1. As long as the process of judicial appointments remains opaque, selection of judges on considerations other than merit will continue
2. Too many vacancies in the High courts in India
As of June 2013, there were 276 vacancies out of a total sanctioned strength of 904 permanent and additional judges in all the High Courts of India. With almost a third of the vacancies to be filled,
3. Canvassing for other criteria rather than meritocracy
most States are witnessing major canvassing on caste, community, political and other considerations for appointment as judges.
Collegium experiment (Who appoints, How appointed, and also from whom they should be appointed)
I. The government proposes to come up with a Bill for the appointment of judges to the higher judiciary replacing the current collegium system.
1. The political executive is of the view that the collegium system hasn’t worked well; hence a Judicial Appointment Commission, in which the executive will have a say in the appointment of judges, is necessary to achieve the objective of appointing the best people as judges in a transparent fashion.
2.There is growing evidence that the current system of judicial appointments has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges.
3. Protests over judicial appointments have been seen in Punjab and Haryana High Court, Madras High court over judicial appointments
II. Another issue: Today the greatest concern is the secrecy shrouding the appointments. The real issue is not who appoints judges but how they are appointed. Irrespective of whether it is the executive, the judiciary or a Judicial Commission that appoints judges, as long as the process is opaque and appointments are made on personal considerations, we will have variations of the same problem of favoritism, nepotism and appointments on criteria other than merit and capability.
III. Another issue- While “who” should appoint judges can be debated endlessly, the need is to broaden the debate on the appointment of judges by focusing on other relevant issues like having jurists as judges of the Supreme Court. There has never been much debate on this issue.
1. Article 124 (3) of the Constitution, broadly, provides for three categories of persons who are “eligible” to be appointed to the Supreme Court — a High Court judge with five years experience; an advocate in the High Court with 10 years experience; a “distinguished jurist.”
2. A “distinguished jurist” refers to academic lawyers or law professors: people who have challenged and expanded the existing frontiers of legal knowledge through cutting edge research and teaching.
3. This requires a certain ability to theorise and conceptualise. Law professors are academically trained to theorise and conceptualise. Industrious law professors improve upon this training, through years of painstaking research and teaching in their specialised domains, often employing empirical and interdisciplinary tools. These well developed and nuanced theorising and conceptualising abilities have the potential of raising the bar of legal reasoning up by several notches.
4. Regrettably, 63 long years after the Constitution was adopted, both the judiciary and the executive have consistently ignored this clear constitutional mandate. In the history of the Indian Republic, never ever has a “distinguished jurist,” i.e. a law professor, been appointed as a judge of the Supreme Court, although India has produced some outstanding law professors worthy of the “distinguished jurist” tag. In last 63 years, all appointments to the Court have been made from the first “eligible” category i.e. High Court judges, barring four instances, where practising lawyers (the second category) were directly appointed as Supreme Court judges
1. The crucial need , therefore, is to evolve objective criteria to assess a candidate and make appointments on the basis of assessments against such stated criteria.
2. We may usefully refer to the system adopted by the Judicial Appointments Commission in the United Kingdom to assess candidates.
1. Only some cases can be put for repeal in higher courts
2 Time alloted for oral argument (30 minutes in USA)
3. Conduct legal audit- why cases took so long
4. Repeal archaic laws
The JAC assesses candidates against five merit criteria:
1. Intellectual capacity: Nominated candidates ought to demonstrate (a) a high level of expertise in chosen areas or profession with the (b) ability to quickly absorb and analyse information. They should have (c) appropriate knowledge of the law and its underlying principles or the ability to acquire this knowledge where necessary.
2. Personal qualities: ranging from (a) integrity and independence of mind, (b) sound judgment, (c) decisiveness, (d) objectivity, (e) ability and willingness to learn and develop professionally and (f) ability to work constructively with others.
3. An ability to understand and deal fairly: This includes (a) the ability to treat everyone with respect and sensitivity whatever their background and (b) willingness to listen with patience and courtesy.
4. Authority and communication skills: The nominated person is expected to have (a) the ability to explain the procedure and any decisions reached clearly and succinctly to all those involved with the further (b) ability to inspire respect and confidence and (c) maintain authority when challenged.
5. Efficiency: The ability to work at speed and under pressure and the ability to organise time effectively and produce clear reasoned judgments expeditiously.
The ‘public’ senate hearings for appointments of judges to superior courts in the U.S. are another example of transparency. We may not find the U.S. system implementable as it is; but nothing prevents us from incorporating the key principles of transparency, accountability and citizen participation underlying the U.S. system for selection of judges.