The Supreme Court has spoken on the National Judicial Appointments Commission (NJAC). Right or wrong, it is final, till a larger bench overrules the verdict, which seems unlikely in the near future.
Expansive arguments and expositions of the Constitution and the laws were advanced during the hearing and have been considered by the Court. A rehash of the same in the media may be useful only to pat oneself on the back or to express one’s anguish. I doubt whether the debate will have any meaningful impact on public opinion or lead to a change in the view of the Court.
The Constitution does not envisage a collegium of judges to select judges. How did it come about? The lawyer community and the public were distinctly uncomfortable with the intrusions into the independence of the judiciary in the 1970s and 1980s, reposed enormous confidence in the judges, virtually suggested the collegium system, and gave a euphoric welcome to the system when the Supreme Court devised it.
However, they were soon shocked to find that judges also can be men of straw. The lawyers and the public realised that like any normal human being, several of the members of the collegium did not rise above their religion, caste, gender, language, family, friends and other affinities.
Need for change This disenchantment with the working of the collegium system emboldened the political class to assert itself and pass a constitutional amendment to undo what it perceived to be a wrongful assumption of the power of appointment of judges by the judges.
The judiciary has acknowledged the deficiencies of the collegium system but fondly hopes to reform the same. The alternative, the NJAC, has been rejected in a clear expression of lack of confidence and faith in the political class to preserve and protect the independence of the judiciary.
There could be different perceptions on whether such wholesale lack of faith between the major organs of the state is warranted or is healthy in a vibrant democracy. Honest differences exist, but such differences should not lead to recrimination or name-calling. Besides, the common man, the consumer of justice, is more interested in efficacious resolution of disputes expeditiously. The learned arguments of the lawyers and public intellectuals should address this cause.
Swift and decisive action in this regard by the judiciary, legislature and the executive in discharge of their constitutional obligations is eagerly awaited by “We, the people of India.”
There are immediate areas which need attention. First, vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength. Second, persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. This follows logically, as a consequence of the acceptance by the Constitution Bench of the defective functioning of the collegium. But a method has to be found without the process of impeachment, and voluntary retirement could be an option. Third, the infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled. Fourth, there needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.
Institutional changes The Supreme Court at the hearing on November 3 should lay down institutional mechanisms for transparent functioning of the collegium. The following measures will be crucial: one, accepting applications for appointments as High Court judges. This is followed in the U.K. and can be adopted in India too. There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges. Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
All the three organs of the state should introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.
Parliament should also enact changes to provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some of the judges seeking to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. This will also obviate the argument of expectation based on seniority for appointment as judges of the Supreme Court. The retirement age should be raised uniformly to 70 with a condition that no judge retiring at 70 shall be appointed as a member of any Tribunal. The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by the Permanent Commissions. A minimum tenure of two years should be provided to the Chief Justice of India and the Chief Justice of High Courts. Consequently no judge who is more than 68 years should be made a Chief Justice. Court management should not be vested with Judicial Officers but assigned to trained managers.
To allay the fears of intrusion into the independence of judiciary, a three member Permanent Commission to scrutinise the credentials of candidates and recommend names may be constituted. The Commission may consist of three retired Chief Justices of India for appointment of judges to the Supreme Court. Four such similar Commissions may be constituted for the four regions of India with a retired judge of the Supreme Court as a Chair Person and two retired Chief Justices of the High Courts as members. The tenure of the Chair person and members of the Commission should be three years. The recommendations of the collegiums in the High Court may be forwarded to the Regional Permanent Commission which shall then send its recommendations to the collegium in the Supreme Court. The selection of these permanent commissions should be made by a committee consisting of the Chief Justice of India, two senior most judges of the Supreme Court, the Prime Minister and the Leader of the Opposition in the Lok Sabha. The collegium in the High Court may recommend a panel which is twice or thrice the number of existing and expected vacancies and, on scrutiny, the Commissions can recommend a pruned list of names to the Supreme Court Collegium.
These Permanent Commissions should also be vested with the power to scrutinise complaints of dishonesty and lack of integrity of judges, to make recommendations to the collegiums to withdraw work from those judges pending impeachment.
Individuals come and go but institutions have to survive and gain the confidence of the people. The average citizen has greater trust and confidence in the judiciary than the legislature or the executive. The Constitution Bench says the court will reform itself and wants no intrusion from Parliament and the executive. All well meaning people will be happy if this happens and soon. But institutional and systemic changes will advance and hasten the reforms.
(C.S. Vaidyanathan is Senior Advocate and former Additional Solicitor General.)
