Justice in judicial appointments

A more independent judiciary based on an equally independent Judicial Appointments Commission is a categorical imperative for democratic praxis in India

With a proactive role based on the power of judicial review, the higher judiciary in India has attained an unprecedented significance. However, in the areas of judicial management and appointments, there is little scope for euphoria. In selecting judges for the constitutional courts, the collegium system has exposed itself. In the words of Justice Krishna Iyer: “There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.”

Dr. B.R. Ambedkar warned against the system of judges selecting judges by saying that “to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day”. However, no sane criticism of the collegium system would advocate for restoration of political supremacy in judicial appointment. The country is presently seriously debating on the issue and attempting legislation.

My recent visit to the U.K. Supreme Court reminded me of the progress that a modern constitutional democracy has made in judicial management in general and appointments of judges in particular. India cannot afford to ignore the quality of the British judiciary in the ongoing efforts to bring radical changes, especially because we have adopted the Anglo-Saxon system.

The judges in the higher judiciary in the U.K. are appointed on the basis of recommendations made by the independent Judicial Appointments Commission (JAC). Regional representation in appointments is ensured. The Judicial Commission has a representative and participative character. The procedures are transparent. There is no predominance either of the judiciary or of the executive. There is no ‘collegium syndrome’, much less any ‘kin syndrome’. Nor is there any political highhandedness.

The JAC is an independent body which is given the task of selecting candidates for judicial offices in courts and tribunals in England, Wales and also tribunals which have jurisdiction over Scotland and Northern Ireland. There is fair and open competition which ensures assessment of inter se merit. The process is lengthy and complex. However, it is more effective and accountable.

The Constitutional Reform Act (CRA) 2005 was recently amended by the Judicial Appointments Regulations, 2013. There are 15 members in the JAC including the Chairman. All of them, except the three judicial members are selected through open competition. Apart from the members from judiciary and legal profession, there are also judicial officers who are not legally qualified and also eminent persons from the public.

There is a well-designed and systematic selection process for induction of Judges at all tribunals and courts including the High Court. It involves the request for vacancy position, advertisement, receipt of applications, shortlisting, references, candidate selection, panel decision, statutory consultation, checks, decisions on selection, submission of report to the Lord Chancellor and finally the procedure for quality assurance which includes review of the progression of the candidates and observation of the interviews and test results.

The statutory consultation is a mandatory requirement as per the CRA. It is an integral part of the selection process. After the finalisation of selection, the JAC recommends the name of the candidate to the appropriate authority. JAC thus selects the Lord Chief Justice, Heads of Division and the Lord Justice of Appeal.

Selection to Supreme Court

However, the JAC on its own cannot select justices for the U.K. Supreme Court. It is governed by Sections 25 to 31 and Schedule 8 of the Constitutional Reforms Act 2005 as amended. Sections 50 to 52 of the amended Act say about the minimum benchmark for appointment as justices of the Supreme Court. Experience at the bar is given due importance. The Lord Chancellor should constitute the Selection Commission by addressing a letter to the president of the Court who chairs the Commission. The president should also nominate a senior judge in the U.K., who should not be, however, a Justice of the Supreme Court.

Thus the system in the U.K. inherently guards against the vices of the collegium system. There is a member of JAC from England and Wales, Judicial Appointments Board (JAB) in Scotland and JAC in Northern Ireland. Again, and significantly, at least one of the representatives of such a commission should be a layman. Thus the judicial appointment is no more a matter concerning only lawyers or judges. It is meant for the public, for there is no republic without the public.

In the process of appointment to the U.K. Supreme Court also there is a mandatory consultation process with a group that includes senior judges in the Supreme Court to the Chancellors of the High Court and the President of the Family Division. Likewise, there should be consultation with the Lord Chancellor, the First Minister in Scotland, the First Minister in Wales and the Secretary of State for Northern Ireland. Thus regional representation is ensured.

The report should be finally submitted to the Lord Chancellor who should again consult with the judges and politicians who are already consulted by the Commission. Only thereafter the Lord Chancellor can recommend the name of the candidate to the Prime Minister who in turn should advice the Queen to issue formal orders of appointment. Consultation in the U.K. does not mean concurrence by the judges as it occurs in India after the Supreme Court judgments in 2nd Judges’ case (1993) and the 3rd Judges’ case (1998). And it makes a very big difference.

India has now accepted the need for a Judicial Appointments Commission in principle as evident from the cabinet decision on August 23, 2013 that was followed by introduction of a Bill in that direction. But whether the composition of the Committee, with two “eminent jurists”, is vulnerable to political intrusion that could jeopardise the independence of the judiciary, is a fundamental question being widely asked.

We should restructure the committee by enhancing its democratic character and by ensuring procedural fairness. We cannot, however ignore the global trend in the realm of judicial appointments which is more towards independent commissions. The United States Institute of Peace has published a ‘Report on judicial appointments and judicial independence’.

It says that judicial council “promises to be a happy medium” between the extremes where neither the judges nor the political heads have the final say. A duly constituted commission is capable of reconciling the need for independence with accountability. About 60 per cent of the countries have adopted the system of judicial council in some form, according to the said report.

Screening of cases

In sharp contrast to the Indian situation, there are days when no cases are listed at all in the U.K. Supreme Court. Appeal is not a matter of routine. Nor it is a matter of right. Leave to appeal is not automatic. Only when there is a substantial legal or constitutional issue, the Supreme Court entertains the appeal. As such there is no docket explosion, as we face.

However, the situations are incomparable in terms of population and other socio-economic factors. Therefore, the Indian Supreme Court cannot probably emulate the British path in this respect. Our Supreme Court, on the other hand, needs to be a common man’s court, and there should be easy access to the system for the ordinary citizen as visualised by the framers of the Indian Constitution.

Incidentally, one may see that the judges of the U..K Supreme Court do not wear official robes during court proceedings. Lawyers also could dispense with official robes on mutual consent. Proceedings of cases of public importance or constitutional relevance are telecast live. As such there is little scope for media trial. These are all small but significant instances which reflect institutional democracy and transparency. The openness of the system is ensured in all facets of judicial process, starting from the selection. Presently there are twelve Justices in the U.K. Supreme Court. Lord Neuberger is the president and Lady Hale is the deputy president in the bench.

John Rawls rightly said that justice is fairness. The Supreme Court of the U.K. simply demonstrates it. A more independent judiciary based on an equally independent Judicial Appointments Commission is a categorical imperative for democratic praxis in India.