Judicial appointments today lack transparency, procedure and criteria, Delhi High Court Chief Justice A.P. Shah said on Thursday, and suggested setting up a broad-based National Judicial Commission (NJC) to replace it.
Shah — behind such landmark judgments as the decriminalization of gay sex and bringing the Chief Justice of India's office within the RTI ambit — said he was hurt at being ignored for a promotion to the Supreme Court (first reported by HT in October 2008).
In an interview to HT, Shah — described by jurists as one of the finest judges denied elevation — said: “Elevation was a legitimate expectation… A sense of hurt will always remain. But I have no regrets or rancour.”
The judge, who retires on Saturday, pointed out several holes in the present system of appointment by the collegium — a body of top five judges.
“The system is opaque. There is no transparency, no procedure. What are the parameters for selection? No one knows what the collegium is looking for in candidates.”
“Would you not expect a judge to have a humanitarian view? Is he competent? If it is an elevation to the Supreme Court, are his judgments over the years taken into account?”
“For service judges, there is a system. Their judgments are examined and they are graded. There is no such procedure for elevation to Supreme Court,” he said.
Giving the example of Israel, where a 25-member body appoints judges, Shah said the NJC should be broad-based and have representatives of the judiciary, government, opposition, Bar and some prominent personalities. He said if the present system were to continue, then procedure and parameters should be laid down and reasons recorded for elevation or denial. “This would go a long way in strengthening the system,” he added.
He also wondered how two members of the collegium could veto an appointment. “If two out of five members oppose it, the candidate is turned down.”