twentieth Amendment) Bill 2013 would become law after the 16th Lok Sabha is constituted subsequent to the general election as the subject of appointing judges through a Judicial Commission requires more consultation and consensus-building over the mechanism proposed in the Bill.

The U.K. example

It is in this context and also in view of the recent decision of the collegium of the Supreme Court withdrawing the 12 names recommended for Judgeship at the Madras High Court based on “unprecedented opposition” that the 16th Lok Sabha as well as the new Union Government accord the highest priority to the proposal for the setting up of a National Judicial Commission and decide whether the composition of JAC be reflected in the Constitution itself. Suitable measures to make the judiciary representative of the diversity of our society with respect to gender, region, religion and caste may have to be initiated. Public interest demands a quick decision in this regard. They may also consider putting into practice, the procedure whereby members of the Bar who are eligible for being appointed as a Judge of the High Court apply for Judgeship through a “Public Notification.” Such a practice is in vogue in the United Kingdom.

In the U.K., the candidates for Judicial Office in courts up to and including High Court level, Tribunals in England and Wales are selected by JAC. The JAC is an executive non-departmental public body sponsored by the Ministry of Justice. Membership is drawn from the judiciary, the legal profession, non-legally qualified judicial office-holders and the public. (JAC does not select judges to the U.K. Supreme Court. The U.K. Supreme Court was established on October 1, 2009 and assumed the formal judicial functions of the House of Lords which were removed by the Constitutional Reform Act 2005. Judges of the Supreme Court of U.K. are appointed by the Queen by the issue of Letters Patent on the advice of the Prime Minister to whom a name is recommended by a Special Selection Commission. The Prime Minister is required by the Constitutional Reform Act, 2005 to recommend this name to the Queen and not permitted to nominate anyone else.) The Selection by JAC for High Courts, Tribunals is based on merit through fair and open competition from among the widest range of eligible candidates possible. The appointment process is not only clearer but more accountable. The selection process starts when JAC receives a vacancy request from Her Majesty’s Courts and Tribunals Service or the Ministry of Justice. Thereafter, it advertises all selection exercises on its website and in the email newsletter. JAC also tailors the application form for each selection exercise and prepares an information pack and the applications are submitted to JAC electronically. Thereafter, the process of shortlisting commences. Candidates are required to identify referees they know personally and professionally. Shortlisted candidates are invited for a selection day for a panel interview, role play interview and presentation, etc. (Role play usually simulates a court or tribunal environment. Candidates are asked to take on the role of judge and respond to a simulated situation.) The technique of situational questioning is also adopted which involves questions concerning a hypothetical situation based on challenging, real-life, job-related occurrences and asks the candidate how they would handle the problem. JAC also carries out consultation as part of each selection exercise as required by the Constitutional Reform Act 2005. For High Court selection, the Lord Chief Justice and one other person are consulted. Financial, criminal and professional background checks are carried out. After this exercise, the Commissioners make the final decision on which candidates to recommend to the appropriate authority (Lord Chancellor, Lord Chief Justice or Senior President of Tribunals) for appointment. Thus, the process of appointment of judicial officers in the U.K. is clear, open, fair and accountable.

However, in the present system of appointments to High Court Judges in India, unless the Chief Justice of the High Court concerned or any other senior judge of the High Court recommends the name of a particular practising lawyer, there is no way to get included in the list of prospective candidates.

This system is perceived to be discriminatory because it is inherently impossible for the collegium judges to personally know everything about all the eligible practising members of the Bar. Thus, the procedure of selection by inviting applications through notifications which is followed in the U.K. may well be adopted in India also so that transparency in the appointment of High Court Judges is achieved, eliminating the charge of discrimination.

(K. Subramanian is a senior advocate and former Advocate-General of Tamil Nadu.)

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