Sshhh... It’s a secret bill

The collegium system fabricated by the Supreme Court through a judicial decision for appointment of judges to the higher judiciary has been operational since 1993. The near unanimous view of the legal fraternity is that the contraption, whereby appointment and the transfer of judges are decided by a forum of the Chief Justice of India and the four seniormost judges of the Supreme Court, has failed in selecting right kind of people to high judicial offices.

Outsiders complain that the system lacks transparency — no one except the five justices involved know why someone has been chosen to be a Supreme Court or a high court judge and why someone else has been rejected.
The Judicial Appointments Commission Bill, reportedly finalised by Kapil Sibal, the Union law minister, and approved by the government is intended to replace the collegium. Presently, like the collegium’s business, the bill is also a mystery. The little that is known about it is only through an official note handed out to the media.
Mr Sibal’s impressive-looking commission seems just a means to dislodge the collegium; hence its composition is only of cosmetic value, not of substance. The real design, one fears, is to restore the power of appointment to the executive, a hark back to the days when political patronage prevailed. The clue that points to this motive is having the law secretary as the convener of the commission. The bill gives no place for the Leader of the Opposition in the main commission — it only gives him a voice in the matter of selection of two eminent persons from the public. Maybe, this omission is deliberate — a red herring — only to be yielded at the appropriate time as a bargain.
The convener would, naturally, initiate the process of appointment to the higher judiciary. He would place some names on the table of this august body consisting of three Supreme Court judges — there appears to be no requirement of the senior-most judges but the Chief Justice and any two judges, a representative of the Prime Minister and two “eminent personalities” who need not be jurists or lawyers.
The commission collectively has the unenviable power only to approve or reject either a Tweedledum or a Tweedledee shortlisted by the law secretary, i.e. by the government.
In the absence of an opportunity to look at the bill, one is justified in being cynical about the whole exercise. The well-meaning public wants neither the faulty collegium to continue nor do they want a restoration of the rejected executive system of the past — they cry for a neutral body with power and means to select good judges, and to
keep a vigil over the judiciary.
The Constitution has to be amended to create this high-powered body and, in effect, to nullify a 1992 judgment of a nine-judge bench of the Supreme Court. In that context it may be worth examining whether to confer on that body some more powers, like placing a judge under suspension. At present no authority has the power to suspend a high court or a Supreme Court judge, even if s/he is caught accepting bribe red-handed. The only remedy is to move Parliament for the recommendation to remove the judge, a long-drawn process which, has proven to be ineffective. Transferring tainted judges to another high court makes no sense. While amending the Constitution, it would be prudent to confer upon the commission — better to name it as a National Judicial Commission — the authority to exercise powers under the Judges (Inquiry) Act, like recommending the removal of judges, thus avoiding multiplicity of bodies.
It has also been found necessary during the last 60 odd years of our Republic that a high-ranking body should be empowered to call for explanation from an erring judge and for provision of “in-camera” proceedings in cases involving judges. Many of the ills of the judiciary sought to be regulated through new measures, like the Judicial Standards and Accountability Bill, could be referred to a body like the National Judicial Commission with the power to delegate as prescribed by rules.
It is necessary for such a commission to have a permanent secretariat insulated from the executive, and high-ranking officers with proven expertise in management technique for identifying good candidates for appointment well in advance of vacancies and to keep a talent bank from which the commission would pick names for consideration and appointment.
One of the reforms that a previous law minister, Veerappa Moily, wanted to bring in but could not was raising the retirement age of high court judges (presently 62) to the level of that of a Supreme Court judge — presently 65 — or of both to 70. The purpose of this amendment was to protect their independence. At present, high court judges try to attract the attention of the collegium members of the Supreme Court to secure three years of extra service. If the retirement age is the same, many of the judges of the high court may not be anxious to occupy a chair in the Supreme Court. This would also help the chief justices of the high courts to have a long enough tenure which, at present, is mostly a few months.
A long-felt lacuna has been that the independence of the judges of the higher judiciary is eroded on account of temptation of post-retirement offices. With the raising of the age of retirement, there must be a total ban on retired judges being re-employed. Tribunals, which are to be manned presently by retired judges, should hereafter be open only to sitting judges. Our judiciary needs a comprehensive, systemic treatment starting with the establishment of the All-India Judicial Service.
It is a matter of common knowledge that carrying out constitutional amendments is difficult on account of the composition of our Parliament. However, presenting a wholesome set of amendments relating to the judiciary may facilitate achieving the elusive consensus.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India

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