The present system of judicial appointments in the constitutional courts exemplifies the misalignment between the core values of judicial independence and accountability. The process by which a judge is appointed to the High Court or the Supreme Court has been described by Justice Ruma Pal, a former judge of the Supreme Court, as “one of the best kept secrets in this country.”
The text of the Constitution that provides for the appointment of the judges of the Supreme Court (Article 124) and the High Court (Article 217) is deceptively simple. They provide for the President to appoint them in “consultation” with other judges. Originally, the power to appoint judges vested ultimately in the executive. It is now with the Chief Justice and the senior judges of the court, i.e. the Collegium. It is unnecessary to trace the evolving jurisprudence of the Supreme Court regarding the issue of judicial appointments beyond this. Suffice it to say, that in the last of the famous trinity of the Judges Cases, the Supreme Court changed the character of “consultation” to “concurrence”. As Anil Divan pithily points out, the Judges Cases have not really broken the mystique behind the “Sacred Ritual” of appointments — they have only changed the circle of “High Priests.” Now, instead of the executive, primacy is given to the CJI and the Collegium of Judges. The way in which judges are appointed embodies a set of values about democracy. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit.
The recent case of the impeachment motion of Soumitra Sen, former judge of the Calcutta High Court, once again highlighted the need to have a relook at the process of appointment. The unanimous voice of Parliament, while considering the impeachment motion of Sen, was that there was now a greater need for a National Judicial Commission than ever before. The legislators were, in fact, only echoing the view that has time and again been stressed upon by various legal luminaries and jurists.
The rationale
The rationale for the establishment of a commission must be that it will guarantee the independence of the system from inappropriate politicisation, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary and therefore rebuild public confidence in the system. By placing the power of judicial appointments in an independent body, the object is to remove patronage from the system and ensure that the judges are appointed on the basis of their qualifications for the job rather than anything else.
It is here that we can learn from systems elsewhere which have managed to provide for a transparent process of appointment, while maintaining judicial independence. International consensus seems to favour appointments to the higher judiciary through an independent commission.
Form of the commission
A key question is whether the new body should be appointing (The Israel Judicial Commission is the only appointing Commission) or recommending commission. The former in which the commission takes over the full responsibility for making appointments, removes the danger of inappropriate influence by politicians but also weakens democratic accountability and lacks a potential check on abuse, corruption or incompetence on the part of the commission. These advantages and disadvantages are reversed under a recommending commission. Therefore, there is need to adopt a hybrid model where the Commission makes a recommendation, which should be ordinarily binding. The recommendation may be rejected only in cases where the candidate is disqualified or in cases where the procedure adopted by the Commission is legally flawed. The reasons for such rejection must also be recorded in each case.
Composition
The example of the U.K. may be taken where the Constitutional Reforms Act, 2005 has established a Judicial Appointments Commission (JAC) with one Chairperson and 14 other Commissioners, including five judicial members, one barrister, one solicitor, five lay members, one tribunal chairman and one lay judge. The Chairperson and 12 Commissioners are appointed through open competition, while the other three are selected by the Judge's Council.
In South Africa, the establishment of the Judicial Service Commission (JSC) has attracted much attention for the way it has made the appointments process more independent. Its 23 members are drawn from the judiciary, the two branches of the legal profession, the national and regional legislatures, the executive, civil society and academia. The entire process of appointment is geared towards securing maximum transparency.
The nine-member Commission that selects judges for all levels of courts in Israel consists of the President of the Supreme Court, two other Supreme Court judges, the Minister of Justice (Attorney General), another Cabinet Minister, two members of the Legislature (one of whom has traditionally been selected from the opposite ranks) and two representatives of the Israeli Bar.
In India, it would be more prudent to follow the U.K. model where politicians are kept out of the Judicial Appointment Commission. The Judicial Commission should not be a very large body, containing not more than 7 or 9 members. The Commission should consist of representation from the Judiciary, the Bar, eminent members of civil society (who should be appointed by a high powered body, for example presided over by the Vice President, the Prime Minister, the Chief Justice of India, the Law Minister and the Leader of the Opposition).
An equally important feature of public accountability is institutional and procedural openness. The requirement of openness is particularly important in the judicial appointment process, because a recurring criticism of the old system was the high level of secrecy within which the selection process functioned. The extent to which the Commission operates transparent procedures is therefore a critical test of its legitimacy.
Transparency & openness
To give an example, the Commission in South Africa has made efforts to ensure that the process by which candidates are selected for interview is as open as possible. The statutory provisions provide that when a vacancy arises, the Commission must advertise the post and seek nomination from a wide variety of sources. The names of candidates short-listed for interview by a screening sub-committee are made public and the views of relevant institutions (among them, the Law Society of South Africa, the General Council of the Bar and the Department of Justice) on their suitability are canvassed by the Commission.
On the other hand, the system of public interviews was opposed by pointing towards the example of the United States Senate Judiciary Committee confirmation hearing as demonstrating the danger which public interviews posed since the same could degenerate into personalised attacks on the candidates, and such demonstrations, far from increasing legitimacy, would undermine public confidence. The system was further opposed by stating that leading members of the Bar would be discouraged from coming forward if the meetings were made public.
However, public interviews may not be a plausible model for a country like India and therefore should not be introduced here. We should follow the U.K. model and should publish the Annual Judicial report and the names of the selected candidates should be posted on the website.
Merit and diversity
There is no gainsaying that there is a need to preserve and of course, if possible, to improve the professional and personal quality of our judiciary and therefore, merit should be given great primacy. Yet, it is equally important to consider the importance of social diversification in public institutions and the need to include hitherto under-represented groups for a more holistic advancement of all sections of society. A wider range of social backgrounds should mean not just representation from the backward classes and the minorities but also women. This underlying policy aim is perfectly respectable, namely that the public may well have more confidence in its judges if they are more reflective of the make-up of the community at large.
Fresh approaches
Tackling this lack of diversity in the judiciary will require fresh approaches and a major re-engineering of the process of appointment. Diversity is likely to be achieved only if equal opportunities are placed at the heart of the judicial appointments process and are promoted through sustained and proactive initiatives. One such example comes from Ontario, where one of the first actions of the newly established Judicial Appointments Advisory Committee in 1990 was to ask the Attorney-General to write a personal letter to 1,200 senior women lawyers in the province asking them to apply for judicial office. This conscious and innovative attempt to expand the number of workmen in the recruitment pool produced such a marked increase in the number of applications from well qualified women that between 1990 and 1992, 41 per cent of the judges appointed by the Judicial Appointments Advisory Committee were women.
The outcome of the reforms would depend on the way in which the commission is set up and the model adopted. The detail of the commission must be thought through with great care. Issues such as the division of responsibility between the commission and the appointing Minister, composition of the membership and the process for selecting the commissioners themselves are key factors in determining the success of the new system.
(Ajit Prakash Shah is the former Chief Justice of the High Courts of Delhi and Madras. )
