JUDGING THE JUDGES-II

ASHOK BHAN
In the wise words of Alexander Hamilton, one of the framers of the American Constitution, “the courts were designed to be an intermediate body between the people and the Legislature in order, among other things, to keep the latter within the limits assigned to their authority. Judges, though they may not be omniscient or for that matter philosopher- kings, are better equipped for the task so long as they are aware of their limitations.”.
Serious criticism has been made regarding functioning of the collegium system. By Constitution (Ninety-ninth Amendment) Act, 2014, Articles 124A, 124B and 124C have been inserted defining National Judicial Appointments Commission, functions of the Commission and power of Parliament to make law, respectively. The Parliament has enacted the National Judicial Appointments Act, 2014. The Constitutional Amendments read with provisions of designed to be an intermediate body between the people and the Legislature in order, among other things, to keep the latter within the limits assigned to their authority. Judges, though they may not be omniscient or for that matter philosopher- kings, are better equipped for the task so long as they are aware of their limitations.”
This Hon’ble Court in Supreme Court  Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 followed by Special Reference No.1 of 1998, (1998) 7 SCC 739 evolved the Act, have given the task of appointment of Supreme Court and High Court judges to the National Judicial Appointments Commission. The arguments have been advanced against the National Judicial Appointments Commission and in favour of the collegium system and vice versa.
I Have been advocating transparency for strengthening democracy and accountability in all functions of the government I and my team of lawyers argued the PUCL matter. In PUCL v. Union of India & Anr., (2002) 5 SCC 294, the question with regard to antecedents of candidates fighting election for the post for MPs and MLAs was raised. It was pleaded that voters have a right to know the relevant particulars of the candidates. This Hon’ble Court observed that a citizen’s right to know is derived from the concept of freedom and expression under Art.19(1)(a) and that people of the country have a right to know every public act or everything done in public way by public functionaries. It was pointed out that in a democratic form of government, it is the Member of Parliament or a MLA of State Legislature who represents the people of his constituency in the highest law making bodies at the Centre and the State respectively. In order to ensure the purity of elections and transparency to the process of election, this Hon’ble Court directed that people have a right to know about the background of the candidate, his assets, educational qualification, etc.
It will be interesting to note that the Parliament, with all the political parties unanimously agreeing to nullify the said judgment, passed amendment to the Representation of Peoples Act, 1951. The said Amendment was challenged again by PUCL before this Hon’ble Court, which is reported in PUCL v. UOI (2003) 4 SCC 399. The Amendment which sought to nullify the judgment of this Hon’ble Court was declared unconstitutional. It was reasserted that the people of this country have a right to know under Article 19(1)(a) of the Constitution about the antecedents of the candidates contesting the elections. It was stated that a well-informed voter is the foundation of democratic structure. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the government. The parameters of Article 19(1)(a) of the Constitution were evolved by this Hon’ble Court to ensure that the representatives of the people are chosen by the people after knowing their antecedents because only the right kind of people should be able to participate in the law making process in the legislature.
The same principle applies to the judiciary which is another pillar of democracy. The administration of justice is essential for reposing confidence of the people in the judiciary and in democratic values. The persons who are going to administer justice are, therefore, required to be chosen in a transparent manner. People have a right to know about the antecedents of a candidate who is going to administer justice. Antecedents could involve his background, his assets, qualification and the achievements, which he has made in legal profession and in other walks of life. This will enable people to inform the selection committee about such candidates, his merits or demerits. The performance of an advocate is an act in the public domain. In fact, whatever he/she does as an advocate (or as a judge), is seen by the other members of the bar. It is further submitted that information about the antecedents of the candidate will enable the Appropriate Forum to appoint judges, only after considering various factors on merit, including his honesty and integrity besides the knowledge of law.
It is evident that for such sensitive posts, a broader element of selection mechanism is necessary. To say that to involve persons other than judges in selecting judges will bring in extraneous pressure is too simplistic. This argument proceeds on the assumption that the judges are immune to human frailties while making non-judicial decisions (such as appointments and transfers). This self-glorification is not accepted even by members of the Judiciary. The former Chief Justice, A.S Anand, reminded the judges that though “our function is divine, the problem begins when we start thinking that we have become divine”. To similar effect is that expostulation of Justice Frankfurter of the U.S Supreme Court that “all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint”.
