The question of judicial reforms in judicial appointments has provoked a wide ranging debate both within and outside the judiciary. Representation, merit and selection process are all key aspects in the making of a robust judiciary. Yet, often, issues like retirement age and selection of Chief Justice ar overlooked in the focus of the debate on collegium system. Justice Yatindra Singh, former Chief Justice of Chhattisgarh High Court, gives a holistic view of the reforms required in our judicial appointments system.
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EVERY change of guard rekindles hope for the judiciary, but, so far, the track record has been disappointing. Judicial reforms are need of the hour.
Ptolemy I Soter, was the first king of Egypt after the death of Alexander the Great. He had sponsored Euclid to learn about his seminal work, 'The Elements'. But found it too difficult. He asked Euclid to show him an easier way to master it. Euclid answered, "Sir, there is no royal road to geometry." Like Euclid's answer, there is no royal road; there are no short cuts.
We have to take long term measures. Here are some suggestions:
The retirement age for the Supreme Court judges is 65 years; whereas, initially, for the High Court judges, it was 60 years. It was increased to 62 years, by the Constitution (Fifteenth Amendment) Act 1963.
“Post-retirement appointments are a deterrent to an independent judiciary.
The first Law commission submitted many reports. Its 14th report is about 'Reforms of the Judicial Administration'. It is in two volumes. Chapters 5 & 6 of volume-I deal with the Supreme Court and High Court respectively. They also consider their retirement age. The Law Commission does not recommend an increase in the retirement age of the Supreme Court judges but does it for the High Court judges.
The report mentions the reason for the difference of retirement age between the High Court and Supreme Court judge (so that they may not refuse judgeship of the Supreme Court). It considers the bad practices that have crept in, because of different retirement ages and recommends that the retirement age of the High Court judges should be increased to 65 years just like the retirement age of Supreme Court judges.
The age difference acts as a carrot and is exploited by the executive as well as some judges of the Supreme Court. They get wrong or sub-standard advocates recommended for the High Court judgeship, or get favours done, or get favourable orders. Those, who don't succumb, are left to suffer; to retire earlier as a High Court judge.
“The age difference acts as a carrot and is exploited by the executive as well as some judges of the Supreme Court.
There are many instances of brilliant judges being ignored and not so worthy elevated. Some have recorded injustice and the others have ignored and gone ahead with their lives. But the judiciary was a loser. The sooner, this difference is abolished, the better will it be for the judiciary.
The first Law Commission also recommends that after retirement, there should not be any employment under the government—except, as the ad-hoc judges, so provided in the Constitution. Despite this, appointments galore in tribunals and over other administrative posts.
If due to age, a person is not suitable to continue as a judge, then it is not understandable, how is he suitable for another post. In case, due to longer life expectancy, a judge can remain mentally active for a longer period, then the retirement age should be increased; rather than making post-retirement appointments that is nothing but a quid pro quo or reciprocal exchange of favours.
“If due to age, a person is not suitable to continue as a judge, then it is not understandable, how is he suitable for another post.
Post-retirement appointments are a deterrent to an independent judiciary. They should be stopped. We have sufficient in our country to fill up the posts by fresh appointments. There is no justification to leave the judges to compete for post-retirement assignments.
Banning post-retirement appointments will require amendments in some enactments but this can not be an excuse. Firstly, such a law ought not to have been enacted. Secondly, they can, and should be amended.
The Supreme Court and High Court judges are appointed by the President. District Judge level judges {Higher Judicial Service (HJS)} are appointed by the Governor in consultation with the High Court (Article 233 of the Constitution). The remaining, namely State Judicial Service (SJS) judges, are appointed by the Governor in accordance with the rules framed in consultation with the High Court and the State Public Service Commission (SPSC) (Article 234 of the Constitution).
The first Law Commission recommended (14th Report, Volume-I, Chapter-9 in Paragraphs 10,12,15, and 59) for the establishment of an All-India service to be known as Indian Judicial Service (IJS) for HJS. In pursuance of this recommendation, Article 312 and Schedule-VII of the Constitution were amended by the Constitution (Forty-second Amendment) Act 1976.
“The resolution to establish IJS in the High Courts is bound to fail, unless, the Chief Justice pushes it and he seldom does as he does not want to antagonise brother judges.
The Supreme Court also issued a direction to establish IJS in All India Judges' Association Vs Union of India . Conferences of the Chief Justices have repeatedly passed resolutions for establishing IJS. However, except for dilly-dallying, nothing has been done.
Under the amended provision (Article 312 of the Constitution), the only requirement is that Rajya Sabha should pass a resolution by two-third members present and voting. This empowers the Parliament to enact a law to establish IJS. Under the Constitution, there is no necessity of obtaining consent or the views of the Judiciary. Yet, on the pretext of obtaining views and consent of the Judiciary, IJS is being unnecessarily postponed.
At present, broadly, the SPSCs along with the High Courts are selecting judges for SJS; whereas, High Courts are exclusively selecting for the HJS. Most of the High Courts are refusing to concede power to make appointments in the HJS. To the best of my information, only Chhattisgarh High Court had passed a resolution for creating IJS, when I was the Chief Justice there. In Allahabad, it failed.
