Judges are appointed to the highest post in the judiciary by the collegium of judges. However, there is a general feeling of discontent against the selection process and credibility of judges. As corruption in judiciary has grown up, so it is high time to introspect and find out the solution of some alarming problems in the judiciary…
Judiciary is an institution and its reputation and dignity needs to be saved. India has so far witnessed two systems for the appointment of judges to high courts and the Supreme Court. Earlier, the executive was empowered to appoint the judges of high courts and the Supreme Court. Later on, the collegium system developed, which is nothing but judiciary. However, both the systems have failed to select honest, intelligent and excellent judges, barring a few judges whose credibility, intelligence and integrity are beyond doubt and unquestionable.
Therefore, there is a serious need to change the prevailing system of appointment of judges to high courts and the Supreme Court. A lot of debate is going on across the country for establishing a National Judicial Commission, but again there is a complete lack of political will, as it would require an amendment in the Constitution of India (the Constitution).
From the very inception of establishment of the Supreme Court till 1993, the judges were appointed by the Executive. The SP Gupta case came up for hearing before seven judges Constitution bench of the Supreme Court in 1982. It is popularly known as the First Judges case. In this case, the question of independence of judiciary, nature of power to appoint and transfer high court judges and procedure to be followed, consultation with the Constitutional functionaries, consent of the concerned judges and validity of transfer of judges from one high court to another were contemplated. The majority view of the Apex Court was also that the executive should have primacy, since it is accountable to the people and not to the judiciary.
In the Supreme Court Advocates on Record Association case which is popularly known as the Second Judges case in 1993, nine judges’ Constitution bench considered the question of primacy given to the opinion of the Chief Justice of India (CJI) in the process of appointments of judges to the high courts as well as the Supreme Court, regarding transfer of judges of the high courts and Chief Justices of high courts and also examined the ruling of the First Judges case. Majority of the bench opined that the CJI has primacy over other Constitutional functionaries. In the event of conflicting opinions by the Constitutional functionaries, the opinion of judiciary ‘Symbolised by the view of the CJI’ has primacy. Further, the senior most judge of the Supreme Court who is considered fit to hold the office should be elevated to the office of the CJI.
The President of India in exercise of powers under Article 143 of the Constitution made a Reference to the Supreme Court in 1998. The Supreme Court answered the Reference in Special Reference No.1 of 1998 which is popularly known as the Third Judges case. The expression “consultation with the CJI” in Articles 217 (1) and 222(1) of the Constitution requires consultation with a plurality of judges in the formation of opinion of the CJI. The sole individual opinion of the CJI does not constitute “consultation” within the meaning of the said Articles.
The CJI must make recommendation to appoint a judge of the Supreme Court in consultation with the four senior most puisne judges of the Supreme Court. In case of appointment of judges to high courts, the recommendation must be made in consultation with two senior most puisne judges of the Supreme Court. It was made clear that the recommendations made by the CJI without complying with the norms and requirements of the afore-stated Consultation process are not binding upon the Government of India.
Hon’ble Justice Toshiaki Iimura Judge, Intellectual Property High Court, Japan
Although IP High Court handles only Intellectual Property (IP)- related cases, judges there are not comprised only from the specialised branch of law (specialist) who had handled only IP cases. In general, judges in Japan are appointed at a young age and they will spend their long career as a judge. They are assigned to handle various cases from civil to criminal and family matters. Civil cases can be further divided into general civil cases such as loan disputes and tort cases, and specialised cases (administrative case, labour case, pollution case, tax case, medical malpractice, construction case, traffic case, and commercial case). By experiencing such a variety of cases extensively, it enables a judge to gain legal judgment skills and dispute settlement skills in a fair and speedy manner. Establishing a specialised court bears a risk that if we allow a specialised judge to sit at a specialised court to handle only certain type of cases, the judge might fall in tunnel vision unconsciously, and the judge might have very limited opportunities to make a judgment from a comprehensive perspective based on well-balanced deliberation. In order to avoid such a risk, the personnel system is operated in a way that not only specialised judges (specialist) with long experience in IPrelated cases, but judges with extensive experience in general cases are assigned to IP High Court. It enables to maintain active communication, exchange views, promote friendly competition, increase issue-finding skills, and do collaborative research between specialised judges and non-specialised judges at IP High Court or judges assigned at other divisions. By doing so, specialised judges are able to avoid indulging in tunnel-vision judgment, and continuingly make efforts to endeavour new trial methods.
Hon’ble Justice (Retd.) VR Krishna Iyer Former Judge, Supreme Court
In my view, the collegium system of appointment of judges to the higher judiciary should be discarded. We should have a code of conduct for judges. Certain things are required to be done for the process. An appointment commission, a performance commission and a punitive commission should be constituted. These three will form a constitutional code for judges because appointment of judges is to be done in consonance with the Constitution and a Constitutional amendment is required to make any change to this practice. Nowadays, judges are appointing their favourites by ignoring the meritorious judges.
The collegium has yet not appointed a single woman as the Supreme Court’s judge; what kind of collegium is it? Appointment of judges has become a family affair; favouritism and marked genderism have crept into the system. Parkinson’s Law, i.e. by being idle you create arrears of cases and then say more judges are required to be appointed to take care of pending cases, i.e. creating work by accruing arrears. And Peter’s Principle has become the order of the day in judicial appointment to the higher judiciary. A munsif is competent as a munsif but when he becomes a district judge, he ceases to be so since he is at the higher level; he becomes incompetent to be elevated to the highest level. If you do not choose a person in the high court, who is competent as a district judge but the person who is incompetent as the high court judge and simply because the high court judge is senior and becomes a Chief Justice of the High Court, you select him for the Supreme Court. This should be challenged as when a person is incompetent as a high court judge, how could he be competent to be an SC judge, just on the basis of seniority.
As far as the appointment of judges to the Supreme Court is concerned, the normal practice is that the Chief Justice of a high court is elevated as a Supreme Court judge. It is very rare that an advocate from the Bar directly gets elevated to the position of a Supreme Court judge. At times, even a high court judge supersedes the senior judges of other high courts and being elevated as a Supreme Court judge because of their proximity with other Supreme Court judges or with the executive. Therefore, there is an urgent need to reform the prevailing system of appointment of judges to the Supreme Court.
Suggestions for appointment of Supreme Court judges are as follows:
If the NJSC is established, certainly there would be a sea change in the Indian judiciary and reposing of faith of common people would definitely be reaffirmed. In the present system, there is a complete lack of transparency. Bringing in transparency does not mean interference in the independence of judiciary or administration of justice. The NJSC would ensure that the best legal brain or talent would join as a high court judge, who will not only uphold the rule of law but also strengthen the judiciary as a vibrant pillar of democracy. The NJSC would also ensure the quality and integrity of the Supreme Court judges.
The NJSC would be able to give a fair chance to the bright young advocates too who are meritorious and honest but devoid of any legal, judicial or political proximity, to be selected as high court judges.
In a nutshell, the NJSC would be able to establish the rule of law, in letter and spirit and to do complete justice as the emblem of the Supreme Court rightly prescribes. “Yato Dharmastato Jayah” i.e. “Where there is dharma, there is victory”
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