Wednesday, 19 February 2014

The Union cabinet cleared amendments to the Judicial Standards and Accountability Bill, 2012, dropping the contentious clause that barred judges from making “unwarranted comments” against the conduct of any constitutional or statutory authority during the hearing process. This decision was taken in favor of the judiciary.
The Cabinet note states it was decided to remove the provision  since it would be “very difficult to define and determine what comment or observation would be warranted or unwarranted, and may consequently generate unnecessary controversy”. It also argues that it would be “appropriate to abide by the ‘Restatement of Values of Judicial Life’ which represent universally accepted norms, guidelines and conventions reflecting the high values of judicial life, and which has already been adopted by the Judiciary”.
The inclusion of the controversial clause had come against the backdrop of remarks against the Prime Minister and his Cabinet during the hearings of alleged scam cases. In 2011, the Parliamentary Standing Committee had recommended that the Bill have a provision for judges to restrain themselves from making “unwarranted comments on Constitutional functionaries”. Following this, the provision was inserted in the Bill and it is that version of the Bill which was passed by the Lok Sabha.
The Cabinet note also sought to correct the omission of the explanation of “relative” by incorporating it in the schedule of the Bill.
The government earlier accepted the report of the Parliamentary Standing Committee on Law and Justice, which recommended that the structure and functions of the JAC to replace the present collegium system be governed by a constitutional provision. And accordingly, cabinet confers constitutional status to Judicial Appointments Commission (JAC) for appointment and transfer of high judiciary. 
Taking recent developments and keeping the context of judicial accountability, we will talk about the existing system of appointment of Judges of SC & HC in India, compare it with the contemporary system in other countries, and look over various considerations in the proposed bill.

The existing collegium system is described by Justice Krishna Iyer as : "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." Similar argument was made by BR Ambedkar: "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”.

The parliamentary panel itself had said: “The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the collaborative and consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary.”

Obviously, an alternative doesn’t lies in making executive supreme in the judicial appointment. Then what the solution is? There is no best or optimal strategy that could be used without any concern because best practices  come out of a number of trials. Lets take an example of a modern constitutional democracy for the convenience of making comparison-UK. The judges in the higher judiciary in the UK are appointed on the basis of recommendations made by the independent Judicial Appointments Commission(JAC). This Commission has regional representation and is participative in character. Moreover, the procedures are transparent. Judiciary and executive have equal saying without any bias, avoiding kinship.
The JAC is an independent body which is given the task of selecting candidates for judicial office in courts and tribunals. JAC comprises of 15 members out of which except the 3 judicial members, all of them are selected through open competition which ensures fair assessment. Apart from the members from the judiciary profession, there are other eminent persons from the public also.
The process involves the request for vacancy, its advertisement, receiving of applications, shortlisting, candidate selection, panel decision and finally review the progression of the candidates and observation of interviews and results.
 The process might be lengthy and a bit complex, but it ensures accountability and effectiveness. Consultation at each step is mandatory. JAC recommends the final candidates to the appropriate authority after the finalization. Further minimum benchmark has been set for appointment that should be given due importance.

Thus the system guards against the vices of the collegium system. There is even regional representation-one member of JAC is from England and Wales and another is from Northern Ireland. Moreover, atleast one of the representatives should be a layman. Thus this matter is not limited to lawyers and judges. In the due process, there is also mandatory consultation process with senior judges in SC , Chancellors in High Court, First Minister in Wales and First Minister in Scotland. This final report is then sent to the Lord Chancellor who should again consult with the judges and politicians who are already consulted by the Commission. Only thereafter Queen is advised by the Chancellor. This Consultation is different than the concurrence by the judges as it occurs in India after the 2nd Judges' Case(1993) and 3rd Judges Case(1998).

India has also accepted the formation of JAC as evident from the above decision of cabinet. But there are doubts over the composition of the selection committee(comprising of 2 eminent jurists). Before doing further analysis lets have a look at the features of proposed bill:
                                                                    From: The Hindu
This bill provides for the setting up of a JAC by inserting Article 124(A) in the Constitution and amending Articles 124(2), 217(1) and 222(1).

Present Situation
The constitutional amendment bill says there will be a JAC but does not say it will be headed by the CJI or mentions the composition.
The Judicial Appointments Commission Bill defines the establishment of the proposed body to recommend appointment and transfer of judges of the Supreme Court and the high courts.
The JAC Bill seeks to set up a six-member body under the chairmanship of the Chief Justice of India for recommending names to the President of individuals with outstanding legal acumen and impeccable integrity and credibility for judgeship in the Supreme Court and the High Courts.
The structure and functions of the proposed commission are provided in the JAC Bill.

There were demands that the composition as well as the functions of the proposed Judicial Appointments Commission (JAC) should be mentioned in the Constitution as a safeguard against future changes.
While new Article 124 A of the Constitution will define the composition of the JAC, Article 124 B will define its functions.
The committee had recommended that, there should be three eminent persons in the commission, instead of two as provided for in the present Bill, and at least one out of them should be an SC/ST/OBC/woman/minority, preferably by rotation.
Considering the responsibility of the JAC to select 800-odd judges to 24 High Courts, and also the fact that constitutional and other functionaries are involved at the State-level in the process of appointment, it suggested State-level commissions also.

The recent developments by government are laudable. But there are certain loopholes-one of them is whether the composition of the committee to appoint two "eminent jurists", is vulnerable to political intrusion that could jeopardize the independence of the judiciary. We should focus on restructuring the committee by enhancing its democratic character by ensuring fairness. And JAC should be made 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. And when 60 countries have adopted the system of judicial council in some form, we cant stay from the global realm. Need is to get the things to be done as soon as possible. Any further delay will make the institution of judiciary backward and incompatible to the present situation.

Additional things can be considered
As of now, Supreme Court in India is a common man's court, resulting in flooding and pending of cases, delay in justice, and hasty decisions. In sharp contrast to this situation, 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 explosion of cases, as we face.
Obviously we cant implement the same due to limitations of population and other socio-economic factors. But things could definitely be made better. First urgent thing to do is to fill up the vacancies in the judicial system. Despite 1000 fast track courts, 32 million cases are still pending. The apex court had also directed the centre and states to create 10 percent additional posts in the lower judiciary. Need is to implement it as soon as possible in full spirit. Creation of JAC would help a lot. Second thing that can be done is to bring more transparency and openness. Proceedings of cases of public importance or constitutional relevance can be telecast live. Because today a common man is not aware of the decisions of things he is getting affected. In brining transparency, first and foremost step is the selection procedure.

A more efficient and independent judiciary based on an independent Judicial Appointments Commission is necessary to maintain democracy.

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