Choosing judges. A statutory search committee can help: PP Rao

October 20, 2009

RECENT developments concerning the integrity of Chief Justice P.D. Dinakaran of the Karnataka High Court have caused serious embarrassment to the collegium of the Supreme Court. They underline the need for an appropriate mechanism to assist the collegium in making proper selection of candidates. Integrity is an indispensable requirement of a judge. Socrates said: “Four things belong to a Judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially.¶ A dishonest Judge cannot decide impartially. Over the years, there has been a growing concern about the deteriorating standards in judicial appointments.

At the inaugural sitting of the Supreme Court in January 1950, Chief Justice Harilal J. Kania observed: “Unfortunately, during the last 20 years, that respect for the position, status and dignity of the judge has not been fully maintained.¶
Forty years later, Nani A. Palkhivala observed: “Public disenchantment with judicial administration has been vastly aggravated by the recent developments in the Bombay High Court. If you lose faith in politicians, you can change them. If you lose faith in judges, you still have to live with them. Corruption in the upper reaches of the judiciary is illustrative of the incredible debasement of our national character.¶

In the words of Chief Justice S.P. Bharucha: “The quality of our judges has regrettably fallen¶. Seven years ago, he made a public statement that 20 per cent of the judiciary was corrupt, mostly the subordinate judiciary. What is the position today? Obviously, things have gone from bad to worse.

Even after the superior judiciary has assumed the power of final selection of candidates for High Courts and the Supreme Court by a strained interpretation in the Second Judges Case of Article 124 requiring the executive to consult the Chief Justice of India, the quality of judicial appointments continues to cause concern to the Bench, the Bar, the government, the litigants and the public alike. The Supreme Court in that case noted: “Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior judge.¶
The judgement aroused great hopes that henceforth the quality of appointments would be very high, but experience of last 16 years has belied the expectations. A few deserving Chief Justices of High Courts were constrained to resign having been overlooked by the collegium.

When Chief Justice M.L. Pendse of the Karnataka High Court was superseded in 1996, Mr Fali S. Nariman lamented: “There may have been good reasons why a judge with an excellent record was not appointed in one of the vacancies in the Supreme Court. But this `non-appointment’ has put in doubt the continuance of a system by which secrecy governs the entire selection process. We do not know, and we cannot know, why Justice Pendse was overlooked. No one can be asked what were the written reasons for not appointing one of the then senior-most judges in the country, and a person of reputed competence and integrity. The judges’ lips are sealed, because of confidentiality; inevitably this gives rise to gossip and rumour which cannot be contradicted without breaching the code of confidentiality. This is not good for the system. It is not good for the Chief Justice of India nor for the judges of the Supreme Court.¶

There were several instances where the then Chief Justice of India and his senior colleagues could not agree over the selection of candidates for appointment as judges. In some cases, highly deserving persons were made to wait for years together before appointment, without any justification.

There is no country in the world where the power of appointment of judges is exercised by the judges themselves and the executive’s role is restricted to issuing formal warrants of appointments. Conceding that the executive lacks credibility, it cannot be kept out altogether in a democracy. If the selection of candidates for judgeship had been left entirely to the judiciary from the beginning, a pathfinder like Justice V.R. Krishna Iyer would never have been appointed a judge.

Some of us who had assisted the court in interpreting Article 124 of the Constitution the way it did, now realise the handicaps of the collegium. It has no machinery at its disposal to collect and screen the relevant data about all prospective candidates for judgeship. They select candidates based on their limited personal knowledge and the assessment of a few others whom they choose to consult individually.

The collegium has been giving undue weightage to seniority and Chief Justices of High Courts in preference to more meritorious Judges. This practice has resulted in some unsatisfactory appointments. Before the last batch of appointments was made in May this year, for the first time, the government was constrained to raise queries as to why certain senior Chief Justices were overlooked and juniors selected.

The need for transparency and accountability in the selection process is urgent. The problem is crying for a solution. It has to be within the existing framework. Handing over the power of final selection back to the executive is neither feasible nor desirable. Parliament can put in place a mechanism to assist the collegium and facilitate proper and better selection without in any manner curtailing its power of final selection, by providing for the constitution of a statutory search committee by the President in consultation with the CJI consisting of eminent persons of impeccable integrity including a former Chief Justice and a retired Judge of the Court, two senior renowned lawyers of the Supreme Court, the Attorney-General, the Secretary (Law) as Member-Secretary, the Secretary (Home), and a very senior and well reputed journalist.

The functions of the search committee would be to collect all relevant data from the executive, the Bar and the judiciary throughout the country, analyse it and make assessments of probable candidates who are eligible and deserve to be considered for elevation to the Supreme Court both from the Bar and the Bench and also mention the names of Chief Justices and senior judges of the High Courts who do not enjoy good reputation.

The former CJI could be the Chairman of the Committee. The search committee shall prepare a panel of selected candidates, three times the number of vacancies to be filled and forward it together with the entire material to the collegium for consideration. It should be open to the collegium to consider any other candidate, for reasons to be recorded, who deserves such consideration.

Generally, universities while advertising the post of a Professor, insert a clause to the effect that it would be open to the selection committee to consider cases of other deserving candidates who had not applied for the post in question. There are several high posts like Vice-Chancellors for which search committees make the preliminary selection.

In the matter of judicial appointment, the question to be considered is not whether a particular candidate is proved to be corrupt, but whether he or she is a person of doubtful integrity. Only men of undoubted integrity ought to be considered for elevation.

As David Pannick observes: “Judges are mere mortals but they are asked to perform a function that is truly divine.¶ The judiciary has acquired credibility because, in the past, by and large, the members had conformed to standards of life and conduct which are, in the words of Sir Winston Churchill, “far more severe and restricted than that of ordinary people¶. It is the credibility which sustains the judiciary. The day the last citadel loses its credibility, there will be no rule of law.

The writer is Senior Advocate, the Supreme Court of India.