Go as far as you can see, and when you get there, you’ll see farther, goes a saying attributed to Thomas Carlyle. The Supreme Court has gone as far as invalidating an attempt to provide a legislated alternative to its own collegium system of judicial appointments. After restoring the judge-made system, it has to necessarily see farther and come up with improvements that will enhance transparency in appointments and provide reasonable eligibility criteria for prospective judges. Having both struck down the Constitution amendment to set up a National Judicial Appointments Commission and admitted to serious shortcomings in the system it has been implementing for over two decades, the court has to take the next logical step of reforming the existing mechanism. It has embarked on a unique process to involve the entire society in the exercise by inviting suggestions from the public. For the first time, the average citizen will be involved in a process hitherto seen as arcane and solely within the domain of the government and the higher judiciary. It may not have been ideal in a democracy for something as important as criteria for appointments to the higher judiciary to be evolved through a court hearing merely after listening to key stakeholders — the government and the legal fraternity. This would have meant nothing more than a process of harmonising courtroom differences and evolving a common scheme. By widening the range of views to include the public at large, the court has made it as close to a democratic exercise as possible.
Public participation may provide a rare opportunity for the government and the judiciary to understand the expectations of the public. It is time for the stakeholders to come together, leaving behind any hint of a conflict between parliamentary sovereignty and judicial primacy. However, the process should not be bogged down by impractical or highly idealistic suggestions, but be one that puts together the best practices of different possible selection mechanisms, and attracts the best available talent drawn from diverse sections of society. What the court has embarked on is indeed an onerous task, combining as it does the responsibility to deliver on its promise to remove acknowledged shortcomings and the duty to have a selection process that will be qualitatively superior. But one question remains. How will the impression that the court is legislating from the Bench be overcome? Is it enough if improved procedures and guidelines are in place for selection of candidates for the superior judiciary? The law laid down by the Supreme Court is binding on all, and may normally not require any other source of authority. However, this issue concerns the judiciary itself. It has arisen only because of widespread dissatisfaction over the appointments process being treated as its internal matter. In this backdrop, it will be wiser if the norms to be laid down are converted into law. The government should offer to bring in legislation in line with the court’s own mechanism.
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