“Power tends to corrupt and absolute power corrupts absolutely” Lord Acton

The above statement by Lord Acton needs to be reframed and expanded in the present context of governance as follows:-

The system of checks and balances coined in the context of governance has been in place to keep a tab on abuse of powers and check unbridled authority, unfettered powers and uncontrolled corruption.

The judicial system, has ever since the inception of the constitution, been revered and won accolades for maintaining the rule of law and acting as the real purveyor of democracy. But the recent controversy regarding the appointment of judges to the higher judiciary [the high courts and the supreme court] through the collegium system and a contemplation for a revisit of the procedure for ensuring greater transparency and accountability and maintaining efficiency in administration has created a flutter amongst the legal fraternity and raised eyebrows as well as garnered support for appointment by this process. It is in this context that the collegium system needs to be analyzed and interpreted.

Under the constitutional scheme of things, judges of the higher courts [Supreme Court and High Courts] shall be appointed by the President after consultation in the case of judges of Supreme Court by such judges of Supreme Court and High Court as he may deem necessary [Art 124 (2)]. Provided that in appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted, and in the case of a judge of a High Court after consultation with the Chief Justice of India and the Governor of the State [Art 217 (1)] and in the case of a judge other than the Chief Justice the Chief Justice of High Court.

The language of the Constitution does not speak of appointment by the present collegium system which clearly and unequivocally gives the power to appoint such judges by the President. The present system emerged when the word ‘consultation’ was subjected to strict scrutiny and intense examination on the judicial scales of interpretation which resulted in the emergence of two judgments of the Court.

The first judgment Supreme Court Advocates on Record Association vs. Union of India [1993 4 SCC 441] held that in the matter of appointment of judges of the Supreme Court and the High Courts the Chief Justice of India should have primacy. The Court held that greatest significance should be attached to the view of the Chief Justice of India formed after taking into account the views of the Supreme Court.

In the Presidential reference case [AIR 1999 SC I] the majority of the nine judge bench held that in regard to the appointment of judges to the Supreme Court under Article 124 (2), the Chief Justice of India should consult “a collegium of four senior most judges of the Supreme Court”. The collegiums’ opinion should be in writing and the Chief Justice of India should send his own recommendation along with that of the collegium to the President.

Thus while the former judgment gave primacy to the opinion of the Chief Justice of India, the latter gave the concept of the collegium system which is being followed till the present times. The present system, thus, in the real sense ,gave all the powers of appointment to the collegium with the Chief Justice of India as the initiator and the President only becoming a formal approver.

The questions and controversies being raised about the present system are of opaqueness, lack of transparency, biasness and prejudice and minimum accountability. Each aspect would have to be looked through the prism of efficiency in administration and governance and the improvement towards the same. Also, the present system needs to be analyzed and construed vis-à-vis the procedure being mooted viz. appointment by a Judicial Appointments Commission.

Since studying the administrative and governing system of any nation would mean the analysis of all the three wings viz. the political executive, the administrative wing and the judicial system, the primary task or function of all of them being public welfare in their own ways in their respective spheres, it calls for better co-ordination and relationship between the three wings coupled with greater accountability without in anyway undermining the indispensable independence of any wing.

Since the nature of work of all is public welfare, it becomes imperative to perform it with requisites of fairness, transparency and accountability from the very inception. While transparency would mean greater public access and necessary information on the functioning, appointments and working of these public figures/authorities/institutions, fairness would imply the degree of rectitude and efficiency being employed by such authorities while performing/discharging their duties. Accountability would denote accountability to the public [for whom they work] which in other words would mean the swiftness and promptness with which they are removed when showing biasness, prejudice and malfunctioning [corrupt practices-financial irregularity, moral disintegration and intellectual decay, indolent and cavalier attitude in working].

The judicial wing which is independent of the executive and the legislature works under a three tier structure. While judges of the subordinate courts are appointed in the same manner as their executive counterparts under Article 234 of the Constitution through an examination conducted by the State Public Service Commissions, those of the Supreme Court and High Courts are appointed through the collegium system mentioned earlier.

