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Appointment of judges: Let’s be transparent

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India could take a leaf out of the UK in appointing judges, where the system is transparent. One can simply apply to be a tribunal judge or magistrate and see the progression on a spreadsheet.

By Shaan Katari Libby

A judge is defined as “a public officer appointed to decide cases in a law court”. A modest, succinct definition. Ever since man created books of statutes, there have been judges to interpret them in the adversarial system of law that we have in most parts of the world.

The role of a judge is crucial as he not only decides the fate of the case at hand, but sets a precedent for future cases of this nature. There are judges that will be quoted till kingdom come, such as Lord Tom Denning who truly lived by his words:

“If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

An essential component of any functioning democracy is Montesquieu’s Doctrine of Separation of Powers: the division of the legislative, executive and judicial functions of the government. Such a separation is in order to limit the possibility of arbitrary excesses by the government, since the sanction of all three branches is required for the making, executing and administering of laws. This is a truly noble concept and in an ideal world, it would work beautifully. How a judge is selected, appointed and eventually treated is a matter of much discussion the world over. The question is whether there can ever be a true separation or something close to it.

To begin with, let us take the UK from where India developed its legal system. The UK used to have the Lord Chancellor (a political appointee) at the helm of decision-making. This was changed by the Constitutional Reform Act of 2005; now a Judicial Appointments Commission (JAC) selects over 500 people each year for appointment to judicial posts across the UK. The process is clear and transparent as set out on their website, emails and Twitter. The Lord Chancellor has a much reduced role now in the appointment of judges he must consult senior politicians and senior judges before accepting, rejecting or asking for reconsideration of the names put forward by the JAC.

The JAC consists of 15 members, including six lay ones, five judges, one barrister, one solicitor, one magistrate and one tribunal member. Appointment of judges is solely on merit and a consultation with the chief justice or his equivalent is required. When assessing merit, the following factors are considered: intellectual ability, integrity, independence, objectivity, decisiveness, willingness to learn, ability to be fair, authority, efficiency and communication skills. A good character is essential, and as was illustrated by the unfortunate case of R (Graham Stuart Jones) v Judicial Appointments Commission (2014), even points on a driving licence could and would lose you a potential judgeship.

For even inferior courts (circuit judges, recorders, district judges, tribunal judges), one needs to have been a lawyer with a minimum experience of five years. There is no “career” judiciary. The retirement age is 70 years, although the Lord Chancellor has the discretion to authorise a retired senior judge to sit part-time until the age of 75. A judge cannot be dismissed by the government of the day even if he annoys them greatly with his decisions.

Switching now to India. We have a system of appointment of judges by a collegium that has evolved over a series of judgments (called “Judges Cases”) rather than via an Act. This comprises the Chief Justice and four senior most judges. The same system prevails in the Supreme Court and in High Courts. This has come under some criticism as it is essentially judges choosing from amongst those they know and deciding who should become one of them. 

An attempt was made in 2014 to reform it and create a National Judicial Appointments Commission (NJAC)—named like the British one, but quite different in nature, comprising of only six members, not 15, and giving the government more power in the appointment of judges. The NJAC was to comprise the Chief Justice of India (CJI), two senior most judges, the law minister and an eminent person from the public chosen by the president in consultation with the CJI. This Bill was swiftly ratified, but fell through after the Supreme Court struck it down in 2015, restoring primary power to the judges. 

The way it works till today is that names are recommended for appointment by a High Court/Supreme Court collegium. This reaches the government and the latter may seek clarifications or raise objections, but if the same name is sent back by the collegium, the government has no choice but to appoint that person as a judge. This is, in fact, more akin to the British system. The main and continuing criticism is that the whole process is opaque. Nobody knows what weightage is given to what criteria nor can one fill out an application to be a High Court or Supreme Court judge. One just has to hope or put the word out—which is an unsatisfactory method and inefficient.

Unlike the UK where there is no career judiciary as such, we do have a Judicial Services Examination in India for the subordinate judiciary. This means that a fresh graduate can become a career judge from the start, without any years of practice. This has its pros and cons, but for a fresh graduate who is completely unbiased, it is probably a good place to start if one wants to be a fair, neutral judge. 

While technically one needs ten years of litigation experience in an Indian High Court to be eligible to be a High Court judge, one has seen many a good lawyer/senior advocate who had hoped to be one simply being passed over. This system is self-perpetuating and should be changed to a more transparent one. Those who did not make the cut should be given some reasons. People should be able to apply again after a certain interval. This secretive method of appointments is very different from the UK, where for instance, one can go to www.judiciary.uk and apply to be a tribunal judge or recorder/magistrate and there is a spreadsheet one can download to see the progression all the way up to the UK Supreme Court. UK’s separation of powers is so strong that Prime Minister Boris Johnson was ruled against in no uncertain terms for having prorogued Parliament in 2019.

The unanimous succinct judgement by all British Justices is unlike anything one would see in the US, where judges are essentially political appointees with no date of retirement. India’s High Court judges retire very early at 62 years, and Supreme Court judges at 65. In the UK, judges retire at 70 and 75 respectively, and in the US, they have no age of retirement. However, with the death of US Supreme Court Justice Ruth Bader Ginsburg—a Bill Clinton appointee—on September 18, 2020, due to cancer, there is concern over whether US President Donald Trump will put a Republican there. This would impact judgements for years to come. 

In short, the American system is the other end of the spectrum. If the UK is at the end of merit and maximum disengagement from the executive, India is somewhere in between as the system is opaque and judges are made to retire young. Subsequently, roles like head of inquiries or plum postings can be provided only by the government. The US is at other end of the spectrum as the president selects a judge that has political views closest to his own and who has espoused these clearly. This selection then goes to the Senate.  

 Former Attorney General Soli Sorabjee told a magazine when Justice KM Joseph’s elevation to the Supreme Court was held back by the Government: “The government only has a voice, not a veto as far as appointments of judges are concerned….if the collegium, after considering the point of view of the government, still wants to maintain that a certain judge should be elevated, then it is binding on the government.” In this instance, the judge had quashed an imposition of President’s Rule in Uttarakhand. This level of separation of powers was presumably not looked upon kindly and his name was questioned on the basis of seniority. There were signature campaigns in the Supreme Court and the collegium returned Justice Joseph’s name to the government. This time, the government had to clear it and he was elevated to the Supreme Court. 

The system here “ain’t broke”, but even so, we need to fix it by giving it transparency.

—The author is a barrister-at-law (Honourable Society of Lincoln’s Inn, UK) and a leading advocate in Chennai. With research inputs by Tarun M

Lead Picture: supremecourt.uk

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