Supreme Court Takes Steps to Make Judges’ Appointment Transparent

Top court tweaks process for judges’ selection in Dec 16 order, will it ensure transparency, asks Rakesh Bhatnagar.

The Supreme Court on December 16 took the first baby steps towards making the process of appointing judges to the apex and high courts transparent within the collegium system, which it had fiercely retained after holding the government’s move for a National Judicial Appointments Commission unconstitutional.

This has been done in response to the public outcry against the clubby and opaque collegium system which was operationalised in 1993 when the Executive was excluded from the power of selecting, appointing and transferring judges of the Supreme Court and high courts.

Though a Constitution bench struck down the NJAC, which Parliament had passed, and accorded itself the power to appoint judges on October 16, it had underscored the need for improving the functioning of the collegium system. The bench decided to secure suggestions from different stakeholders, including Attorney General Mukul Rohatgi, who, however, expressed his inability to formulate appropriate suggestions for infusing transparency in the appointment process, saying it was the judiciary’s prerogative.

‘Challenging Responsibility’

Nevertheless, approximately 11,500 pages of views expressed by different stakeholders reached the Supreme Court for its consideration.

We had a very challenging responsibility to embark upon and reflect, and thereafter, to sieve such of the suggestions as were likely to improve the collegium system.

Supreme Court bench headed by Justice JS Khehar

“Only then would we be in a position to sponsor their introduction into the Memorandum of Procedure (MoP) for the appointment of Judges of the higher judiciary,” the bench headed by Justice JS Khehar said while instructing the Centre to revise the MoP for the appointment of judges.

The MoP would provide for “an appropriate mechanism and procedure” for dealing with complaints against anyone considered for appointment as a judge. It must provide for consideration of “any other matter” relating to ensuring “transparency and accountability”, including interaction with the judges whose names have been recommended by the collegium “without sacrificing” the confidentiality of the appointment process.

While the task seemed to be daunting for judges, they “felt obliged to take up the responsibility as it was, after all, for an improvement of the judicial system and such an opportunity must not be lost.”

Vacancies In the High Judiciary

There are four vacancies of judges in the Supreme Court and at least 430 judges are required in the high courts. These appointments have been delayed since the Supreme Court started hearing lawsuits challenging the 99th constitutional amendment that created a new format for selection and appointment of judges to the apex court and HCs.

What Is Memorandum of Procedure?

• Views of the centre as well as the states to be taken into account by the collegium.
  
• In order to ensure transparency, all details related to appointment to be furnished on the website of Department of Justice.
  
• Provision also made for recording ‘dissenting opinion’ of the judges in collegium.
  
• Setting up a secretariat for each high court and the Supreme Court to streamline duties and responsibilities.
  

Eligibility Criteria

The MoP would indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (at the level of high courts and the Supreme Court) for the appointment of judges after taking into consideration the views of the Centre or the state, as the case may be, from time to time.

Stressing on transparency in the appointment process – a major concern in relation to the entire selection procedure – which is pejoratively described in judicial circles as the prop of “uncle judges”, MoP “ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India.”

It would provide for an appropriate procedure for listing the deliberations, including “recording the dissenting opinion of the judges in the collegiums” while making provision for “the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.”

Separate Secretariats

To put in place better management of the system of appointing judges, the MoP would also provide for setting up a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities.

A judge selected to hold the constitutional position is also required to submit a medical certificate certifying that he is in no manner incompetent to be a judge as far his health parameters are concerned.

A certificate issued by qualified doctor must state that he “cannot discover that he (selected judge) has any disease (communicable or otherwise), constitutional weakness or bodily infirmity, which would disqualify him for employment as a judge of the Supreme Court or high court…”

A Supreme Court judge can be removed under the Constitution only on grounds of proven misconduct or “incapacity” and by an order of the President.

(The writer is a Delhi-based senior journalist.)