Appointments commission proposed by the UPA suffered from vices of both pre-1993 and existing systems.

How we decide the vexed issue of the method of selection of judges of the Supreme Court and the high courts would determine the future of our democracy and the rule of law in the country. We are faced with the twin problem of selecting the best judges and also ensuring that the judiciary would be insulated from executive interference.

The attempt to undermine the independence of the judiciary originated in 1973 after the landmark Kesavananda Bharati judgment of the Supreme Court. Indira Gandhi decided that only those judges who are committed to the ideology of the government should be appointed. At that time, judges were appointed by the government in “consultation” with the Chief Justice of India (CJI) as provided by the Constitution. The government then said that it was not bound by the advice of the CJI. Successive Congress governments thereafter appointed judges who had proximity to the government. The saying, that in order to become a judge, it was not important to know the law, but more important to know the law minister, became the prevailing wisdom. The subversion of the independence of the judiciary by the appointment of convenient judges became a major issue, especially with increasing corruption within the executive.

Finally, in 1993, the system prevailing at that time was reversed and the judiciary wrested the control in the matter of judicial appointments from the executive. The words “in consultation with the chief justice” were interpreted to mean, “with the concurrence of the chief justice”. The meaning of “chief justice” was interpreted as a collegium of the CJI plus two senior judges of the court. A new elaborate procedure was laid out by the court for the appointment of judges, in which the role of the government was reduced to returning a name recommended by the collegium for reconsideration. If the collegium reiterated its recommendation, the president would have no option but to go through with the appointment. High court appointments would also go through a similar procedure, except that the recommendations there would originate from the collegium of the high courts.

In 1998, the Supreme Court further tweaked its judgment of 1993 in a Presidential Reference on this issue. The collegium was widened from three to five judges. Consultation with other judges in the court, who came from the same high court as the proposed nominee, was also provided. But the control over the appointments continued to vest with the judiciary.

This system of appointment of judges by the judiciary did lead to the depoliticisation of the judiciary to a large extent and did substantially improve its independence. But the process of appointments was still shrouded in secrecy and keeping the control over appointments with sitting judges, who had little time from their judicial work, coupled with the lack of transparency in such appointments led to nepotism and arbitrary appointments. No criterion for selection was laid down, nor was any system devised to evaluate various candidates in the zone of consideration on any criteria. No system of inviting any applications or nominations was devised either. Thus the quality of appointments did not substantially improve even in this system. Even late Justice J.S. Verma, the author of the original judgment, came to say that he did not anticipate that his judgment would lead to such poor appointments by the judiciary.

Selecting about 100 judges of the higher judiciary every year in a rational and fair manner is an onerous task requiring a full-time and not an ex-officio body. An ex-officio body of sitting judges and ministers cannot devote the kind of time required for this job. We therefore need a broad-based, independent constitutional body that would make appointments of judges in a transparent manner by calling for applications and nominations of candidates and evaluating them on set criteria. This body can be on the lines of the Judicial Appointments Commission (JAC) of the United Kingdom, which is also a full-time body, which has adequate time, expertise and resources to select the best candidates.

The Committee on Judicial Accountability (a voluntary body of senior lawyers and retired judges) proposed a bill for the constitution of a full-time and independent body called the JAC for the selection of judges to the high courts and the Supreme Court. It was proposed that such a body could be constituted from among retired judges or other eminent persons who are selected in the following manner: The chairman to be selected by the collegium of all judges of the Supreme Court. A second member by the collegium of all chief justices of the high courts. A third member by the Union cabinet. A fourth by a collegium of the leaders of opposition of the two Houses of Parliament, along with the speaker of the Lok Sabha. A fifth by a collegium of the CEC, the CAG and the CVC. Each of these members of the JAC would have a tenure of five years and would thus be independent of the government as well as of the sitting judiciary. This body would be mandated to function transparently and would have to publish the names of the persons shortlisted for appointment for the information and comments of the people, before the final selection. Being a full-time body,  it would lay down the criteria for selection and would be mandated to go about its task in a structured and rational manner. The body would be given adequate staff and resources to do justice to its onerous work.

However, neither the government nor the judiciary was interested in creating an independent full-time body as exists in the UK to select judicial appointees. A national judicial commission bill of 2013 was eventually introduced by the UPA government, which sought to create an appointments commission in which the appointments pie was sought to be divided almost equally between the judiciary and the government. The proposed commission was supposed to have the three senior-most judges of the Supreme Court along with the law minister and two eminent persons nominated by a committee consisting of the prime minister, leader of opposition in the Lok Sabha and the CJI. Thus, the commission was still conceived as largely an ex-officio body of people who would have little time to devote to appointments and it did not lay down any standards of transparency either in the appointments. The bill, which lapsed with the dissolution of the Lok Sabha, is much worse than the existing system since it suffers from the vices of both the pre-1993 system and the existing system, and does not offer any improvement.

It is therefore essential that the government moves a constitutional amendment bill to create a full-time, broad-based body that would make appointments to constitutional courts in a transparent and rational manner. The minimum level of transparency would require that the names of shortlisted candidates ought to be made public so that the public can send any evidence, if any, against any of the shortlisted candidates to the said body, which would then take that into account. We need a bill along the lines suggested by the Committee on Judicial Accountability.

The writer is a lawyer and founding member of the Aam Aadmi Party