EDITORIALSmarch 21, 2009 vol xliv no 12 EPW Economic & Political Weekly6Closed BrotherhoodA system in which the judiciary selects itself does not suit a democracy.An important issue that the next government at the centre as well as the 15th Lok Sabha will have to take up is changing the system of appointment of judges to the higher courts. The need for a change – which will require a constitutional amendment – has been discussed for a long time. The United Progressive Alliance government did not pursue the matter though it became a live one towards the end of the government’s tenure, the justification being that there was little time left for consideration of this important issue. But the next government and Parliament can follow up the matter, and there is a framework of ideas that can be acted upon. This is the outcome of a debate that has taken place on the subject for many years, especially after the present system of a collegium of judges came into being following a Supreme Court judgment. The Court, in what is known as the judges case, decided in 1993 that the judges of the Supreme Court and high courts should be appointed by the president on the recommendation of the chief justice of India, who forms his opinion on the basis of consultation with a collegium of judges. The judgment shifted the power to appoint judges from the executive to the judiciary and was a turning point in the relationship between the two. This judgment was confirmed by the Court in 1998 on a presidential query. With this the primacy of the chief justice in judicial appointments became well established, though he cannot do so without the consultation process within the collegium.The system that came into being and is now in force does not suit a democratic society. There is an element of self-perpetua-tion when only judges select future judges. Neither the legisla-ture nor the executive are meant to be self-perpetuating. Both are created by a legitimate external agency – the people in the case of the legislature and the legislature in the case of the executive – and they derive their legitimacy as much from their process of creation as from their constitutional role. This method of creation underlines the interrelationship of the organs of the State. The judiciary cannot be an exception to this process.If the system for appointment of judges to the higher courts that is now in vogue is conceptually wrong, it is deficient in prac-tice too. It is not an open process and there is little transparency and accountability in the procedure. A closed system of selection where the recommendations are made within the brotherhood of the judiciary, with the outside world and even agencies and persons with constitutional powers and responsibilities com-pletely in the dark about them, cannot have much to commend it. As in the case of justice, so in the case of appointment of judges: the process should not only be fair, but should be seen to be fair as well.In no other major democratic country is the appointment of judges the sole prerogative of the judiciary. The executive has primacy in the selection of judges in the United States and the United Kingdom, France, Germany and other large countries. There is a role for the legislature too. The procedures differ from country to country, but they essentially underline the roles of other organs of the State in the matter. There is a view in the country that the independence of the judiciary will be compromised if the executive and the legisla-ture have a say in the appointment of judges. This view is wrong and arises from a popular, basically middle class, distrust of politics. There is much bad politics in the country. But the State is a political idea, all its organs have to be politically correlated in an environment legalised by the Constitution, which too is a political document. To consider the judiciary as an island above the working of the State is wrong. Such a perception can open the door to judicial authoritarianism. The Law Commission headed by Justice A R Lakshmanan, the National Commission for Review of the Constitution ap-pointed by the National Democratic Alliance government and the parliamentary standing committee on law and justice head-ed by E M S Natchiappan have all recommended that the present system needs to be changed. The Second Administrative Reforms Commission has proposed the setting up of a national judicial council to make recommendations on appointment of judges to the higher judiciary, their transfers and postings and removal in case of misconduct. These recommendations differ in details but the common theme is to give a due say to the executive and the legislature in the matter. The Supreme Court chief justice has said that the present collegium system is working well, but he has also said that it is for the executive and the legislature to change it if they decide to. The next Parliament and govern-mentwill have to pay serious attention to evolving a system whichwill remove the current imbalance in the process of ap-pointments to the higher judiciary.that the predominance of the upper castes in the legislative assembly is among the highest in the country. It appears that on a range of issues important to the poor and marginalised, the LF government of West Bengal has been caught flat-footed. It is unclear how all these factors will play out in the coming parliamentary elections. Rather than projecting a bold new politicalprogramme to address these issues and chart a way out, theLF appears defensive and lacking the creativity which marked its land reform policies and political manoeuvres. It has tradi-tionally been helped, apart from its own strength, by an incom-petent and divided opposition. Will it be the same story this time in 2009 or will the processes discussed here be reflected in the verdict? Whatever the actual results, this election is surely not easy to call.A+| A| A-
Closed Brotherhood
A system in which the judiciary selects itself does not suit a democracy.