The questions being raised about selection by collegium [Chief Justice and four senior most judges] are the following:

1. Lack of access of records to the public who are elevated to the bench from amongst the members of the bar.

2. No information regarding antecedents, background of the persons who are appointed as judges.

3. Biasness, opaqueness and nepotism in selection.

4. Selection done in non-fair manner.

The contention that appointment of judges by a Judicial Appointments Commission would undermine judicial independence is untenable. Though independence is necessary for the proper functioning of judiciary, the following points need to be understood:-

1. Independence cannot be used as a tool to shield the required/necessary transparency

2. Access to information cannot be denied under the guise of judicial independence.

Also independence needs to be understood from two different perspectives:

1. Independence in appointments/selection.

2. Independence in working.

While the latter is imperative for maintaining the dignity of judiciary, the former independence by a non-consultative opaque selection process with total lack of information will only erode people’s faith in its fairness and functioning. Independence in the former would mean elevation of only such persons to the bench the records [background, antecedents, reputation, standing at the bar, work] of which are known only by the Chief Justice and four senior most judges with the President only putting a formal stamp of approval.

The collegium being a body whose primary task is of justice dispensation may have neither the requisite expertise nor the infrastructural backing to scrutinize each and every application properly. Many a times it has to rely solely on the strength of representation made by the High Court or senior members of the bar. If inefficient members are elevated, it will effect the working capacity and will be reflected in the judgments the significance of which are always far reaching and of greater magnitude.

The appointment by a Judicial Appointments Commission has worked out the following modalities:

The Commission shall consist of seven members- The Chief Justice of India, two judges of the Supreme Court, Law Minister, two eminent persons as members and Secretary (Justice) in the Law Ministry as member secretary.

The points of controversies being raised are as follows:-

1. The executive members in the commission would make the selection as per their own whims and fancies and in a partial manner undermining judicial autonomy and impropriety and adversely affecting its functioning.

2. The eminent persons who will have a political patronage or other lucrative promises by the government and other non-judicial members will have a larger say making it a one sided affair [will be tilted more towards them in forming an opinion during selection].

Both the points need a serious debate:-

1. As reiterated earlier, independence needs to be looked into only from the perspective of independence in working and functioning. Asking freedom in the selection process under the guise of independence would more likely to make it biased and prejudiced. Given the heterogeneous nature of the composition of the commission, the selection would be thorough and more rigorous after an informed debate, diverse opinion/expertise and better infrastructure, the information of which should be available to the citizens as well as the legal luminaries both under statutory law and through open consultation.

2. What are the criteria for judging that the executive will play a dominant role in the selection process? Under what method the conclusions can be arrived at that the judicial members would have no say and will only sit as mute spectators?

It would be wise to mention the models available in some other countries:-

The judicial appointments commission is responsible for selection of judges in England and Wales. It is a non-departmental public body which was created on April 03, 2006. It consists of 15 members: two from the legal profession [1 barrister, 1 solicitor] five judges, one tribunal member, one lay justice [magistrate], six lay people including the chairman.

Candidates submit a nine page application form and are to be judged on merit alone measured by five important qualities- intellectual capacity, personal qualities [integrity, independence, judgment, decisiveness, objectivity, ability and willingness to learn], ability to understand and deal fairly, communication skills and efficiency.

The judiciary of South Africa consists of:-

1. The Chief Justice of South Africa, the deputy chief justice and other judges of the constitutional court.

2. The President, deputy president and other judges of the Supreme Court of Appeal.

3. The judge president, deputy judges president and other judges of each high court.

Permanent judges in the higher courts are appointed by the President of South Africa in consultation with the judicial service commission as well as leaders of political parties represented in South African National Assembly.

