Transparent system

With the Lok Sabha passing the National Judicial Appointments Commission Bill and the Rajya Sabha likely to pass it during the current session, the country will have a better and more transparent system of selection of judges for the higher judiciary.

  Proposals to change the present collegium system have been made for a long time but legislative attempts to introduce a new system, which will give the executive also a role, have failed in the past for one reason or the other. The collegium system, in which a panel of judges decides on selection, postings and transfers of judges, was introduced by the Supreme Court in 1993. A former Supreme Court judge’s revelations about the questionable and less than best results of the functioning of the collegium and the known cases of the decision to elevate a tainted judge like P D Dinakaran to the Supreme Court in 2009 and the Soumitra Sen episode later, demonstrated the inadequacies and pitfalls of the present system.  

The system needed change for reasons which have become clear in two decades of its working. It is a closed and secretive system with procedures which are not open to public and prone to errors as seen in the past. There is no accountability in it and when judges themselves select other judges it becomes a means for self-perpetuation with chances of favouritism and wrong judgment distorting the process. It is not suited for a democracy. In no other major democratic country judicial appointments are the sole prerogative of the judiciary. The executive has primacy in the selection of judges in the US, the UK, France, Germany and many other countries, with a role for the legislature too. The procedures differ from country to country but they essentially underline the role of other organs of the state in the matter. 

The present bill envisages a fair selection system with the appointments commission having equal membership of judicial and non-judicial members. It should help ensure that there are institutional checks and balances which are key to the working of a constitutional democracy. There are safeguards against excessive weightage and powers for any section. The fear that it may lead to loss of the independence of the judiciary may be misplaced. The collegium system had sought to correct the tilt in favour in the executive in the earlier system of selection but in the process it went to the other extreme. The Bill seeks to strike a fair balance.