“The High Courts are not realising the harm that they are causing: IJS will not only attract better talent but it is a must.
The resolution to establish IJS in the High Courts is bound to fail, unless, the Chief Justice pushes it and he seldom does as he does not want to antagonise brother judges. The High Courts are not realising the harm that they are causing: IJS will not only attract better talent but it is a must.
I had occasion to be part of one SJS selection; three HJS selection; and was a member of the bench that decided a WP, where the selection of SJS was challenged. The selection challenged, was exclusively done by the Chhattisgarh High Court (Centre for Public Interest Litigation Vs High Court of Chhattisgarh 2013 SCC OnLine Chh 125). My experience is that the judges are experts in deciding cases and resolving disputes. They may act as an expert of law in a selection committee but are not expert in conducting examinations or making selections. The Judiciary should stick to its expertise and leave the selection to the expert body like the Public Service Commission.
The government will be well advised to establish IJS after getting necessary resolution passed from Rajya Sabha. It should not wait for the views and consent of the judiciary: because it is not likely to materialize.
“In appointing a Chief Justice merit, rather than seniority, should be the criteria. He should have administrative and leadership qualities. This is also recommended by the Law Commission.
Apart from other qualities, a judge should be judicially competent. And a Chief Justice, apart from being a competent judge, should have administrative qualities: he should be a person, who can lead the court. Unfortunately, all judges (although competent) may not have the administrative ability or may not be leaders. In appointing a Chief Justice merit, rather than seniority, should be the criteria. He should have administrative and leadership qualities. This is also recommended by the Law Commission.
Among the all Law Commissions, the first one was most eminent. It made profound recommendations. Yet, without any justifiable reasons, its recommendations for the first four points are ignored.
The Collegium System has no constitutional basis. It was created in the Supreme Court Advocate Association-On-Record Association Vs Union of India, in the guise of interpretation. It was further explained in In Re: Presidential Reference (1999). It appears that the court usurped the powers of the Parliament, to overcome the problems prevailing at that time. But, in the process, the judiciary ended up creating a bigger problem.
“The Collegium system has failed. It has turned out to be more of networking, promoting each other candidates, personal likes and dislikes—rather than selection on merit.
The Collegium system has failed. It has turned out to be more of networking, promoting each other candidates, personal likes and dislikes—rather than selection on merit. Many eminent thinkers and judges have pointed this out. Some of the prominent ones among them are:
The Parliament tried to remedy it by the Constitution (Ninety-ninth Amendment) Act 2014. The amending Act replaced the Collegium system by National Judicial Appointments Commission (NJAC). However, a constitution bench proved Kurt Gödel right. Gödel is reputed to be the greatest logician of all time. Time magazine in its 29th March 1999 issue, rated him to be among one hundred of the greatest minds of the Twentieth Century.
“It appears that the court usurped the powers of the Parliament, to overcome the problems prevailing at that time. But, in the process, the judiciary ended up creating a bigger problem.
In 1931, he wrote a paper, 'On Formally Undecidable Proposition of Principia Mathematica and Related Systems'. It established that 'Proof of Arithmetic consistency is not possible and every system is incomplete'. It is also known as the 'Theory of Incompleteness'.
His paper has wide implications. One of them is that: every system is incomplete; and one cannot understand a system from inside; one has to be outside to understand it. Judges, being part of the system, are often neither able to understand nor fathom it.
The Constitutional Bench in Supreme Court Advocate on Record Association Vs Union of India —without any logic or legal basis—held it falling foul of the basic structure doctrine.
In England, judges (other than of the Supreme Court judges) are appointed on the recommendation of the Judicial Appointments Commission (JAC). It recommends names on merit by open competition and also has a specific statutory duty to 'encourage diversity in the range of persons available for selection for appointments'.
“Nowhere in the world do judges select and appoint judges as they do in India. It leads to inbreeding that promotes one of its own—ignoring those, who should be appointed.
The JAC has a Chairman and 14 other members. A lay member is defined as a person resident in England or Wales, who has never held a listed judicial office or been a practicing lawyer. Out of fourteen members:
The Chairman is a lay member and the majority of members are non-judicial.
Nowhere in the world do judges select and appoint judges as they do in India. It leads to inbreeding that promotes one of its own—ignoring those, who should be appointed.
“Since the inception of the collegium system, the Indian judiciary has not done well. It is in the lower rung of the ladder, among the judiciaries of other democracies.
Since the inception of the collegium system, the Indian judiciary has not done well. It is in the lower rung of the ladder, among the judiciaries of other democracies. We should do away with the collegium system and follow the British example. Hopefully, a larger bench will see the injustice, the problem created, and overrule the NJAC case.
My suggestions are:
Some of these suggestions require introspection by the judiciary; some do not. The nation as well as the judiciary should take immediate action. Otherwise, it will be too late.
(Justice Yatindra Singh was the former Chief Justice of the Chhattisgarh High Court. He authored two books, 'Cyberlaws' and 'A Lawyer's World and Childhood dreams'. Views are personal.)
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