As of June 2013, there were 276 vacancies out of a total sanctioned strength of 904 permanent and additional judges in all the High Courts of India. With almost a third of the vacancies to be filled, most States are witnessing major canvassing on caste, community, political and other considerations for appointment as judges. As allegations and counter-allegations over the appointment of favourites fly thick and fast, the debate over the process of judicial appointments is once again heating up.
The Emergency and the post-Emergency era witnessed attempts by the executive to muzzle the judiciary. It was to check this erosion of independence of the judiciary that the ‘Collegium’ system was evolved, by which the senior-most judges of the High Court and the Supreme Court selected judges with the executive merely being consulted. But 20 years after the Collegium experiment, the appointment of judges “by the judges” is being perceived as appointments “for the judges.” There is growing evidence that the current system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.
In May 2013, over 1,000 lawyers of the Punjab and Haryana High Court protesting the recommendation of seven names by the High Court Collegium for appointment as judges wrote: “The independence and integrity of the judiciary has been put at stake by the Collegium while recommending the names of advocates for elevation as judges ... the decisions of the Collegium seem to have been based on considerations other than merit and integrity of the candidate”. They added, “it has now become a matter of practice and convenience to recommend advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices. Nepotism and favouritism is writ large. We all need to rise to the occasion and oppose such recommendation.”
In June 2013, the Madras High Court Advocates Association (MHAA) gave a representation to the Chief Justice of the High Court regarding a list of 15 names forwarded by the Collegium, pointing out, “the proposed list of persons recommended for elevation to the high constitutional office falls far short of the standards set out in the various judgments of the Supreme Court. It appears that the names have been proposed on extraneous criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo. We at the Bar are deeply distressed, concerned and even alarmed at the partisan manner in which the selection is made. It exhibits a total indifference to the future of the Judiciary as an institution where institutional interests have been sacrificed at the altar of personal pursuits.”
‘Erosion of respect’
The MHAA representation highlighted the consequences of the appointment of poor quality judges: “Long delay in delivering judgements (there have been a disturbingly large number of instances where many judges have delayed judgements for several years and even retired without delivering judgements), inability to organize time effectively and manage their board efficiently, lack of clarity and clear reasoning in judgements, lack of knowledge of even basic principles of law and lack of ability and willingness to learn, ghost writing of judgements … This has resulted in eroding respect and confidence in the judicial process. This is compounded by the increasingly common experience and perception that judgements are delivered on the basis of … partisan considerations such as caste, regional and personal affinities with particular members of the Bar/litigants. It pains us to state all this. But at the same time we would be failing in our duty to the institution of judiciary if we do not raise these issues of grave concern now.” The MHAA demanded transparency in appointments and said the names of the advocates shortlisted for consideration should be disclosed in advance.
For many years, Bar Associations throughout India have been continuously demanding transparency and openness in the appointment process. Today the greatest concern is the secrecy shrouding the appointments.
The real issue is not who appoints judges but how they are appointed. Irrespective of whether it is the executive, the judiciary or a Judicial Commission that appoints judges, as long as the process is opaque and appointments are made on personal considerations, we will have variations of the same problem of favouritism, nepotism and appointments on criteria other than merit and capability. The crucial need , therefore, is to evolve objective criteria to assess a candidate and make appointments on the basis of assessments against such stated criteria. We may usefully refer to the system adopted by the Judicial Appointments Commission in the United Kingdom to assess candidates.
Merit, sole basis
The U.K. Constitutional Reform Act, 2005 made merit the sole basis of selection to the judiciary; a person must not be selected unless the selecting body is satisfied that he or she is of good character. While the Judicial Appointments Commission must have regard for the need to encourage diversity in the range of persons available for selection for appointments, it is subject to merit criteria.
The JAC assesses candidates against five merit criteria:
1. Intellectual capacity: Nominated candidates ought to demonstrate (a) a high level of expertise in chosen areas or profession with the (b) ability to quickly absorb and analyse information. They should have (c) appropriate knowledge of the law and its underlying principles or the ability to acquire this knowledge where necessary.
2. Personal qualities: ranging from (a) integrity and independence of mind, (b) sound judgment, (c) decisiveness, (d) objectivity, (e) ability and willingness to learn and develop professionally and (f) ability to work constructively with others.
3. An ability to understand and deal fairly: This includes (a) the ability to treat everyone with respect and sensitivity whatever their background and (b) willingness to listen with patience and courtesy.
4. Authority and communication skills: The nominated person is expected to have (a) the ability to explain the procedure and any decisions reached clearly and succinctly to all those involved with the further (b) ability to inspire respect and confidence and (c) maintain authority when challenged.
5. Efficiency: The ability to work at speed and under pressure and the ability to organise time effectively and produce clear reasoned judgments expeditiously.
The U.K. system made assessment in respect of all criteria evidence-based. Selection will be rejected if there is not enough evidence that the person is suitable for the office concerned, or there is evidence that the person is not the best candidate on merit.
The ‘public’ senate hearings for appointments of judges to superior courts in the U.S. are another example of transparency. We may not find the U.S. system implementable as it is; but nothing prevents us from incorporating the key principles of transparency, accountability and citizen participation underlying the U.S. system for selection of judges.
Transparency will inspire confidence in people. Appointment of judges being in the public domain should be open and visible. Considering the views of the Bar is a healthy process of consultation as it is privy to a lot more information than the general public.
Criticism of biased, partisan and compromised judicial appointments is not new. Yet for the last 20 years, successive Supreme Court Collegiums steadfastly refused to “clean the stables” and evolve a transparent, open and accountable procedure to ensure that the best persons were appointed as judges to the High Courts and the Supreme Court. Judges to these constitutional courts bear the great responsibility of ensuring respect for the “rule of law” and ensuring that governance is based on constitutional principles and vision.
The country deserves nothing short of the most competent, learned persons as judges whose ethical conduct is beyond doubt. Irrespective of whether appointments are Collegium based or through a new Judicial Commission, members of the Bar as also citizens need to participate in the selection process. Our nation’s future cannot be totally compromised because the powerful want to ensure their power in perpetuity.
The winds of change sweeping the world demanding greater participation, inclusion, equity, accountability and transparency will eventually engulf the judiciary too. We hope the wise persons in the judicial system will read the signs.
(The writers are advocates, Madras High Court. Email: firstname.lastname@example.org)