Akshay Pathak and Neha Kumari
“There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured.”
– Dr. B. R. Ambedkar
INTRODUCTION
With the recent remarks of Former Union Minister for Law and Justice Kiren Rijiju, the enigma surrounding the appointment of the judges in higher Judiciary has resurfaced once again. Vice President and Rajya Sabha Chairman Jagdeep Dhankar reinforced the statement of the Law Minister by the comments that the collegium structure is opaque and needs reconsideration, saying that it is “never too late to reflect” on the NJAC. There have always been plenty of questions and concerns about the process of appointing judges to higher courts.
When the SC upheld the Collegium System and ruled the NJAC unconstitutional in 2015, it appeared as though the storm would finally subside, but instead, it has just worsened. The way the collegium functions and the current mishaps have reignited the discussion over whether or not the collegium should still exist. The SC has passionately maintained in a string of rulings that the collegium structure safeguards the “independence of the judiciary” while at the same time, allegations of lack of transparency and equal representation are being flouted.
This blog, making comparisons to the European Charter on the Statues of Judges, aims to identify the flaws in the current system in the selection and appointment of judges. However, it doesn’t aim to search for an ideal alternative approach but rather seeks to suggest amendments to the existing system.
EUROPEAN STANDARDS – THE PROTOTYPE OF A UTOPIAN JUDICIAL SYSTEM?
In July 1998, The European Charter on the Statute of Judges (hereinafter, ECSJ) was adopted by various European nations in order to make the judiciary, within their country, independent from legislative or executive interventions. Despite the lack of a mandatory force, the ECSJ established several precise guidelines with explanations for making the judicial system accountable, independent, and protected from the influence of third-party actors in the European nations.
- Objective Criteria
As per ECSJ, there should be some objective criteria for the appointment of judges, such as their ability to assess freely and impartially the legal matters which will be referred to them and there should not be any law or regulation that precludes the appointment of a specific individual as a judge merely on the basis of sex, ethnicity, or socioeconomic origins, or because of their political, philosophical, or religious beliefs. While on the other hand in the collegium system, there is no such guideline which lays down objective criteria for the appointment of judges.
- Appointment of Judges
According to the ECSJ, every decision affecting the recruitment, appointment, advancement, or removal of a judge from office in the higher judiciary must be made by a body independent of the executive and legislative branches, and at least half of its members must be judges chosen by members of the legal fraternity, such as attorneys, judges, and other legal professionals. While the collegium system in India is independent of legislative and executive powers, there are no rules or regulations that require judges in the collegium system be nominated by their peers from the legal domain.
- Termination of the Office
In ECSJ, there are clear and elaborate grounds for the termination of office. The statute establishes the circumstances in which judges can be removed from a case for the reason of a close relationship with the victim or the accused and by the reason of the legitimate and objective doubts that threatens the impartiality and independence of the judiciary. However, in the collegium system, there are no such rules, regulations, or norms imposed on judges that ensure that nepotism, conflict of interest, etc. are precluded.
These foregoing criteria collectively laid down the foundation of an independent judiciary. However, one must remain cognizant of the fact that a strong foundation does not necessarily means a strong independent judiciary, so even after abiding by these standards there might be instances where the judiciary might suffer from other ailments namely corruption, conservatism, etc. hence terming them as utopian standards will nothing short of exaggeration.
LACUNAE AND SUGGESTIONS
There is little to no doubt that the collegium system as a method of appointing judges is fraught with significant lacunae. But the same cannot be resolved at the risk of compromising the independence of the judiciary—a middle path needs to be discovered by inculcating a sense of integrity and introducing transparency in the collegium system by giving it a democratic bent.
A lack of transparency while appointing the judges is one of the major flaws which has been pestering the collegium system for the last few decades—nobody outside the collegium knows why certain judges are selected and rejected.
For this to end, reform of the collegium system ought to be based on the following principles, each of which need to be taken into account for structuring the collegium system from the grass root level into a more transparent and lucid mechanism with checks and balances.
- Transparency
The most compelling critique of the collegium system is that judges are appointed in a wholly clandestine manner—even the RTI act fails to penetrate the wall put forward by the judiciary in protecting the interests of the collegium system. So, while reforming the collegium, the semblance of transparency must be present in every stage of appointing process.
However, this does not necessarily mean that transparency would be accomplished merely by stating that members of the collegium system would act in an impartial or transparent manner, but with the help of an exhaustive set of rules and regulations which can guide the members of the collegium system. These guidelines would inculcate a sense of credibility and legitimacy in all stakeholders outside or within the legal domain.
- Diversity
The lack of diversity also plays an important role in the credibility of the collegium system—it took SC 37 years to appoint its first female judge—even the advent of the collegium system did not alleviate the situation of women in the Indian judiciary.This is evident from the fact thatthere are only 30 per cent women judges in the lower courts and 11.5 per cent in high courts as of today. This doesn’t stop here – surprisingly, India has not seen a woman Chief Justice even when it observes 75 years of Independence.
