System of judges appointing judges!

THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014

A constitution bench of Supreme Court of India is hearing the challenge to the validity of NJAC Act, 2014. In doing so they were not discreet about the fact that judges are the interested parties. The arguments far from being adversarial have been turned into inquisitive enquiry as is apparent by the line of questioning by the judges. It appears that judges are evaluating as to which system is best. The earlier system where executive appointed the judges and grossly abused the position or the present system of in which judges themselves appoint the judges and which is apparently full of nepotism as nearly a 1/5th of all the judges appointed in high courts and supreme court is related to a previous judge. Living or dead. Unfortunately the question of nepotism was not raised by Attorney General with empirical data. At least news papers did not report it. The present system has come under flak from retired judges themselves. One such criticism of judges appointing judges is here. Regarding the corruption by the relatives of judges and inaction by appointing judges read here. Another similar story about corruption is here. Another report about rich relatives of former Chief Justice of India is here. How retired judges are using prefix ‘Justice’ forever i.e. even after demitting the office is another mystery in the face of express prohibition in Constitution. But who can judge the judges?

Any how, the line of enquiry by court in NJAC case is similar to the substantive due process arguments in the USA and is very delicate. It would be wise to tread on this line carefully. In my view court can not lay down the policy of appointment or evaluate a better one. Rather has only to see if the one propounded before it does not deviate from overall scheme of Constitution and thus does not violate basic structure of constitution. Of course it can judicially review it on all other available grounds like arbitrariness etc.

What is similar between India, Pakistan and Mynamar?

It is unfortunate that system of appointment of judges by judges finds similarity with two quasi totalitarian or  totalitarian  countries where military appoints military and the Government has no say and people have no right to know anything about it.

Last year the previous Government in its typical lacklustre style hurriedly passed a legislation called THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014. Click the link to read PDF. By another legislation constitution has been amended to introduce an article 124-A by which a judicial commission consisting of following 5 members, has been created to make appointment:

(1) the Chief Justice of India, Chairperson, ex officio;

(2) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;

(3) the Union Minister in charge of Law and Justice––Member, ex officio;

(4) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People

(5) one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:

And a caveat that eminent person shall be nominated for a period of three years and shall not be eligible for renomination.

In my personal opinion, the above provision is nor only far from being exhaustive, is vague and full of new problems, some of which have been a friend, who though intelligent, is legally a lay man.

Speculation about the future.

While the debate in courts is going on and we shall come to know about its outcome, real soon. a frien asked me about my take on it. This is the query I received from a friend about formation of National Judicial Appointment Commission
“What is your opinion about NJAC ?
Why can’t we have permanent body for appointments?

Can the proposed body ( ad-hock or with short term duration) can select truly deserving  Judges?

We at least need another regular body which will prepare a comprehensive list for High court as well as SC after going through the bio data. security clearance, cvc report etc. Why applications are not being invited from eminent expert in various branches of law and who are desires of becoming Judges.

Why views of  HC is not taken into consideration as provided in the constitution. I am sure this is going to be a hell of mess, are part of AOR?”

This is the reply I gave:

“At the outset, my apology for not replying your mail earlier. In fact it was inadvertently achieved and I found it just now while deleting obsolete mail.
The issue is rather simple. Judicial appointments is a vast power which was abused by Executive by appointing pliant judges. Now CJI and collegium is enjoying this power. Why will they let it go?
Actually NJAC is also not very safe mechanism. In my view we should have an open hearing system of inviting objections before appointment. Similar thing exist in USA but there the appointments are also made for fixed tenure in lower judiciary while Supreme Court judges enjoy life term. Some judicial appointments are by elections as well.
We started with British tradition and are now stumbled upon a tradition which is followed by military in Myanmar and Pakistan.
Transparency in appointments to public office is hallmark of Democracy.
The earlier transparency is introduced, the better it will be.
Hope this will help your chain of thought.”

In reply I got another query:

Yesterday SC has raised one more very valid point, Whether even eminent persons are really capable to select Judges.
I have few of my own queries. 1) Will the Govt.vet the eminent persons? 2) will they be sworn to secrecy, because the eminent persons  shall need to scrutinize the dossiers of the Judges prior to the selection.

Personally feel that many of our problems are due to low moral and personal integrity  of our political class, but off-course that is another story.

This is my reply:

As regards the ‘part of AOR’, I am not sure that I understood what you meant. To me AOR means Advocate on Record which means advocate on the rolls of Supreme Court and entitled to practice in Supreme Court. If that is what you meant the answer is yes.

As regards you other concerns regarding NJAC, I fully endorse your concern. In fact I have already written to you that the present form is merely an excuse to take away the existing sway in favour of judiciary and not a step forward. Transparency is least of the objects.

My guess is this is semi final and not the final.

Movie is still on,

fetch yourself popcorn and coke.

पिक्चर अभी बाकी है दोस्त 
ले आओ पॉपकॉर्न और कोक !

Please share your views or system of appointment of judges in Your Country!!!!!

About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user and sometime an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

One response to “System of judges appointing judges!