EDITORIALSmarch 21, 2009 vol xliv no 12 EPW Economic & Political Weekly6Closed BrotherhoodA system in which the judiciary selects itself does not suit a democracy.An important issue that the next government at the centre as well as the 15th Lok Sabha will have to take up is changing the system of appointment of judges to the higher courts. The need for a change – which will require a constitutional amendment – has been discussed for a long time. The United Progressive Alliance government did not pursue the matter though it became a live one towards the end of the government’s tenure, the justification being that there was little time left for consideration of this important issue. But the next government and Parliament can follow up the matter, and there is a framework of ideas that can be acted upon. This is the outcome of a debate that has taken place on the subject for many years, especially after the present system of a collegium of judges came into being following a Supreme Court judgment. The Court, in what is known as the judges case, decided in 1993 that the judges of the Supreme Court and high courts should be appointed by the president on the recommendation of the chief justice of India, who forms his opinion on the basis of consultation with a collegium of judges. The judgment shifted the power to appoint judges from the executive to the judiciary and was a turning point in the relationship between the two. This judgment was confirmed by the Court in 1998 on a presidential query. With this the primacy of the chief justice in judicial appointments became well established, though he cannot do so without the consultation process within the collegium.The system that came into being and is now in force does not suit a democratic society. There is an element of self-perpetua-tion when only judges select future judges. Neither the legisla-ture nor the executive are meant to be self-perpetuating. Both are created by a legitimate external agency – the people in the case of the legislature and the legislature in the case of the executive – and they derive their legitimacy as much from their process of creation as from their constitutional role. This method of creation underlines the interrelationship of the organs of the State. The judiciary cannot be an exception to this process.If the system for appointment of judges to the higher courts that is now in vogue is conceptually wrong, it is deficient in prac-tice too. It is not an open process and there is little transparency and accountability in the procedure. A closed system of selection where the recommendations are made within the brotherhood of the judiciary, with the outside world and even agencies and persons with constitutional powers and responsibilities com-pletely in the dark about them, cannot have much to commend it. As in the case of justice, so in the case of appointment of judges: the process should not only be fair, but should be seen to be fair as well.In no other major democratic country is the appointment of judges the sole prerogative of the judiciary. The executive has primacy in the selection of judges in the United States and the United Kingdom, France, Germany and other large countries. There is a role for the legislature too. The procedures differ from country to country, but they essentially underline the roles of other organs of the State in the matter. There is a view in the country that the independence of the judiciary will be compromised if the executive and the legisla-ture have a say in the appointment of judges. This view is wrong and arises from a popular, basically middle class, distrust of politics. There is much bad politics in the country. But the State is a political idea, all its organs have to be politically correlated in an environment legalised by the Constitution, which too is a political document. To consider the judiciary as an island above the working of the State is wrong. Such a perception can open the door to judicial authoritarianism. The Law Commission headed by Justice A R Lakshmanan, the National Commission for Review of the Constitution ap-pointed by the National Democratic Alliance government and the parliamentary standing committee on law and justice head-ed by E M S Natchiappan have all recommended that the present system needs to be changed. The Second Administrative Reforms Commission has proposed the setting up of a national judicial council to make recommendations on appointment of judges to the higher judiciary, their transfers and postings and removal in case of misconduct. These recommendations differ in details but the common theme is to give a due say to the executive and the legislature in the matter. The Supreme Court chief justice has said that the present collegium system is working well, but he has also said that it is for the executive and the legislature to change it if they decide to. The next Parliament and govern-mentwill have to pay serious attention to evolving a system whichwill remove the current imbalance in the process of ap-pointments to the higher judiciary.that the predominance of the upper castes in the legislative assembly is among the highest in the country. It appears that on a range of issues important to the poor and marginalised, the LF government of West Bengal has been caught flat-footed. It is unclear how all these factors will play out in the coming parliamentary elections. Rather than projecting a bold new politicalprogramme to address these issues and chart a way out, theLF appears defensive and lacking the creativity which marked its land reform policies and political manoeuvres. It has tradi-tionally been helped, apart from its own strength, by an incom-petent and divided opposition. Will it be the same story this time in 2009 or will the processes discussed here be reflected in the verdict? Whatever the actual results, this election is surely not easy to call.
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