Restoring balance

The clearance given by the Union cabinet for the bill to set up an independent commission for appointment of judges of the higher judiciary is a good step forward.

The need to make the present system of appointments more transparent has been felt for a long time. At present a collegium headed by the chief justice of India at the Supreme Court level or the chief justice of the high court at the high court level and consisting of senior judges has been shortlisting  names of persons to be appointed judges and making recommendations for their appointment.  This process has been found deficient as it is opaque and has led to controversial selections. There has been demand for a better system, including from the Law Commission. A bill for the purpose was introduced in the Lok Sabha in 2003 but it lapsed. In all major democracies the executive has a role in judicial appointments.

The proposed bill tries to create a balance by setting up an independent commission, representative of both the judiciary and the executive, for the selection of judges.  The commission will be headed by the CJI and will include the law minister, two Supreme Court judges, the law secretary and two ‘eminent’ persons. The eminent persons will be selected by the CJI, the prime minister and the leader of the opposition in the Lok Sabha. The judiciary will still have the dominant role, but the executive will have a significant say.  It is an improvement on the system where only one of these had the power to make judicial selections. Before 1993 when the Supreme Court introduced the collegium system the executive had the sole prerogative in the matter. Governments had misused this power to select their own favourites for judicial positions. There was even a demand for a committed judiciary which would support the government’s policies.  The independent status of the commission would ensure that there is no return to the arbitrariness of the executive.

The higher judiciary seems to be in favour of continuing the collegium system. This has been made clear by the present and past chief justices of India. It will be unfortunate if there is a confrontation between the judiciary on one side and government and Parliament on the other on the issue. Some details like the criteria for selection of eminent persons may have to be worked out, but overall the proposed system seems to be fair and open.