Change is inevitable, governments change, trends change, one system makes way for another, and it could be for the better or worse. Nevertheless, change is constant and if it is in a positive direction it should be welcomed. Very soon the collegium system of appointing judges could be replaced with a judicial appointments commission (JAC), which would take up the mantle of appointing and transferring judges. The objective behind the move is to bring transparency in the system as opposed to the present opaque system of judges appointing judges and judges judging them.

What the framers of the Constitution had envisaged?

Even the framers of the Constitution never envisaged a system like the one in practice. The judge’s cases have interpreted the word consultation under Articles 124 and 217 to mean concurrence and therefore, it has become necessary to restore the balance which the Constitution makers had envisaged. It would be pertinent here to revisit the constituent assembly debates where Dr. B R Ambedkar spoke on the issue of concurrence with the chief justice regarding appointment of judges to the higher judiciary. He said, “With regard to the question of the concurrence of the chief justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgment. I personally feel no doubt that the chief justice is a very eminent person. But after all the chief justice is a man with all the feelings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day. I therefore, think that is also a dangerous proposition.”

The founding fathers had the foresight to see the dangers that a system with unequal participation in the selection of judges could pose to the institution and to the nation at large.

Post-independence era and developments thereafter
Therefore the expression ‘consultation’ was used to ensure that no single authority could wield absolute power. In the early post-independence years, judicial appointments were made according to plan [Fali S. Nariman, Before Memory Fades: An Autobiography, New Delhi: Hay House, 2010]. Therefore it was considered appropriate to seek the opinions of the CJI and the chief justice of the relevant high court. There was a visible change in the appointment procedure in the 1970s, the decade that witnessed sharp conflicts between the political class and the judiciary [Zia Mody, Ten Judgments That Changed India, New Delhi: Penguin, 2013].

In 1982, the union law minister issued a circular to the Punjab governor and chief ministers of all states except the north-eastern ones stating that one third of judges in every court must come from outside. The intention was to promote national integration. This caused uproar in the country and the constitutional validity of such a move was questioned, and this is how the First Judges case became a part of history. In the First Judges case [S P Gupta v. Union of India 1981 Supp(1) SCC87], the court said that the executive is the final authority on the appointment of judges. By the time the Second Judges case [Supreme Court Advocates-on Record Association v. Union of India (1993) 4SCC441] came before the supreme court, the judiciary wanted to nurse the self-inflicted wound and thus retained complete control over the appointment of judges to the higher judiciary. The supreme court said that consultation with the CJI would mean a binding consultation on the government. The court held that the word consultation had to be interpreted in the constitutional context which aims at maintaining the independence of the judiciary. First Judges and Second Judges cases took the country from one rocky road to another. And the Third Judges case [In re Special Reference 1 of 1998] only added more rocks. This is how the consultation of pre and post 1993 metamorphosed into an institutionalised collegium system in 1998.

Dissatisfaction within legal fraternity
The collegium system has been abused by both the appointers and the appointees alike. People in the past have argued that the parent high court of a supreme court judge becomes his/her constituency and there is a likelihood that as per his/her preferences he/she might allow or block the people being considered for elevation to the apex court. It has also been pointed out by observers of politics and public life in this country that in the recent times some brilliant judges in high courts did not make it to the supreme court because of the abuse of the collegium system. Also, the collegium in the high courts is no different and people act on their own biases and prejudices.

The collegium system has proved to be a failure but pre-collegium era was not an ideal one either. A third alternative which would address the issues that have emerged from the past and present practices is the need of the hour. This has to be done at the very earliest because there is growing dissatisfaction within the legal fraternity. A legal luminary like Fali Nariman after the Second Judges case candidly said that this was the case he won but one that he would prefer to have lost [Mody]. Justice J S Verma was disappointed with the manner in which the Second Judges case was implemented. He said his judgment has been wrongly implemented. Appointment to the higher judiciary has to be a joint or participatory exercise and since this has not been happening some rethink is required [Interview with Justice J.S. Verma, former Chief Justice of India’, Frontline, vol. 25, issue 20, 27 September 2008-10].

Looking at an alternative
The Judicial Appointments Commission Bill 2013 was introduced in Rajya Sabha on September 5, 2013. The Bill requires constitutional amendment and aims to scrap the collegium system. The Bill seeks to set up a judicial appointments commission (JAC) to recommend appointment and transfer of judges to the higher judiciary. It also states that the JAC will make the participants in the selection process accountable and introduce transparency in the process.

The statement of objects and reasons of the Bill reads, “The proposed Bill would enable equal participation of judiciary and executive, make the system of appointments more accountable and thereby increase the confidence of the public in the institutions.” The Bill seeks to constitute a panel headed by the CJI to appoint and transfer senior judges. The other members of the proposed commission would be two senior-most judges of the supreme court, the union law minister, secretary (Justice) in the law ministry as convener and two eminent persons as members. The leader of the Opposition in either Lok Sabha or Rajya Sabha will be part of the committee that will be set up to nominate two eminent persons to the JAC. The committee will also have the CJI and the prime minister as other members. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination.

Under the proposal, the Centre will intimate the JAC about vacancies in the supreme court and high courts. The views of the governors, chief ministers and respective chief justices of the 24 high courts will be elicited in writing for appointment of judges as per the procedure which could be determined by the JAC. The government also proposes to insert a new Article 124A to set up the proposed commission. Is the JAC the best alternative that is available or can there be something better, is the question that needs to be asked. It is indeed a step in the right direction but for it to be efficacious a few changes should be introduced in the proposed bill. A strong and independent appointment procedure is the basic requirement for maintaining the independence of judiciary which would in turn ensure that people continue to enjoy the confidence of the institution. The process of appointment of judges to the higher judiciary has to be an inclusive process. To give effect to this inclusiveness, practicing members of the legal fraternity should also be consulted. Inputs from the bar council in the appointment of judges are highly desirable. Legal fraternity could be represented by the chairman of the Bar Council of India since it is an elected post and there should not be any questions regarding appropriateness of representation. The other prominent person from the legal fraternity should be the attorney general of India, which is a constitutional post and since the AG acts as an advisor to the government and the president, the commission would benefit from their presence and inputs. The appointment of judges should not only be done in a transparent manner but should also look transparent. India could follow the system that is followed in a democracy like the US, where federal judges, including those of the supreme court, are appointed by the president with the consent of the senate. The senate hands over the nominations to the judiciary committee, which holds a public hearing before taking a vote. A majority vote of the senate is then required to confirm a nomination. The purpose of this exercise is to ensure transparency at multiple levels. In the Indian context also there should be discussion and debate about the candidates who are being considered for the post of high court or supreme court judge. In India, appointments at the supreme court level are generally done from the available pool of high court judges and therefore it is imperative that the judges at the high court level are carefully chosen. In England and Wales there are certain criteria on the basis of which candidates for judicial appointments are chosen. These include legal knowledge and experience, intellectual and analytical ability, sound judgment, decisiveness, communication and listening skills, authority and case management, integrity and independence, fairness and impartiality, understanding of people and society, maturity and sound temperament, courtesy, commitment, conscientiousness and diligence.

In India, these criteria could be added to the current bill especially in case of selection of high court judges.

The present piece of legislation is a step in the right direction but it certainly can be made better if good practices from other jurisdictions are incorporated.