A matter of transparency

After dithering for years, the UPA government has finally introduced a bill in Parliament to scrap the opaque collegium system, under which a panel of top judges appoints judges to the SC and HCs, making India the only country in the world where judges appoint judges.

After dithering for years, the UPA government has finally introduced a bill in Parliament to scrap the opaque collegium system, under which a panel of top judges appoints judges to the Supreme Court and high courts, making India the only country in the world where judges appoint judges.

The Judicial Appointments Commission Bill, 2013, seeks to replace the 20-year-old collegium system by a Judicial Appointments Commission (JAC), which will recommend appointments and transfers in the higher judiciary.

Law minister Kapil Sibal introduced a Constitutional Amendment Bill that proposes to add a new article to the Constitution to enable the setting up of the JAC.

The collegium system has been in the news for all the wrong reasons. Be it ignoring then Delhi high court chief justice AP Shah for elevation to the apex court or recommending then Karnataka high court chief justice PD Dinakaran to the Supreme Court — this system has drawn criticism from various quarters.

The recent allegations of Gujarat high court chief justice Bhaskar Bhattacharya against former Chief Justice of India (CJI) Altamas Kabir have put a huge question mark on the collegium system. In his March 19 letter to President Pranab Mukherjee and Prime Minister Manmohan Singh, justice Bhattacharya had accused the then CJI Kabir of scuttling his elevation to the apex court as he had opposed the elevation of his (justice Kabir’s) sister as a Calcutta high court judge. Justice Kabir had denied the allegation.

The public spat shook public confidence in the collegium system. Almost 30% vacancies in various high courts remain vacant due to the inefficient functioning of the collegium.

That the system needed to be changed was admitted by the late former CJI JS Verma who was part of the bench delivering a verdict in 1993, resulting in the setting up of the collegium system.

Noted jurist Fali S Nariman, who argued for the collegium system, now advocates a change, saying the times are no longer conducive to it.

The collegium system, now being vilified, was not that bad to start with. It was a welcome relief from attempts to install a committed judiciary during Indira Gandhi’s rule. Judges, advocates and intellectuals had barely forgotten the April 1973 supersession of three SC judges and the punitive transfers of the 1970s. People thought this would ensure judicial independence.

Successive CJIs, including present incumbent P Sathasivam, have strongly defended the collegium system, saying appointments to the higher judiciary are made after “intense deliberations”.

But the malfunctioning of the all-judges system has necessitated a change. The exclusion of the executive from the judicial appointment process too may not be desirable.

In an attempt to ensure judicial independence, the judicial appointment system has perhaps gone to the other extreme. What is needed is a balanced approach and, of course, transparency in the judicial appointment process.

“The proposed bill would enable equal participation of judiciary and executive, make the system of appointments more accountable, and thereby increase the confidence of the public in these institutions,” the Statement of Objects and Reasons of the Bill says.

Will it achieve the desired objective? Only time will tell.