The crucial issue to be examined in the search for a proper system of appointment to the higher judiciary is how far the appointment procedure secures the personal independence of judges

By striking down the National Judicial Appointments Commission Act and the 99th Constitution (Amendment) Act as unconstitutional, the Supreme Court has, once again, focussed public attention on the process of appointment of judges to the higher judiciary. Neither the Executive-appointment model, which prevailed till 1998, nor the judges-appointing-judges (Collegium) model, as practised till recently, have been found satisfactory to preserve the independence of the judiciary while promoting efficiency and accountability in the system. >The court is now hearing views and suggestions from the government, the bar and civil society on how to reform the process while keeping control over the appointment of judges with the judiciary itself.

Under the scheme of the Constitution, the final interpreter of the law is the court, not the legislature or the executive. Judicial independence is, therefore, central to democracy because it is the judiciary which helps the realisation of the Rule of Law and protection of human rights. But the concept of independence is a complex one which subsumes in it concepts like impartiality, accountability, efficiency and respect for other institutions of governance. In this regard, one has to distinguish individual independence from institutional independence, adjudicative independence from administrative independence, as well as actual independence from perceived independence. These relationships have to be factored in while appointing judges to the higher judiciary. Admittedly, a judge’s personal independence is incomplete unless it is accompanied by the institutional independence of the judicial branch. The idea of a separation of powers is related to the latter aspect of independence.

Independence and appointment



The crucial issue to be examined is how far the appointment procedure secures the personal independence of judges. The search for a proper system of appointment will have to address this fundamental question if the public is to be persuaded to accept the appointment system in the name of protecting the “independence of judiciary”. If judicial independence is about freedom from all pressures in the exercise of the adjudicative function, how can the appointment process secure it? Are matters of impartiality, integrity, propriety, equality, competence, etc. on which personal independence is dependent better assessed in a transparent, participatory commission system with pre-defined norms and procedures than in an opaque system managed by judges alone? This was the larger issue contested in the Supreme Court, for which the judgment did not provide clear answers. The court is now trying to figure out how the collegium can be retained and still secure independence and accountability on which it failed to prove its superiority to the earlier model.

Transparent and objective process



The pool of eligible candidates for judicial selection is partly determined by the Constitution. The Constitution does not speak about standards of integrity, propriety, competence, independence, etc. as qualifications essential for judicial selection. Apparently, they are taken for granted and left to the selectors to assess them by whatever means available to them. Collegium judges say they know the qualities of the men and women practising before them and no one else can claim better knowledge about this. One may then ask how wrong appointments have been made by the collegium judges; what the procedures they employed were to verify their knowledge on attitudes and values of prospective candidates and how fair they were; what the pool of candidates from among whom they made their selection was, whether it was fair to those outside the pool, and whether they were still eligible. If these justifiable questions have to be addressed in the selection process, there has to be a verifiable method of creating a pool of eligible persons for consideration. The system of examination and interview employed in the selection to the lower judiciary is perhaps not acceptable either to judges or to advocates. In the circumstances, a transparent procedure is to prescribe the norms and standards expected of candidates seeking to be appointed as judges and invite applications from them. Alternatively, they can be nominated by retired judges, senior advocates, bar councils or bar associations, etc., testifying to their possession of qualifications prescribed. On receipt of applications, a system of shortlisting based on comparative merit, again according to pre-determined norms and procedures, can follow to identify those who are meritorious. Both the original list of applicants/nominees and those shortlisted along with their details can be posted on the website of the court for a reasonable period to elicit objections, if any, from the government as well as the public. There can be a technical committee of retired judges to shortlist the applications and to respond to objections/grievances in the initial stage of selection. This part of the procedure should be open to Right to Information Act queries as well.

Need for a secretariat



The collegium will then sit to verify and decide the final selection of candidates who deserve to be appointed. The list of selected candidates can be more than the number of vacancies and also be in the order of merit. Naturally, personal interaction through interviews may be necessary at this stage to prepare the final list. The list may be valid for a two-year period and the process can be repeated every two years. There are standardised psychological tests to measure the extent of integrity, independence, sense of equality and other values essential for adjudicative independence. The whole process can thus be made transparent and fair and less prone to abuse. The selection has to based on objective criteria with appropriate forms of weightages so that comparative merit is determined on an aggregate of scores awarded by each member of the collegium. The idea is to eliminate the possibility of a wrong choice making it to the high bench. Naturally, the process is long, time-consuming, technical and professional, which sitting judges of the collegium cannot undertake by themselves. Hence the need for a permanent secretariat.