The judicial service commission’s membership includes:

1. The Chief Justice of South Africa who presides over its meetings.

2. The President of the Supreme Court of Appeal.

3. One Judge President designated by the Judges President.

4. The minister of justice and constitutional development, or his/her designated alternate.

5. Two practicing advocates nominated from within the advocates profession

6. Two practicing attorneys nominated from within the attorney’s profession

7. One teacher of law, designated by the teachers of law at South African universities [typically the dean of one of the faculties of law]

8. Six members from the national assembly [including three from the opposition parties].

9. Four members from the National Council of Provinces.

10. Four more persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the national assembly.

The Attorney General consults widely with interested bodies seeking nomination of suitable candidates. In addition, the Attorney General also writes to:

1. State and territory attorneys general

2. Chief Justice of the High Court

3. Justices of the High Court

4. State and territory chief justices.

The Attorney General then considers the field of highly suitable candidates and writes to the Prime Minister seeking his/her and/or cabinet approval. If approved by the cabinet, the Attorney General makes a recommendation to the Governor General who considers the appointment through the federal executive council process. Once the cabinet has approved the Attorney General’s recommendation of the nominee, the appointment papers [including the Commission of appointment] are forwarded to the executive council for consideration by the Governor General. If in agreement, the Governor General signs the Commission of appointment and it is fixed with the great seal by way of authentication. Once the appointment has been approved by the Governor-General in executive council, the attorney general publicly announces the appointment.

Appointments to the superior courts in each province or territory:

Candidates for these courts are screened by a judicial advisory committee established for each province. Each committee is composed of representatives of the federal and provincial governments, the provincial [or territorial] law society, the Canadian Bar Association, the judiciary and the general public.

Lawyers who meet the legal and constitutional requirements can apply, as well as provincial and territorial court judges. These candidates must complete comprehensive Personal History Form [PHF]. In its assessment of each candidate, the committee reviews the PHF and consults references and other persons both in and outside legal realm.

Following its review the committee categorizes lawyer candidates as “recommended” or “unable to recommend” for appointments with reasons for this decision. In case of judge candidates, the committee does not categorize the applicant, but instead formulates “comments” regarding the application. A list of all candidates reviewed by the committee, together with the above categorization and reasons or “comments” in the case of judge candidates is forwarded by the committee to the federal minister of justice. The minister draws an appointment from the list of names received from the committees, and recommends that individual to the federal cabinet. When the appointment is that of a Chief Justice or a Puisne Chief Justice, the recommendation to the cabinet is made by the Prime Minister of Canada.

A more plausible, practical and workable solution would be to appoint the judges of the higher courts through an All India Examination to be conducted by the Union Public Service Commission [under Article 312 of the Constitution] in a fair and transparent manner and an intensive post selection one or two year training program be framed just like the judges of the subordinate courts are appointed by the State Public Service Commission under Article 234 of the Constitution.

In this context it would be prudent to mention the appointment system of judges in China:

In China a High Court judge can be appointed at 23 after he/she passes the National Judiciary examination [similar to the Indian Civil Services] examination and completes the stipulated period of professional training. [The Hindu, December 27, 2010].

It would be also pertinent to quote Justice D.A. Desai [Chairman, Eleventh Law Commission-Report 116, 1986] in this regard:

“Senior and well placed members of the bar are reluctant to accept judicial services a fact universally accepted. Service with poor or adequate salary is hardly attractive to a lawyer who has started earning because he knows that sky is the limit. If experienced lawyer is impervious to judicial service or social accountability, why not catch people young and give them intensive training. A short practice hardly trains effectively. If, on the other hand, intensive pre service training is given to fresh young recruits, they will turn out to be better judges. There are countries in which practice at the bar is not a pre-requisite or essential qualification to be eligible to become a judge!

A good, agile, efficient and transparent administration is the hallmark of democratic functioning for which independence is a pre-requisite. However, one cannot ask for an all encompassing freedom so as to shield transparency and shun accountability completely which may prove harmful for governance. The need of the hour is to revisit the present system of appointment of judges to the higher judiciary to improve administrative efficiency, transparency and overall system of governance.

The author is an advocate and a law researcher working under Dr.Arun Mohan, Senior Advocate, Supreme Court, assisting him in writing his book Justice, Courts and Delays.