Justice League


By Sujit Bhar

The judicial appointments process in India has recently come in for some scathing criticism from Union Law Minister Kiren Rijiju and others in government. The government thinks the Indian Supreme Court’s collegium system is opaque and not fair. The allegations seem to overlook the obvious fact that the government itself has remained opaque on its reservations, and when the top court makes public observations on candidates as made by government investigative agencies, all hell breaks loose.

The issue is also about the separation of powers that the makers of the Constitution had so carefully arranged, so that the executive cannot exert undue influence on the judicial system. And then, there is the issue of the basic structure of the Constitution.

In the end, possibly, the Constitution itself might be up for partisan scrutiny, leaving pretty much nothing sacred, nothing autonomous, nothing beyond the whims of an elected government.

Position in the world

What has happened within this toxic atmosphere is that the Indian justice system’s position in the world has dipped badly. The World Justice Project’s original research and data, grounded in the World Justice Project Rule of Law Index, measures how the rule of law is experienced and perceived worldwide based on household and expert surveys in 140 countries and jurisdictions. Views of policy makers, civil society organizations, academics, the media, citizens, businesses and legal professionals and others are taken into consideration.

In the Overall Index score, No. 1 is Denmark, while India is at No. 77. Within this overall index, when Constraints on Government Powers is considered, Denmark is again at No. 1, while India is at 52. Even in the field of the protection of Fundamental Rights, India is a low 94, with even Brazil, Niger, Mexico and Malaysia ahead.

The rest of the world

Within India’s smouldering cauldron, it becomes imperative to take a step back and observe the justice systems of other major nations and how they select their judges, or how they promote them. The European countries, especially Denmark and Finland, rate very high, but these nations are too small and homogenous in nature to consider here.

Let us take into consideration the US, the second largest democracy; the UK, one of the oldest and which gave us the common law system based on recorded judicial precedents, etc. For contrast, one may also be inclined to talk about the justice system in today’s China.

The US system

The US system is possibly most complex, often controversial, as well as one of the most admired among all major democracies.

There are about five ways in which a judge can be appointed in the US. Moreover, with the states having more power within the federal system of the country than states in India, there is a lot of freedom to change the selection/appointment method.

The five methods are as follows:

  • Through partisan elections: In this, like in general elections, judges are elected by the people. Candidates are listed on the ballot alongside a label designating political party affiliation. How this really helps in a judge’s non-partisan approach to the judicial system is not clear.
  • Through nonpartisan elections: The process is the same as above, except that when the people vote, they do not get to see the political affiliation of the candidates, because the ballots do not have any label designating party affiliation.
  • Through legislative elections: This is a complete act of the executive, in which judges are selected by the state legislature.
  • Through gubernatorial appointment: In this case the judges are appointed by the governor, with, only in some cases, approval from the legislative body being mandatory.
  • Through assisted appointment: This method, also known as merit selection or the Missouri Plan, is a bit more complicated. In this, a nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list. That is just a temporary appointment. After serving an initial term, the judge must be confirmed by the people in a yes-no retention election to remain on the court. This gets even more complicated at the state supreme court level, where the commissions differ. There are governor-controlled commissions, bar-controlled commissions and hybrid commissions.

The states have the independence of choosing judges using all or any of the above methods. States sometimes also modify any of these systems in their own way.

The US Supreme Court has a slightly different system. The President of the US nominates someone for a vacancy in the court and the Senate votes to confirm the nominee, which requires a simple majority.

Conclusion: While these seem pretty much executive and legislature-driven selection modes, with elected representatives having a major say in how judges are appointed, there are two important characteristics that make US judges somewhat imperious of political play and why they are admired.

The first is that judges in the US are appointed for life term. They can be impeached and they can choose to retire, but they hold their jobs for life. Unlike in India, where judges are often offered lucrative positions post retirement, US judges do not need to worry about a post-retirement life.

The second issue is that despite being chosen through a system that has major executive influence, judges generally assume neutrality on almost all issues post appointment. There, obviously, have been and remain shameful exceptions, but in general most judges are strict about upholding the dignity of office. The executive appointment seems to end at appointment.

In India, the government has always tried to meddle with the judiciary and any laxity on the part of the judiciary will open the floodgates to complete government control, a la China. Also, since the retirement age of judges is 65 (in the Supreme Court) when judges have just reached peak performance levels, the entire judicial system loses an experienced brain in his/her retirement. 

In the UK

Judges to the Supreme Court of the United Kingdom are appointed by the King on the advice of the prime minister, who receives recommendations from the selection commission. This procedure is governed by Sections 25 to 31 and Schedule 8 of the Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013.

There are statutory eligibility standards and it is the responsibility of the Lord Chancellor to convene a selection commission, usually done through a letter to the president of the court who chairs the selection commission. The president also nominates a senior judge from anywhere in the UK, except at the Supreme Court. In addition, there is a member of each of the Judicial Appointments Commission (JAC) for England and Wales, the Judicial Appointments Board in Scotland, and the JAC in Northern Ireland.

