Is the new system of appointing senior judges through the National Judicial Appointments Commission an improvement on the one prevailing since the 1990s, under which only judges appointed judges? The alacrity with which the two Bills to introduce the new system were passed – in double-quick time, and unanimously – indicates that the political class united to get its hands on a system that had eluded it.
The level of integrity that the political class, across the spectrum, has displayed in recent decades does not create any hope that the new system will be a better one. For all its faults – highlighted by former judge Markandey Katju through well-timed interventions – the system that has just ended gave the country and its people some relief through judicial activism and forthright decisions when the political system had seriously abdicated.
The fact that two out of the five members of the commission – say, the law minister and one of the two eminent persons – can veto a name will mean that all judges to be appointed henceforth will be those in whom the political class sees no danger for itself. A lawyer or judge who has shown he has a mind of his own and so cannot be taken for granted will have little chance to join the bench. This will promote mediocrity and advantage those who have networked well among both judges and politicians.
Take the case of Gopal Subramaniam, who has both considerable intellectual calibre and a reputation for integrity. By all accounts, he was persuaded by the chief justice of the Supreme Court to agree to become a judge at great personal pecuniary loss (saying goodbye to a thriving practice) but his name was returned as, in Mr Subramaniam’s own words, his “independence as a lawyer is causing apprehensions that I will not toe the line of the government”. His role as amicus curiae in the Sohrabuddin Sheikh fake encounter case had embarrassed the Narendra Modi government of Gujarat.
How will the two eminent persons on the commission be appointed? The chief justice of the Supreme Court, the prime minister and the leader of the opposition will select them. As there is no mention of a veto, it is to be assumed that if the prime minister and the opposition leader join hands to bring in a politically acceptable person, then he gets through. An unholy alliance between politicians of all hues cannot be ruled out. Or else, why should electoral reform, such as the inclusion of what a party spends on the election of a candidate into the calculation of his election expenses, not see the light of day? Or, why do political parties manage to keep out of the ambit of the Right to Information Act?
There is also something intrinsically wrong in the chief justice being a member of a commission and also playing a role in the selection of two others – the eminent persons. One who has come in with the chief justice’s support can be inclined to be supportive of him. In the United Kingdom, five very senior judges are members of the Judicial Appointments Commission – but not the lord chief justice, who is part of the panel that selects the lay members of the commission.
The cardinal issue is, we need judges with high intellectual calibre and integrity, who together represent the diversity of India’s polity. The earlier system was certainly flawed; but under it the country saw some great forthrightness, courage and outstanding judgments, and decisions. Judicial intervention has done the country proud – from forcing all public transport in Delhi to go on compressed natural gas, to ending the loot of iron ore and ensuring that its mining is resumed in a safe and legitimate manner. Our senior judges are not angels and have at times fallen down – but overall, they have filled a vacuum.
In figuring out how a better system can be devised, we can look at Britain with its 15-member Judicial Appointments Commission. It has six lay members, one of whom is the chairperson. These six and a lay justice member are selected by a committee comprising the chief justice, the chairperson of the commission and a lay member who has never been a judge, lawyer, civil servant, member of the commission or its staff. There are five judicial members and one each from among barristers, solicitors, justices of peace and tribunal members.
Now see the commission’s transparent selection process based “solely on merit”. Vacancies are advertised, application forms and information packs issued, applications received checked against requirements mentioned in the information pack, and an assessment made of good character through financial, criminal and professional background checks. Applications are then shortlisted through online tests or paper sift, which includes written evidence, self-assessment and references. Then those shortlisted go through interview, role play and situational questioning. Phew!