Opinion » Lead

Updated: July 5, 2013 00:17 IST

The costly tyranny of secrecy

    N. G. R. Prasad
    D. Nagasaila
    V. Suresh
Comment (14)   ·   print   ·   T  T  

As long as the process of judicial appointments remains opaque, selection of judges on considerations other than merit will continue

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.

Collegium experiment

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:

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These days there is too much hue and cry that judiciary is overstepping, we call it excessive judicial activism. Doesn't these biased decision due to incompetent judge chosen on basis of favouritism, castism are responsible. They are not well versed and exceed their domain and sometime make a fair trial opaque.

from:  Abhiahek
Posted on: Jul 7, 2013 at 22:41 IST

Judiciary is a backbone of our democracy , it has been made some of the greatest and impartial decisions in india history , in recent times commenting upon CBI's automany had been a hot topic in indian media. I think we must have a different commission which would recommend judges to executive and this board should include former judges of high court and supreme court. Not only appointment but assessment of appointed judges should be under the
p purview of this board and imcompetent judges would no longer be a part of our judiciary system.

from:  Rupesh Thakur
Posted on: Jul 6, 2013 at 11:44 IST

We need the Indian Judiciary Services in the country asap.

from:  Saumya
Posted on: Jul 6, 2013 at 11:10 IST

I remember to have watched an Indian TV programme when one of the law ministers of UPA II was interviewed along with Aam Aadmi Party (AAP) crusader. The law minister expressed that he is working in the interest of his party and its members. When the AAP member told him that he is the law minister for the country and not for the party, the law minister disconnected his ear phone and ended the conversation. The law minister gave a very negative impression to the public. Such politicians should be voted out for the improvement of the Indian judiciary system.

from:  DORAI
Posted on: Jul 6, 2013 at 07:25 IST

Many a time people who are at-least superficially exposed to the
judicial happenings end up without commenting on the commission or
omission of any act by the judiciary,for fear of contempt of court.And
hence it is the people who are very part of the system themselves
being vested with the convenience of criticizing the judicial system.
In such a context, the objective assessment of the collegium system
and the demand for an improved system from within the judiciary is
welcome one and is also reflective of the demands of many general
public too who wish to see a change in this system. Accountability and
transparency are essential organs for good governance and lacking it
in judiciary would make any polity as obsolete.

Posted on: Jul 5, 2013 at 21:43 IST

The public which has almost lost confidence in the legislature and the executive is in need of transparent judiciary to rely upon.but a transparent yet an independent judiciary is the need of the hour not the 'executive has a say in appointment' judiciary.

from:  Arunima
Posted on: Jul 5, 2013 at 21:23 IST

Intelligent & throughly law aware judges should be appointed without having the nature of primogenacy.

from:  Peeyush Pandey
Posted on: Jul 5, 2013 at 17:07 IST

The most important issue is corruption in judiciary. There is no accountability of judges as the other government servants have.Judicial accountability bill need to be passed as soon as possible.

from:  Hasan
Posted on: Jul 5, 2013 at 15:58 IST

No doubt It is an excellent assessment and I do agree with Mr. Ceeoren that who cares. Not only Judicial Appointments Commission is required but a strong interference of good Executive machinery also needed. It may amount to infringement of “Separation of Power” between tree pillars of government but a strong “Separation of Power” like USA really even doesn’t exist in India.

from:  Pinkeshwar
Posted on: Jul 5, 2013 at 13:21 IST

We can't have any public body without corruption, can't we ?

from:  vikas
Posted on: Jul 5, 2013 at 11:51 IST

its time to reform Indian judicioury system at the priority basis.

from:  Abdul Wahid
Posted on: Jul 5, 2013 at 11:32 IST

For almost every article i open on this website today, the webpage shifts to the right to show an ad. It is very irritating and highly annoying. Please let us give delivering news more priority than minting money in every conceivable way.

from:  ankush
Posted on: Jul 5, 2013 at 10:38 IST

The appointment of Judges has become a burning topic these days. It is
rightly pointed out that the issue is not who select the judges but it
is how they are selected. The selection process needs to be transparent.
It would be the first step to stop corruption in judiciary.

from:  Akshay Dhadda
Posted on: Jul 5, 2013 at 10:17 IST

An excellent assessment, but who cares! The indifference of the educated is destructive of values, the apathy of the populace removes public participation in governance! The first step to autocratic rule is the muzzling of the Judiciary and dissenting public opinion. Cabals rule and do not govern, Juntas impose, Oligarchs crush - that is the experience through the ages. A central minister talks of restraining Judges from expressing themselves freely if such comments are critical pf the government. Will he also impose the same restriction if the comments were in praise of the government? A Member of the Central Cabinet speaks uses, what can at best be described euphemistically as intemperate for foul. No one seems to be offended even when he does not mince any words about the party and the government, but when a judge justifiably is critical of the government,that raises the ire of the minister. Can the members of the Cabinet disassociate themselves from the remarks of a colleague?

from:  Ceeoren
Posted on: Jul 5, 2013 at 02:15 IST
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