Given the nature of the procedures recommended, the tasks involved are of a continuing nature involving professional and technical expertise to be supported by secretarial services. Small secretariats at the level of the Supreme Court and High Courts and supervised by collegium judges become necessary for the purpose. They will have a small technical panel of retired judges known for their integrity, efficiency and independence to gather from High Courts the positions to be filled, to invite applications/nominations from eligible candidates, to do the shortlisting according to the norms and standards set by the law/collegium, and to respond to objections and queries, etc. from the public/governments. They will prepare a manual for streamlining procedures and develop software to digitise and expedite the processes. The processing can perhaps be done centrally after receiving the applications/nominations from States. The High Court will only do “a post office job” initially. Later, when the shortlisting is completed at the Central level, the list will be sent back to the respective High Courts/State governments where the collegium/government will make its/their choices and recommendations to be sent directly to the Supreme Court Collegium. Since the shortlist has been on the websites for a considerable period of time and governments would have adequate opportunity to raise their objections, if any, it may not be necessary for the appointments to be delayed for further clearance from the Executive. As the collegium secretariat in due course will develop a databank of all judges and aspirants to judicial posts across the country, it can well handle their transfers and promotions under the guidance of the Chief Justice and collegium of judges.

Representing a full court



As judicial independence is both an individual and collective responsibility, it is important to involve the full court in the selection, appointment and transfer processes of judges. Towards this end, it is necessary to broadbase the membership of the collegium. As most High Courts have nearly 50 or more judges, and their numbers are increasing, it is not possible to have the entire body of judges sitting in the collegium to deliberate on issues of appointments. At the same time, it is not acceptable to have the Chief Justice and two or three of his senior colleagues only deciding the issues which are of importance to the entire body of judges. As such, broadbasing the collegium by accommodating all judges on a rotational basis is something that has to be evolved. It is possible to enlarge membership of the collegium in each High Court and Supreme Court to a third of the total strength of the court. Such an enlarged body has possibilities of being inclusive of women, minorities, Scheduled Castes and Scheduled Tribes, and therefore promotive of the constitutional goal of social justice in judicial appointments as well. A third of members can retire every two years thus bringing into the collegium fresh minds and wide representation.

It is difficult to accept the theory that all advocates selected through the processes prescribed will turn out to be competent judges from the day they join the high bench. According to a study, it takes five to 10 years for an advocate to transform himself/herself into becoming a competent judge. The duration can possibly be reduced through institutionalised education and training. This was the idea with which judicial academies have been established in various States and at the national level. Unfortunately, the lack of trained judicial trainers and the absence of clear policies on human resources management in the judiciary have led to a situation where the development of the capabilities of individual judges has been neglected. The result is a poor quality of judgments, an inordinate delay in the processing of cases and judges retiring without delivering judgments on cases which they have heard. The trend has been a threat to institutional independence and not addressed by the judiciary adequately. The collegium has to find a way to assess the professional competence and productivity of the candidate at the time of appointment and insist on training for those who are inadequately equipped to handle adjudicative tasks.

The executive and legislative branches have to bring in immediate reforms that are essential to supplement efforts at strengthening the collegium system. There must be a uniform age of retirement for judges at all levels; it could be 65 or even 70. Of course, there must simultaneously exist a system of weeding out the dead wood after the age of 50. What is the rationale of retiring efficient judges at 62 or 65 when there is an inadequate supply of competent judges to fill the vacancies?

In addition, the time for an All India Judicial Service has come and the government should legislate for the purpose. Because of the Five Year Integrated LLB programme and the National Law Schools experiment, the country now has a steady supply of bright young lawyers every year to look after the legal services needs of the nation. They are technology savvy and are also amenable to modern methods of adjudication, if trained suitably. Within 10 to 15 years of serving the lower judiciary, they will acquire the expertise and the experience to fill in the expanding needs of the higher judiciary. The difficulties of finding suitable candidates for the high courts will disappear within a decade of establishing the All India Judicial Service.

Let the window of opportunity provided by the Supreme Court in looking at suitable procedures for selecting judges be utilised to push for other structural changes necessary in order to give the country a judicial system which will decide disputes competently, and in reasonable time and expense.

(Prof. N.R. Madhava Menon is a former director of the National Judicial Academy.)