Up to and including the High Courts, the JAC makes recommendations for the appointments of judges. The JAC is an executive non-departmental public body, sponsored by the Ministry of Justice. The JAC does not select magistrates or judicial office-holders for the UK Supreme Court, but, as said before, the chairman of the JAC sits on the selection panel.

The composition of the JAC is interesting. This includes members from a “wide background to ensure the Commission has a breadth of knowledge, expertise and independence,” says the JAC website.

The chairman of the commission is a lay member. There are 14 other commissioners:

  • Six must be judicial members (including two tribunal judges)
  • Two must be professional members (each of which must hold a qualification listed below, but must not hold the same qualification as each other)
  • Five must be lay members
  • One must be a non-legally qualified judicial member

The legal qualifications are: Barrister in England and Wales; Solicitor of the Senior Courts of England and Wales; Fellow of the Chartered Institute of Legal Executives.

Conclusion: The inclusion of lay members in selecting judges either to the Supreme Court and/or the High Courts opens up the commission to healthy debate. There is, of course, enough legislative and executive influence involved, but when the base is strong, rebuttals can be accepted in the right spirit of the procedure.

The German system

According to the International Journal for Court Administration, Germany, which has career justices, “is often criticized for its lack of self-administration of the judiciary... because judges are, as a rule, appointed by the government—even if at times a parliamentary committee is involved in selecting candidates.” The silver lining is that “career decisions are subject to tight judicial review.” Also, vacancies are advertised, and those interested may apply, somewhat like in certain cases in the UK.

The judges’ recruitment procedure is initially the same as appointment to any public office. The rules are laid down in Article 33 of the German constitution. Positions for higher judicial office are made public by position advertisements in official gazettes. Applications are evaluated by their respective presidents who then reports to the president of the higher regional court who, in turn, will add their own evaluation, then report to the Ministry of Justice. The ministry determines who is best qualified for the position, says the Journal. That is communicated to the relevant presidential council, which is a professional body of judges elected by their peers. That sounds familiar.

The controversial thing is that presidential councils mostly serve only in an advisory function, though justice ministers are reluctant to overrule their vote.

Conclusion: As said, there is little separation of powers visible, and in controversial cases the ministry rules.

The ICC

The 18 judges of the International Criminal Court (ICC) are elected for terms of office of nine years by the Assembly of States Parties (ASP) to the Rome Statute, the founding instrument of the Court.

Nominations (one each) are made by State Parties and are elected by secret ballot at a meeting of the ASP convened for that purpose.

Conclusion: Looks democratic enough at the ICC level, except that the State Parties exercise a lot of executive and legislative heft in selecting its candidates.

The ICJ

The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously, but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. This sometimes makes it necessary for a number of rounds of voting to be held.

Conclusion: This is primarily a decision of the executive and/or legislatures of the respective countries.

European Union

The European Commission for Democracy Through Law (Venice Commission) Judicial Appointments Report, adopted by the Venice Commission at its 70th Plenary Session in March 2007, as a contribution to the elaboration of opinion No. 10 of the Consultative Council of European Judges (CCJE) on structure and role of judicial councils, made a significant observation.

It said: “Political involvement in the appointment procedure is endangering the neutrality of the judiciary... International standards in this respect are more in favour of the extensive depolitisation of the process. However, no single non-political ‘model’ of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary.”

Conclusion: Ratings show that European countries, such as Denmark and Finland constantly top rankings. But procedures in these small, homogenous nations cannot reflect or compare with the immense complexities of nations as diverse and as populated as India or even the US.

In China

The People’s Republic of China is an example of a justice system that should never come into democratic processes. The Communist Party of China has been put in such a supreme position that any institution of the state has to report to it.

There are a variety of internal and external controls that significantly limit the judiciary’s ability to engage in independent decision making.

A panel of judges decides most cases in China, with one member of the panel presiding at trial. There, supposedly, have been some recent ‘reforms’ aimed at independence of the judges, but things have not changed, and judges in lower courts frequently seek the opinions of higher courts before making decisions on cases before them. That undermines the right to appeal.

And it is an accepted fact that local governments have and exert undue influence on judicial decision making. Local governments control local judicial salaries and court finances and also make judicial appointments.

OBSERVATION

There seems to be few judicial appointment procedures in the world that are completely bereft of the overarching presence of either the executive or the legislature, or both. Judicial appointments have been historically influenced, but it has always been up to the judges to use the constitutional powers vested in him/her to assert his/her independence and to uphold the rule of law, within an atmosphere of obvious external influences.

—The author writes on legal, economic and corporate issues, apart from social commentary. He is Executive Editor at India Legal