SC against civil society role in judges' selection

The Supreme Court has disapproved any effective role for civil society in appointment of judges in the higher judiciary.

Though the civil society saw its upsurge in Anna Hazare movement in 2012, it has not evolved as much to give any direction to the political executive in the country, the apex court said.

A five-judge Constitution bench quashed the 99th Constitutional Amendment Act enabling formation of National Judicial Appointment Commission  with two eminent persons from civil society.

“It (civil society) is not yet sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent, for the political-executive establishment,”Justice J S Khehar said, adding, it is the higher judiciary, which is the savior of the fundamental rights of the citizens and must continue to act as the protector of the civil society.

During the arguments, the government, through Attorney General Mukul Rohatgi, submitted that it was imperative for the court, to take into consideration the existing socio-political conditions, the ground realities pertaining to the awareness of the civil society, and the relevant surrounding circumstances.

“In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice Khehar said.

The government has claimed induction of civil society representation will bring about critically desirable transparency, commitment and participation of the ultimate stakeholders – the people.

In his separate judgment, Justice Adarsh K Goel, however, said there is no bar to an expert feedback from the civil society through the constitutional functionaries involved in the process of appointment of judges.

“Thus, there is transparency as well as checks and balances. These considerations do not justify interference with the final initiation of proposal by the judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution,” he said.

It was the only minority view of Justice J Chelameswar who said there is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary.

“Various democratic societies have and are experimenting with models involving association of civil society representation in such selection process,” he said, adding “the fiasco” created in several cases in over 20 years working of collegium system could justify participation of civil society members.