The fear that presence of a lay person will interfere with the independence of the judiciary is misplaced as Judicial Commission of New South Wales (Ireland) Annual Report said: “In conferring a complaints function upon the Commission the Parliament struck a balance between independence and accountability. Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates; it is fundamental principle of our society’s constitutional arrangements”.
It will be wrong to infer that independence of judges requires that persons other than judges should have nothing to do with appointments, removal and other matters. But this is to misunderstand the role of judges in a republican Constitution such as ours. It should be emphasized that issues which judges now have to decide are not the kind of those which arose in the 19th Century. This is because the power of the Judiciary under the Constitution is different in terms of quality and extent than it was under the pre-Constitution period. Judges are no longer expected to be merely experts in the technicalities of procedure or evidence. Their role in society has undergone a sea change. Most of the cases raise questions of public law and the Constitution, in which the philosophy and broad socially-oriented objective thinking of a judge would play a crucial role in interpreting law.
The constitution of any national judicial appointment commission varies internationally. It may be 5 (as in the United Kingdom Supreme Court) to 27 (in Italy’s Consiglio superior della magistratura). In the United Kingdom, appointments to the Supreme Court are covered under ambit of the Constitutional Reform Act 2005. They are made by a body composed of the President and Deputy President of the Supreme Court, a member of the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission.
The French body for judicial appointments, Conseil Superieur de la Magistrature, consists of 12 members. Apart from the President and the Minister of Justice being ex officio members, the permanent body is composed of 5 elected judges, 1 public prosecutor, 1 counsillor of State and 3 jurists. In Malaysia, the appointment of the superior court judges is by the King, acting on the advice of the Prime Minister and the Conference of Rulers. It must be noted that the Prime Minister has to consult the Chief Justice before tendering his recommendation.
The body discharging these functions in Spain is Consejo General del Poder Judicial. It consists of 21 members, 12 judges and 8 highly experienced lawyers. As for Portugal, the body is the Conselho Superior da Magistradura (CSM), which is composed of 17 members. They include 7 judges, 7 non-judges whose names are recommended by the Parliament, 1 judge and 1 non-judge nominated by the President with the President of the Supreme Court as the ex-officio member.
In Israel, all judges are appointed by the President, upon the nomination by the ‘Judges’ Nomination Committee’. This body is composed of 9 members, including two judges of the Supreme Court, the President of the Supreme Court, two ministers of the Government one of whom is the Minister of Justice who chairs the committee, two members of the Knesset and two lawyers from the Israeli Bar Association.
However, there has to be an effort on the part of every country’s political establishment to find its own “golden Aristotlian mean”.
The Law Commission, in its 121st Report, had suggested that the present closed system of appointing judges can be replaced with a National Judicial Commission (NJC). Certainly the public at large has a legitimate stake in the judiciary and has a strong justification to insist that such an important function concerning the whole society cannot be the preserve of the small free-masonry of the judiciary.
The public can participate in this process only if the candidate’s antecedents are put in the public domain. It would be desirable that the names, qualifications and other details be put to on the web. The Commission should strive to make all decisions on the basis of mutual consensus. However, decisions may be taken on a majority voting basis when a unanimous decision is not deemed to be possible. It must be noted that all communication shall be recorded. However, all members who support or oppose a motion should give in writing adequate reasons for their decision, which would be available to the general public.
Fears have been expressed that accusations of misconduct- before they have been established as credible- would affect the independence of the judiciary.  In this connection, the views of the President of the Australian Commission, in his foreword to the Judicial Commission’s 1997 Annual Report are worth repeating: “Since the final object of the system, as illustrated by the ultimate sanction, is to procure the departure of persons unfit for judicial office, in such a case the scheme of the Act, has not been frustrated; it has been fulfilled”.
Harsh though it may sound, but one must remind what Justice Holmes said: “I trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely. But one may criticise even what one reveres. And I should show less than devotion, if I did not do what in me lies to improve it.”
(The author is  senior Advocate Supreme Court)

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