In such a situation, assuming that any transparent process will result in the nomination of deserving women as judges in the higher judiciary is insufficient. The efforts that are taken to infuse diversity and establish it as a norm and practice for the appointment of judges will determine the future of the collegium system.
The following steps can be taken into consideration to make the upper echelon of the judiciary more diverse:
1. There should be a binding rule to have some reserved number of female judges in the collegium system (regardless of seniority).For instance, the International Criminal Court (ICC) Assembly of States Parties provides that, States must direct their votes so as to always ensure at least six judges of each gender at the bench. Along similar lines, the Collegium system must adopt a minimum requirement of female judges in the collegium system.
2. Some tangible steps need to be taken to promote present female judges in High Court to be chief justices of the High Courts. Many have stressed the importance of diversity and gender equality during the fourth annual Geneva Forum of Judges and Lawyers organized by the International Commission of Jurists (ICJ) and suggested to be done both in terms of the criteria and procedures that are being used as well as in terms of the composition.
3. The current restriction on appointing judges to the SC only when they reach a particular age has to be lifted in order to elevate more women Judges to the SC.
- Competence
One of the critical aspects of maintaining transparency is to lay down Rules and regulations which clearly define standards and criteria for appointing judges d. Although subjectivity to a certain extent, while appointing judges is inescapable, but this should not hold us from laying down certain threshold standards to measure the competency of the judges.
This becomes even more crucial in contemporary times, where every exercise of authority is subject to the test of arbitrariness. These rules and regulations would ensure that there is no chance of arbitrary use of power in the appointment of judges.
- Conflict of Interest
Nowadays, it is quite common to come across allegations of biasness against judges within the collegium system. The collegium system is regarded to be rife with conflicts of interest between the collegium members and the people they choose to serve as judges in the High Courts and Supreme Court. The appointment of Justice Soumitra Sen to the Calcutta HC despite allegations of misappropriating funds on him and passing over of Justice Akil Kureshi for promotion as Chief Justice in Gujarat HC are even though him being the senior-most judge are few of the recent events of biasness and preferences. So, the issue of conflict of interest must be thoroughly dealt with in the collegium system in order to make it more credible forall stakeholders within the legal domain. That being the case, there is an urgent need for the collegium system to formulate rules and regulation governing instances of conflict of interest while appointing judges.
A NEW APPOINTMENT PROCESS WITHIN THE COLLEGIUM SYSTEM
While taking into account the above flaws and suggestions, the process of selection of judges must adhere to the following steps to significantly transform the existing mode of appointment of judges. This mechanism must keep in account the following.
- Criteria for the Selection of Judges
The first step in the reform of the collegium system must be the formulation of a comprehensive set of standards and criteria for the appointment of judges. These standards and criteria could include diversity and representation, background checks, ability to write clear and well-reasoned Judgments, track record and professional reputation etc. This would ensure that judges in the highest echelons of the Judiciary are chosen solely based on their competence and not by the judges’ arbitrary mindsets.
- Application Process and a Rigorous Scrutiny of the Candidature
To make the appointments more objective in nature, there is a need for an application process, which shall include a nomination system. Both of these processes, when carried out in tandem, would ensure that judges nominated on the Standards and criteria mentioned in the foregoing heading. This process essentially would do two things, firstly, it would allow all the competent attorneys, judges, and other legal professionals to apply for the vacancies in the higher judiciary—this would ensure a diverse pool of candidates from various fields of expertise for the selection. Secondly, it would bring sense of transparency in the collegium system as the selection or nomination from this diverse pool would base on the criteria that were formulated.
- Permanent Institutional Mechanism within the Supreme Court
There is an urgent need to establish a distinct institution to overlook the matters pertaining to selection of judges to the collegium system. This would ensure both transparency and procedural fairness in the appointment of judges. One of the distinct features of the institution would be to conduct the election for the judges who would preside over the collegium system to review the application nominated through the criteria formulated. The judges from election must be chosen by members of the legal fraternity, such as attorneys, judges, and other legal professionals. This institution would ensure accountability of the collegium system to all stakeholders.
CONCLUSION
The historical setting in which the collegium system has developed is distinct. Prior to 1993, the executive dominated the upper judiciary and appointed the majority of the judges. The courts rejected this practice by introducing the collegium system in the Second Judge Case.
The National Judicial Appointments Commission (NJAC), which was later introduced by the government in an attempt to lessen the influence of the judiciary over appointment, was also overturned by the SC, which would have essentially restored executive dominance.
However, it is stated that the solution to executive dominance cannot be judicial domination and that a balanced approach that considers the interests of all stakeholders must be developed. It can be either ensured by amending the existing system or by introducing a whole new structure by taking inspiration from other judiciaries which have set a bar in terms of independency.
The authors are second-year students of National Law Institute University, Bhopal
Image Credits: LiveLaw
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