The author, an eminent Sr. Advocate and a champion of judicial integrity and independence, expresses grave apprehension that the National Judicial Appointments Commission Bill, 2014, which seeks to replace the present Collegium system of appointment of Judges by a Committee, comprised partly of politicians, will severely hamper the independence of the Judiciary. He reminds us that the Government is the biggest litigant in the Country and warns that Judges may feel apprehensive of taking bold decisions against the Government in the fear that their chances of promotion to the higher Court would be jeopardized. The author also argues that the present Collegium system is working well and the few defects in it can be rectified. He offers practical suggestions on how this can be done.
One of the objects of the All India Federation of Tax Practitioners (the Federation) is “To strive and work for independence of Honourable Courts–“. The Tax Bar has always played a paramount role in warding off threats to the independence of the Judiciary. It was due to the labours of the Tax Bar that the independence of the Income-tax Appellate Tribunal (ITAT) could be preserved [Ajay Gandhi v. B.Singh (2004) 265 ITR 451(SC), ITAT v.V.K.Agarwal (1999) 235 ITR 175 (SC)].
Similarly, attempts of the Legislature to take away powers of the High Courts and to give them to a Tribunal to decide substantial questions of law has also been challenged [All India Federation of Tax Practitioners v.UOI (2003) 264 ITR 466/ 133 Taxman 491 Orissa(HC)/ P.C.Joshi v. UOI WP No 45 of 2006 dt 8-2-2006 (Bom.)(HC)]. A constitutional bench of the Apex Court has heard the petitions and a judgment on the issue is awaited. Whatever may be the outcome of the Judgment, the Tax Bar has the satisfaction that it has made a sincere attempt to preserve the independence of the Judiciary. Noted Jurist Shri Fali S. Nariman has stated that the 121st Constitution Amendment Bill, 2014 and the National Judicial Appointments Commission Bill, 2014 “hit at the root of judicial independence”. He also stated that “…the independence of the judiciary is now the cornerstone of the Constitution.And anything that is done which damages it is anathema and the people who decide are the judges of the Supreme Court”.
The senior members of the Tax Bar are of the opinion that the present system of the appointment of judges should be continued with albeit with increased transparency.
When a collegium of High Court selects a candidate as a Judge, they take utmost care that only persons of integrity are selected.The credentials of the candidate are judged by looking at his or her performance in the court for years, making enquiries with other judges and advocates. However, under the proposed system,it remains to be seen how would the Minster of Law and Justice or any other nominated member be in a position to judge the integrity of the proposed candidate who appears before courts in different parts of the country. Today, when the Government is the biggest litigant in various courts of the country, would a Judge be in a position to rule without fear or favour in such matters without jeopardizing his or her chances of elevation to the Apex Court!
The Federation therefore suggests as under:
1. Steps must be taken to introduce transparency and wider consultations in the present system of collegium;
2. There could be three categories of selections:
(i) After looking at the performance of advocates in courts and after enquiring into their credentials, advocates may be selected by the collegium, and thereafter, he or she may be requested to forward an application in appropriate form;
(ii) Applications maybe invited by the Registry of High Courts from advocates who are eligible to be appointed as Judges.
(iii) Selection of Judges from the lower courts / judicial authorities such as the Income-tax Appellate Tribunal.
3. Eligible criteria may be prescribed such as
(i) cases involving important issues appeared in;
(ii) Details of income declared for last three years for practicing lawyers;
(iii) Recommendation of at least three Senior Advocates or Advocates having more than 30 years of practice in that High Court;
(iv) Contribution to the development of the profession;
4. After scrutinising the applications, the names of shortlisted candidates may be circulated in the full court of the respective High Court or at least amongits senior Judges and thereafter the names of approved candidates be forwarded to the Supreme Court collegium.
6. In the era of specialisation, persons who are well conversant with the certain specialised areas of law such as taxation, IPR etc. deserve to be appointed.In the Income–tax Appellate Tribunal, for instance, certain Judicial Members deserve to be appointed as High Court judges.As per the transfer procedure, a professional appearing before the Income Tax Appellate Tribunal is not posted as Member in the same State where he was practicing.Therefore, the collegium of the High Court concerned may not have the mechanism to judge the credentials of the prospective candidates from the Income–tax Appellate Tribunal.Thus,the collegium of the High Court may, in consultation with the Income-Tax Appellate Tribunal, devise an appropriate internal mechanism for obtaining feedback about the proposed candidates. This will help attract deserving candidates of the Income–tax Appellate Tribunal to the High Court.
As regards appointment and elevation to the Apex Court, the present system of collegium should be continued with greater transparency.
The National Judicial Appointments Commission Bill may not achieve the desired objective. On the contrary it may turn out to be a great threat to the independence of the Judiciary.Possibly, one more legal battle is awaited.
I am of the opinion that Government should not have hurried into bringing in this Bill; instead, consultations on how to bring in greater transparency in the present collegium system could have been invited.If this Bill becomes an Act in its present form, the Federation may have to join-in to challenge it, for preserving the independence of the Judiciary. In an interview, the Chairman of the Law Commission of India, Justice A.P.Shah, he stated that in the 60s and the 70s, the Bar used to be very strong and at times used to take up issues of corruption and stalled judicial appointments. The Tax Bar has also raised such issues from time to time, passed resolutions and brought such issues to the notice to the authorities concerned.
We acknowledge the efforts of the Honourable Prime Minister, Shri Narendra Modi, to eradicate the corruption at all levels and on the 68th Independence Day, all Tax professionals must pledge for independence of the Judiciary and zero tolerance towards corruption in judiciary and quasi-judicial authorities.
Dr. K. Shivaram
Editor-in-Chief, AIFTP Journal
Reproduced with permission from the AIFTP Journal, June 2014