There is a need for a better, broad-based and transparent methodology for the appointment of senior judges in the High Courts and the Supreme Court.
There is a need for a better, broad-based and transparent methodology for the appointment of senior judges in the High Courts and the Supreme Court.
The Collegium of the Supreme Court of India is in the news once again, and once again for the wrong reasons. This time, five judges are finding it difficult to come together in a single meeting. The Chief Justice of India, Justice UU Lalit assumed office on August 27, 2022. His tenure is short and he stepped down on November 8, 2022. Still, he tries to establish a fast pace. He sets up five Constitution Benches to hear extremely important matters, which were shelved by his predecessors. The CJI also takes it upon himself to fill the six vacancies in the top court. He sets in motion the process required for the Supreme Court Collegium which is enshrined in the 1999 Memorandum of Procedure.
A meeting was held on 26 September in which all the five members of the collegium were present. He took a positive decision on one candidate, Justice Dipankar Dutta, who is now the Chief Justice of the Bombay High Court. Several other names are under consideration for the remaining slots, and these include four Chief Justices of High Courts and an advocate practicing in the Supreme Court. It has been postponed till 30 September. However, the meeting has not taken place on 30 September as Justice DY Chandrachud, to become the senior-most judge and the next CJI, is sitting in the court till 9.30 pm as the meeting cannot take place as per the schedule, seeking approval by the CJI Circulation. tries. Two judges gave the approval but Justice Chandrachud and Justice Nazir stayed the approval. Apparently they do not object to the names but to the process of circulation. Meanwhile, a letter has come from the Law Minister seeking the opinion of the CJI on the appointment of his successor. With this, the curtain on the proposed appointments has been removed. For some reason one cannot fathom, the CJI’s collegium becomes a lame duck during his final month, while his court holds every power till the last minute of his last day in office.
pertinent question
If it were any other body doing business for the selection of the highest officials for the organisation, the people in charge would have to face both questions and criticism. Simply put, since the matter is of obvious importance, why couldn’t five people working in the same building meet the next day, or the next day, to conclude business? If meeting in person was so difficult, of course we are all used to conducting business online. The court itself has been quite adept at doing judicial work online for the many months since COVID-19 struck us. If a name isn’t good enough, why not say it in vogue? If they were good enough, why not just make the appointments possible by following any process, whether in-person meeting, movement or online meeting? If business has to be done, there doesn’t seem to be any good reason for not having it.
The problem, as has been the case with the collegium, is that it has no one to ask these questions. Time and again, it has been widely remarked that it is an extra-constitutional or non-constitutional body enforced by Supreme Court decisions that is virtually taking away the power to appoint judges. The Constitution of India gave the President of India the final word but mandated consultation with the Court. These decisions give the final word for the Court to consult with the Government. Not only that, what makes the problem even worse is that there are no seats for a non-judge in the collegium – neither in the executive, the bar or anywhere else. In other words, there is no one to suggest or question or see what is happening.
In 2014, Parliament unanimously – mark the term unanimous – enacted the National Judicial Appointments Commission (NJAC), supported by state legislatures; It consisted of three judges, the Law Minister and two eminent persons to handle the task of appointment of judges. By a 4:1 majority, the Supreme Court nullified the entire legislative will of a country that was trying to overturn a constitutional coup. If the Court was concerned about the appointments being set aside, it could tinker with the Act and read it, removing another eminent person and thereby securing a position where the judges were in a majority. It would have achieved judicial primacy, providing some executive participation as well as a person representing a larger public constituency. The point is that it will at least provide room on the table for the question Why? more questions Why not to be asked. Accountability and perceived performance can happen only when these questions can be asked and are to be answered. Otherwise there will be duality and ambiguity.
on judicial appointments
In recent times, the government has given up pursuing the commission for judicial appointments. One wonder why. Perhaps the answer partly lies in one collegium after another, which does not bear the curse of the government, notably Justice Akeel Qureshi (he retired as chief justice of the Rajasthan High Court in March). This is hardly a satisfactory solution. The time has come to revisit this question and secure a better, broad-based and transparent method of appointment of senior judges in High Courts and Supreme Court. While doing so, we may also ask why there has been no appointment from the ranks of eminent jurists, which Article 124 of the Constitution deals with. Appointments to the apex court seem to be reserved for judges of high courts, with only a few appointments from the bar. Certainly some approval has to be given to a specific provision made by the Founding Fathers in the Constitution. Or is it the idea that over the years we have not produced a distinguished jurist worthy of his name?
Sriram Panchu is a senior advocate of Madras High Court