LAHORE: While parliamentarians sitting in the legislative houses of US, Germany, France, UK, Canada and Australia etc have long been playing a key role in the recommendation and even election of their arbiters, the Indian Supreme Court’s Collegium has also finally made the process of judicial appointments transparent by ensuring the posting of all judicial decisions on its website.
The Collegium is a body comprising India’s five senior-most judges, including the country’s Chief Justice, which has previously been selecting judges since 1993 for appointments to high courts and the Supreme Court.
The Supreme Court of India and the government have been at loggerheads for decades over how to appoint judges, one of several areas of divergence between the two, though some sanity prevailed on October 6 this year when the Indian Supreme Court Collegium finally made the process of judicial appointments, confirmations, elevations and transfers etc totally transparent through posting of all such decisions on the Supreme Court official website.
The Supreme Court Collegium’s decision of October 6, 2017 had actually come a week after it had faced severe criticism for a proposal to shift Justice Jayant Patel out of Karnataka High Court to Allahabad.
A new procedure for appointment of judges in India would thus be laid down soon as the "Collegium Method" might only find a place in history books and Law chronicles!
The October 6, 2017 edition of the "Hindustan Times" had reported: "The Supreme Court Collegium has begun posting all decisions on judicial appointments and transfers on its website to ensure transparency, seeking to tackle a point of friction with the government."
The prestigious Indian media house had added: "All information will be available under the new tab "Collegium Resolutions" on the official portal of the top court. Details posted will also indicate the reasons for the recommendation or rejection of a name for appointment, transfer or elevation. To start with, the Collegium posted its resolutions passed on October 3 on the elevation of district judges to Madras and Kerala high courts. The Collegium system of appointment, in place since 1993, has come under criticism, especially from the government for being opaque."
The "Hindustan Times" had gone on to write: " The Centre has been pushing to scrap it and appoint another panel – the National Judicial Appointments Commission Act— to decide on elevating judges, one in which the executive would have a say. The Collegium’s move towards transparency comes a week after it faced severe criticism for a proposal to shift Justice Jayant Patel out of Karnataka high court to Allahabad. The judge, who resigned in protest, was tipped to become the acting chief justice of the high court on October 9."
The newspaper had written: "The standoff with the government has delayed the appointment of new judges to higher judiciary. The Supreme Court, with a sanctioned strength of 31, is short of six judges and is battling a backlog of 60,000 cases. Across the country’s 24 high courts, as many as 413 judges’ posts are vacant. The October 3 resolution, Transparency in Collegium system, bears the signatures of all its members – chief justice of India Dipak Misra and Justices J. Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph."
It is worth mentioning here that a few days ago on October 28; the Supreme Court of India had asked the government’s top law officer to explain the delay in finalizing a new procedure to appoint judges, hence setting up possibly yet another confrontation between the judiciary and executive.
Brief history regarding appointment of Indian judges by their own colleagues in courts:
Till 1993, the Executive branch of the Indian government had held reasonable sway in this context, but a nine-judge Supreme Court bench had then taken over the power of appointing judges in its own hands.
The 1993 decision was reaffirmed in a unanimous verdict rendered again by a nine-judge bench of the Indian Supreme Court in 1998, which had observed that the recommendation for appointment of judges should be made by the Chief Justice of India and his four senior-most colleagues.
Criticism:
Critics of the Indian system, however, have been feeling for years that the method used for these appointments by judges themselves might someday lead to the selection of only those who held similar ideological or philosophical positions.
These critics have been asserting that it may also lead to nepotism, fearing friends and relatives of the sitting judges might sneak into the panel to benefit cronies and hence the emergence of a coterie in judges’ appointments was quite likely.
Those opposing the Indian judicial system had further opined before October this year that the impeachment proceedings to punish an errant judge were impractical too---as massive support from members sitting in both houses of Parliament was imperative to initiate an impeachment proceeding---and once that process was completed, only then could the President of India remove the judge.
Research shows that in 2015 matters became worse between the Executive and Judicial branches after the top Indian court went out striking down a law the government had brought – the National Judicial Appointments Commission Act – to end a more than two-decade old practice, unique to India, of judges appointing judges under the Collegium System.
Appointment of judges in United States, Germany, France, United Kingdom and Australia:
In United States, the President makes the nomination. The Senate Judiciary Committee conducts hearings and forwards a report to the Senate, which then takes a decision by simple majority, either confirming or rejecting the nomination made by the President.
In Germany, judges to the Federal Constitutional Court are elected by lower House of Parliament and the Federal Council.
In France, the President of the Republic presides over an 18-member council comprising of the Minister of Justice, prominent public figures and judges.
This committee then makes proposals for the appointment of judges.
In United Kingdom, the Supreme Court judges are appointed by the Queen on the recommendation made by the Prime Minister.
The Lord Chancellor, who is a member of the Cabinet, convenes a Selection Commission which must consult senior judges, the Lord Chancellor himself, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland, before preparing and a report for the Lord Chancellor about the selection.
In Canada, appointments to the Supreme Court are also made by the Governor General on the recommendation of the Cabinet. Candidates are screened by a Judicial Advisory Committee established and lawyers who only meet the legal and Constitutional requirements can apply.
A list of all candidates reviewed by the committee, together with the reasons for recommendation or rejection of the aspirants is then forwarded to the Federal Minister of Justice, who then recommends that individual to the Cabinet.
During the appointment of a Chief Justice or an Associate Chief Justice, the recommendation to cabinet is made by the Canadian Premier.
During the elevation or appointment of a sitting court judge to another superior court, a recommendation by the Minister of Justice (or Prime Minister) to the Cabinet is required, though the Minister may undertake consultations.
In Australia, the judges are appointed by the Governor General. In practice, that means an appointment by Cabinet, generally on recommendation of the Attorney General. The judges in Australia qualify by means of competitive examinations. Judges can neither be removed from office nor can they be dismissed without the consent of the High Council of the Judiciary, though the Minister of Justice has the power to originate disciplinary action.
It goes without saying that courtesy their power of Judicial Review, courts in countries like the US, India, Germany, United Kingdom, Canada and Sweden etc literally enjoy unquestionable supremacy over their respective legislative houses otherwise.
Worldwide debate is still on with reference to the appointment of court judges:
Research shows that no matter how well the judicial systems might have evolved over a long period of time on this planet, the debate on the appointment of court judges is still on, even in the most developed of nations where a relatively proper legal system is in place.
However, doubts are regularly being cast by law pundits and judicial scholars, even in the developed West, over the transparency factor in the appointment of judges.
In Pakistan, this issue of judicial appointments, elevations, transfers and removal of judges etc needs an earliest attention otherwise it has the potential to remain an apple of discord between the Executive and Judiciary for many years to come, despite the fact that the 1973 Constitution provides explicit guidelines to appoint judges.
A few years ago, as research shows, the National Assembly’s Parliamentary Committee on Constitutional Reforms had certainly managed to break some ice during its meetings aimed at evolving a system that could ensure precision in the appointment of these judges, though the Pakistan Supreme Court Bar Association had then viewed that politicians should not be involved in this process.
While judges and legislators world over have frequently locked horns during the last two centuries or so, politicians have often argued that laws passed by the parliament should be protected from judicial review since the law-makers were public representatives. On the other hand, judges have perceived the criticism against the scope of judicial power as an attack on the independence of the judiciary.