NJAC is dead, but the judiciary needs to win back the confidence of people by bringing in transparency and accountability in the selection of judges
Gyanant Singh | November 5, 2015
A constitution bench of the supreme court quashed the 99th constitution amendment and the law enacted to set up the national judicial appointments commission (NJAC) by a 4:1 majority on October 16. While the judgment protected the primacy of the judiciary in appointment of judges, an outburst by the lone dissenting judge discredited the 1993 collegium system, making it incumbent on the judiciary to usher in reforms which it has been resisting all these years.
Though the judiciary had turned deaf ears to comments over its failure to fill vacancies in time, appoint good judges and bring in transparency and accountability, the criticism from within in the form of a dissenting verdict forced the bench to seek suggestions on improvement of the collegium system.
The resistance to reform has been there for all to see. There have been occasions when the court deterred those questioning an appointment by imposing heavy fines, dismissed abruptly a petition against the collegium system and resisted transparency and accountability by filing before itself an appeal (still pending) against a central information commission (CIC) order on disclosure of information pertaining to appointment of judges under RTI.
Now, by thwarting the legislative intervention, the court has taken upon itself the burden of carrying out reforms.
The task is not easy. The 1993 collegium lacks an institutional framework required for dealing with appointments on such a large scale. To begin with, the judiciary needs to realise that appointment is not a part-time job or a task which could be performed over a cup of tea by some senior judges. Such a process only leads to restricting the choice to a select pool of persons known to judges or people who matter.
Apart from procedural changes which are in focus, there is a need to consider setting up an exclusive secretariat or office – both at the level of the supreme court and high courts – to deal with the process of appointment leading to the final selection by the collegium. Such a step can reduce the burden on judges in the collegium to mere selection and divest the responsibility of filling up vacancies in time, maintaining seniority list, short-listing candidates by following some objective criteria and other tasks. This would not only reduce chances of error but also help in filling the vacancies in time without affecting judicial work.
Though it would amount to a fundamental change requiring sanction by a bench larger than the benches (the 1993 ‘second judges’ and the 1998 ‘third judges’ cases) which decided the composition of the collegium, the judiciary should also consider having all judges of the court in the collegium to bring in greater transparency and objectivity. In the alternative, it should at least consider involving other judges of the court (to which appointment is to be made) in the short-listing process.
It is ironic that such crucial decision on appointment of judges is left to a few senior judges while full court shortlists lawyers to be designated senior counsels.
The involvement of the full court will not only ensure greater transparency but also enhance the confidence of the people. Justice J Chelameswar, in his dissenting opinion, has noted how speculations did not leave untouched even judges of the supreme court following “quick volte face” by the collegium in some cases.
“Such decisions may be justified in some cases and may not in other cases. There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this court,” he said.
Coming to the functioning of the collegium irrespective of its composition, there is a need to specify the criteria for selection and make the process amenable to RTI, even if it is with certain exceptions. There is no doubt that allowing RTI during the process of selection could prove counterproductive but leaving scope for scrutiny of records by the public even at a later stage could go a long way in ensuring accountability.
Further, there is a need to consider public notification of vacancies to enable eligible candidates apply for the posts. The rush could be dealt with by laying down modalities for screening of such applications. Such a step could be helpful in the backdrop of criticism over the collegium system promoting favouritism and failing to appoint good judges. The right to apply for a vacancy would not only ensure equal opportunity to those eligible for the post but also give a chance to the collegium to choose from amongst the best.
The majority scuttled an attempt by the executive to have a role in the selection of judges. However, independence of judiciary does not just depend on ‘who’ appoints judges but also on ‘how’ judges are appointed. The judiciary stands to lose its independence – despite primacy in appointment – if the need for procedural changes is ignored. Justice Chelameswar, whose opinion may have weighed heavy when the majority decided to seek opinion on improving the collegium system, has stressed that the collegium system “in its operational reality is perhaps not the best system for securing an independent and efficient judiciary”. He relied on a lecture delivered by justice Ruma Pal, who was a member of the supreme court collegium before she retired, to draw the inference. “Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system,” she had said.
While the focus is on reform in the collegium system, there may also be a need for reform in some other areas having a bearing on appointments and the independence of the judiciary. The executive, apart from giving suggestions on improvement of the collegium system, can on its own introduce changes which could insulate judges from outside influence.
The increase in the retirement age of high court judges from 62 to 65 years to make it at par with that of supreme court judges could to a large extent minimise threat to independence on account of, in the words of justice Ruma Pal, sycophancy and lobbying within the system. A high court judge enjoys no less power or respect than a supreme court judge but elevation to the supreme court gives an additional term of three years as a judge. Though a constitution amendment would be required to increase the retirement age, the executive should not hesitate to make a move in this direction. Apart from doing away with one big incentive to please superiors or political bigwigs, the increase would make available the services of experienced judges who could help tackle the problem of pendency.
As highlighted by former chief justice RM Lodha, the lure of post-retirement jobs also leaves scope for influencing decisions by judges. Justice Ruma Pal had talked about “unspoken obligation” as one of the causes influencing a recommendation for appointment of a judge. A minimum cooling off period after retirement can be prescribed before a judge could accept a new assignment to minimise such influence.
The reforms, however, require a resolve on part of both the executive and the judiciary to usher in a change for good. The executive needs to do its bit instead of getting into a confrontation with the judiciary over the NJAC verdict. The judiciary should see this as a chance to make up for the lost opportunities for reform in the past.
There is hardly any option. With NJAC dead and the existing scheme discredited, only a revamped collegium system can win back the confidence of the people in the system.
Singh is a Delhi-based lawyer.
(The column appears in the November 1-15, 2015 issue)
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