LAW RESOURCE INDIA

Reform judges’ appointment

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on February 15, 2010

EDITORIAL / ECONOMIC TIMES FEBRUARY 15, 2010

Justice A P Shah is dot on when he points to the total lack of transparency in the system of appointments to the higher judiciary. If the EARLIER system where the executive had the upper hand, was bad as it led to politicisation of appointments, the present one in which the Chief Justice of India (CJI) makes the choice, based on consultations with senior colleagues in the Supreme Court collegium, is no better.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

It suffers from as many, if different, ills as was brought home in the recent controversy over the appointment of Justice P D Dinakaran, who faces corruption charges , to the SC. The problem is not limited to promotion of judges to the SC, but afflicts the selection of judges to the high courts as well. There are no clear parameters for selection , no reasons need be recorded for selection or rejection and, worst of all, there is no redressal mechanism. There is, thus, likely to be a tendency to ‘toe the line’ , to hesitate to give judgements that differ from those given by, say, another senior judge.

Instances like the recent judgement of the Delhi HC where a three-member division bench ruled against the position favoured by the CJI on declaration of assets by Supreme Court judges will increasingly become a thing of the past. That must not be allowed to happen. True, it is impossible to eliminate subjectivity in any selection process. But objective factors should get more play. The present process does not do that, leading to charges, warranted or unwarranted, of favouritism.

This is where we could take a leaf out of the books of the British from whom we draw our legal system. In the UK too, till 2006, judicial appointments were made by the Lord Chancellor and like in India were steeped in secrecy. Over a period of time, as this system came under criticism, radical reforms were brought in by the Constitutional Reforms Act, 2005.

The UK now has a Judicial Appointments Commission — ironically with a civil servant of East African Indian origin as chairperson — and the selection of judges is done solely on merit. Like Caesar’s wife, the judiciary must be above all suspicion. That can happen only when selection of judges is wholly transparent system, where the executive had the upper hand, was bad as it led to politicisation of appointments, the present one in which the Chief Justice of India (CJI) makes the choice, based on consultations with senior colleagues in the Supreme Court collegium, is no better.

It suffers from as many, if different, ills as was brought home in the recent controversy over the appointment of Justice P D Dinakaran, who faces corruption charges , to the SC. The problem is not limited to promotion of judges to the SC, but afflicts the selection of judges to the high courts as well. There are no clear parameters for selection , no reasons need be recorded for selection or rejection and, worst of all, there is no redressal mechanism. There is, thus, likely to be a tendency to ‘toe the line’ , to hesitate to give judgements that differ from those given by, say, another senior judge.

Instances like the recent judgement of the Delhi HC where a three-member division bench ruled against the position favoured by the CJI on declaration of assets by Supreme Court judges will increasingly become a thing of the past. That must not be allowed to happen. True, it is impossible to eliminate subjectivity in any selection process. But objective factors should get more play. The present process does not do that, leading to charges, warranted or unwarranted, of favouritism.

This is where we could take a leaf out of the books of the British from whom we draw our legal system. In the UK too, till 2006, judicial appointments were made by the Lord Chancellor and like in India were steeped in secrecy. Over a period of time, as this system came under criticism, radical reforms were brought in by the Constitutional Reforms Act, 2005. The UK now has a Judicial Appointments Commission — ironically with a civil servant of East African Indian origin as chairperson — and the selection of judges is done solely on merit. Like Caesar’s wife, the judiciary must be above all suspicion. That can happen only when selection of judges is wholly transparent.

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