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Can A Litigant Be Allowed To Have A Say In The Appointment Of A Judge?

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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.

Yours truly,

Jai hind

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Dr. K. Shivaram

Editor-in-Chief, AIFTP Journal

Reproduced with permission from the AIFTP Journal, June 2014

12 comments on “Can A Litigant Be Allowed To Have A Say In The Appointment Of A Judge?
  1. independence of judiciary is a definite must.

    never allow executive or legislature to interfere with judiciary.

    after all laws are passed by legislature or executive, when so same is applied after testing on the anvils of the constitution by the judiciary when so why legislature and executive need to meddle with judiciary is the prudent question.

    again, there is already tested system of collegium is working but that could be bettered by the very judges themselves rather than allowing politicians or executive to meddle, is indeed a pertinent thought.

    judiciary being custodian of constitution, no other arm is required to interfere with judiciary, and people as citizens also raise questions on politicians, you do your jobs better than yesterday than trying to meddle with judiciary and you are no body please realize they shd say firmly,as the citizens are concerned their own safety rather than safety of politicians who have to face the heat from all corners as they choose to play politics in the day o day lives of people.

    so warn all politicians better stay away from judiciary at the arm’s length.

  2. N.M. Ranka, Senior Advocate says:

    Dear Dr. Shivaram,

    Thanks for the editorial in the August Issue of the Journal.

    I concur with your view: “Present collegium system of appointing Judges be continued” subject to make the collegium at High Court level wider, more transparent and accountable. I suggest that Chief Justice along with 4 Senior Judges instead of two to be in the collegium. The Chief Justice may seek secret opinion of other Hon’ble Judges to evaluate.

    Calling for an application would not be dignified. It is Elevation – not Appointment. During my times, we were not required to make an application for designating as Senior Advocate and in my case the Hon’ble Chief Justice visited my residence personally to seek the consent.

    There cannot be any fixed criteria. It all dependents on the wisdom of the collegium. However, for evaluation, the Chief Justice may call for requisite information as to reported leading cases, assessed income for last three years and other professional and social contribution.

    Preference or extra weightage be given to Senior Advocates of age bracket 45 – 50.

    Every elevated Judge to give a declaration according consent for transfer to other High Court. It is necessary to avoid gossip and doubts for “Uncle Judges”.

    ITAT Members functioning meritoriously and with integrity of ten years be considered and a quota be ear-marked within the quota for District Judges.

    Age of superannuation of each Judge is known and, therefore, the Hon’ble Chief Justice should commence exercise at least before six months to enable to organize oath ceremony within 15 days from the retirement.

    Judges recommended by the High Court to the Supreme Court collegium be honoured except in exceptional cases and the Supreme Court collegium to meet and decide within one month and similar time limit be fixed for other functionaries. It should proceed with speed and on priority. Once recommended by the High Court collegium, deserve to be considered even on retirement of the Chief Justice or any one or more of the Member of the collegium.

    Present vacancies should be filled up at least within six months.

    Yours sincerely,

    (N.M. Ranka)

    Senior Advocate

  3. Drupad says:

    This case being cited was being considered under collegium system. so how does this example have any bearing on the new law?

  4. parantap chandurkar says:

    The apprehensions of the author have a support of the case of appointment of Adv. Gopal Subramanium whose case for SC judge was rejected just for the reason that he argued cases against Modi in Govt.

    Parth Garg

  5. Shivangni Sharma says:

    If the litigant (MPs) cannot be allowed to have say in appointment of a judge how can they have to power to remove them through impeachment?
    In such a case only judiciary should have the power to hire & fire themselves

  6. Drupad says:

    If we question the title the answer will be clear, if the judges can be dismissed by litigants (MPs), then surely then can be appointed by them too.
    Judiciary is not made of Gods, they are humans too as the Hon. CJI himself said when Mr Katju’s revelations started tumbling out.
    Humans must not be given God like powers.
    When the removal of tainted judges is virtually impossible the least the judiciary can to is to allow the people to have a say in their appointment through parliament.
    Tentacles of the rulers have spread into the judiciary even with collegium system precisely because judiciary is not answerable to anyone.

    A number of instances are in the public domain,
    Mr Natwar Singh Mentioned about a Congress Spokesperson found in compromising position in the precincts of courts, why was it hushed up?
    We found that SC itself had not setup a committee under Vishakha Guidelines, why? This matter came to light right after Tejpal scandal.
    The courts have refused to fast track cases pertaining to politicians, but have given moral guidlines about appointing tainted ministers, aren’t politicians brazen enough to ignore this.
    The mood of the nation is to throw out corruption from all corners of its institutions, so why is legal profession shy of Sunlight in its own darkest corners.
    It is quite intriguing to note that the UPA minstiers turned lawyers have managed to get stays & bails for the people trying for the same for a long time.
    No wonder even Asharam has appointed ex law minister of UPA to get him out of jail!
    The HC of Delhi took up case of UPA bosses to grant stay expeditiously, what happened to the litigants whose cases got deferred for this VIP hearing?

  7. R S Nambi says:

    I concur that the Collegium system is working well and the few defects in it can be rectified.But to improve the selected candidates must be placed in public domain so as to attract comments from various courts in India , bar associations and members of the bar. These comments can be reviewed by CJI with law ministry and CJI can take the final decision.The lack of transparency in the collegium system should not give room to greater evil.

  8. One plain but uncomfortable fact is that the judiciary Rio demanding accountability from all and sundry has been , very very surprisingly, very slow in its own matters. The open and shut case of judge Nirmal Yadav is still pending for so many years. The corruption cases in the Kolkata tribunal are also pending for many years. These questions must be asked from the top judiciary.

  9. Rashmikant says:

    I have read an article . I do not agree with the views of our dear friend. The history of collegium Is dismal. There was no transparency. Merit went begging. Hence in order to keep the faith of the people for whom institution exists there has to be some mechanism which does not favour nepotism and encourages merit I can give examples of judges who were having merit but they suffered because of personal prejudices. I do not see anything wrong with alternative of judicial commission. There is no question losing of judicial independence judges independence to decide cases is not touched . Merely because collegium cannot appoint it dos not mean That judicial independence has gone. If you see the procedure of appointing Supreme Court judges in USA there is nothing like collegium. And United States Supreme Court has performed Well. In my view litigant is not appointing judges but people of India namely elected members of the parliament has approved the alternative. And states have to approve. One must respect democracy.and the will of the people. And will of the people is supreme. It is not out place to mention in judicial commission senior judges of Supreme Court wil be there. In fact judicial commission consists.of people of eminence which will consider people of merit and of highest Quality of integrity. I believe that the judicial commission cannot be called a litigant .prob With great respect I differ with my friend.

  10. Indra Prakash says:

    What about a Judge who is addressed as “My Lord” keeps the judgement in pendancy for nearly two years . The appellant expires and the family is suffering and waiting for the judgement to be pronounced. With the appointment the judge is committed to clear the cases he is handling, he is a public servant , but certain judges for the reasons known to them alone do not give the judgement in time and help the defaultering defendant.
    The appointee may be anybody should make the judge aware of his duties.

  11. Nem Singh says:

    Talking about to root out corruption is very eassy but in real truth it has entered in our blood shells. One person cannot do any thing otherwise we support him/her. May be there are thousands people in our Gov. machinery but without public support and cooperation of our wealthier it cant be possible. In day to day our life we read and heard from the people about illegal demands. If you pay reward then you got benefited otherwise faces problems.

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