Judicial Appointment

10 Dec 2022 Judicial Appointment

News: The Vice President of India recently commented on the ongoing heated debate between the Central government and the Supreme Court over the matter of judicial appointments.

National Judicial Appointment Commission:

SC in Supreme Court Advocates on Record Association (SCAoRA) case/Fourth Judges case, has held the NJAC as ultra vires to constitution on 4:1 judgement. One judge objected to the understanding that the judiciary is the only constitutional organ protecting the liberties of the people.

Issues judiciary pointed in NJAC:

• Power of veto to any two persons including 2 eminent persons is plain “obnoxious.”
• Participation of the Prime Minister and Leader of Opposition in the selection of these “eminent persons.”
• Participation of law minister in the NJAC.

Analysts (Justice A. P. Shah, former Chief Justice Delhi HC):

• Lawyers like Prashant Bhushan and Ram Jethmalani has praised the judgement, while other jurists such as KTS Tulsi has opposed it.
• Though there were some legitimate concerns but striking down the whole Act was not warranted. They could have interpreted it according to the needs. For example, it could have read that the veto is meant for judicial persons only – both in NJAC and appointment committee for eminent persons.
• They should have given head to the will of the people.
• To say that neither the political class nor civil society can have a say in judicial appointments is against the system of checks and balances, which is also a part of the basic structure of the Constitution.
• The executive, with vast administrative machinery under its control, is capable of making enormous and valuable contribution to the selection process. 

Improvement in collegium system:

• Clear selection rules and guidelines.
• Consultative body, which could include distinguished jurists, leading lawyers etc from outside the collegium, to assist the collegium in scrutinizing potential candidates.
• Provisional selections should be published to enable any material or adverse information to surface. Strict timelines for the entire process from shortlisting to recommendations.

Remarks:

• Parliamentary Standing Committee report in its recent report has accused the Supreme Court of distorting the original constitutional mandate and recommended that the original constitutional position on judicial appointments be brought back.
• Dr. B.R. Ambedkar, had also said that “after all, the Chief Justice is a man with all the failings which we as common people have”.

Example of biases in selection:

Recently, the collegium recommended the elevation of Justice Maheshwari and Justice Khanna, instead of two judges whose names had been considered earlier. This is considered arbitrary, as the composition of collegium changed and so do the recommended judges.

As Faizan Mustafa has pointed out the Indian judges are not supposed to have any political affiliation. But is it impossible to completely insulate judges from governmental influence — as George Orwell has pointed out “the government is everywhere, and judges as fellow human beings do get influenced by it.” Also, the American sociologist, Gouldner has said that the universal norm in human societies is that individuals are obligated to reciprocate favours received.

Memorandum of Procedure (MoP): 

Supreme court, after restoring the collegium system, had directed the Centre to frame a new MoP in consultation with the CJI and 4 senior most puisne judges of SC, who are part of the collegium.

• MoP contains various elements necessary for selection of judges like eligibility criteria, procedure for dealing with complaints, screening etc.
• However, this has led to an impasse after government and judiciary has been unable to come on common ground.
• Consequently, the judicial appointments are getting delayed and making it difficult for courts to function.

MoP submitted by the govt.:

• To implement the judicial direction to “widen the zone of consideration”, the latest MoP draft wants all Supreme Court, High Court judges, Attorney general in case of SC, and CM and advocate general to be able to recommend names to their respective collegiums.
• There would be High Court screening committees to screen the candidates before forwarding them to the HC collegium. And once the High Court collegium clears certain names, they would be sent to a similar appraisal committee at the Supreme Court, before being finally referred to the SC collegium. This two-fold vetting process would ensure transparency in judicial appointments.
• The government has further asked the judiciary to fix an age for High Court judgeship and make it “non-flexible.” It also wants the mechanism for redressing complaints against judges to remain within the judiciary.

Issues raised by SC (update after the above issue):

• Government’s right to reject a recommendation on concerns of national interest. Currently, if government returns the candidate’s file to the collegium and the latter reiterates its recommendation, then government has to comply.
• Wide zone of consideration includes non-judicial persons.

Procedure for appointment of CJI:

Memorandum of Procedure of Appointment of Supreme Court Judges provides following procedure: –

• It says “appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office”.
• The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment at the appropriate time. The Memorandum does not elaborate or specify a timeline.
• After receipt of the recommendation for CJI office, the Union Minister of Law will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment.

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