The AIFTP has always been at the forefront in matters relating to judicial reforms. Pursuant to the judgement of the Supreme Court in Supreme Court Advocates-on-Record Association vs. UOI striking down the National Judicial Appointments Commission Act and upholding the Collegium system of appointment of judges and inviting suggestions from all stakeholders on the measures to be taken to improve the Collegium system, the AIFTP has filed an application in the Supreme Court requesting permission to be impleaded in the matter and to offer suggestions.
The suggestions offered by the AIFTP are far-reaching and if accepted by the Hon’ble Court, would have a positive impact on the functioning of the judiciary including the ITAT. One of the suggestions relates to the functioning of the ITAT. It is pointed out that presently there is no institutionalized mechanism for the elevation of ITAT Members to the High Court. It is suggested that a mechanism be set up which could provide reasonable assurance to the deserving Members of the Tribunal that their good work will be recognized and they can expect elevation to the High Court. It is also pointed out that as per the posting/ transfer procedure, a newly appointed ITAT Member is not posted in the State where he or she was practicing. Because of this, the collegium of the High Court concerned does not have adequate background information about the ITAT Member and finds it difficult to judge whether the person has the proper credentials and is worthy of being elevated. The AIFTP has suggested that this problem can be overcome by the Collegium of the High Court devising an appropriate internal mechanism for obtaining feedback about the proposed candidates from the professionals who regularly appear the before the Tribunal. The professionals are in the position to provide accurate and unbiased information and opinion about the credentials of the Member and whether he or she is fit for the higher post. It is pointed out that if this process is adopted, deserving candidates will be attracted to join the ITAT, CESTAT & other Tribunals and this will further the cause of “Sulabh Nyay Satvar Nyay“.
There are several other suggestions of importance offered by the AIFTP.
The suggestions of the AIFTP for the improvement of the “collegium system” are as under:
a) Selection of High Court Judges
i) Selection of judges: At the High Court level, it should be determined by the Collegium headed by the Chief Justice of the High Court and four other senior most Judges.
ii) The Hon’ble Judges should be appointed on the basis of pure merit and should be of unimpeachable integrity and outstanding competence in judicial matters.
iii) Selection can be by way of:
(1) Invitation from the judges themselves,
(2) By way of application by the members of the Bar and
(3) By way of recommendation from the presiding officers of the subordinate Courts/Tribunals within that jurisdiction of the Judicial members of that Court/Tribunal who are qualified to become judges as per law.
(4)Criteria for eligibility for appointment should be widely available.
(5) Eligibility criteria may be prescribed, such as:
(a) Reported cases involving important issues argued by the Applicant;
(b) Details of income to be declared for last five years by practicing lawyers;
(c) Recommendations of at least three Senior Advocates or Advocates having more than 30 years of practice in that High Court may also be considered;
(d) Importantly, contribution to the development of the profession made by the lawyer may be given additional weightage in the selection process.
(e) Person ought to have good reputation. For e.g. if from the Bar, he should have a reputation amongst his peers and his qualities ought to be well recognized in the respective High Court
(6) In the era of specialization, persons who are well conversant with certain specialized areas of law such as Taxation, Arbitration, PIL, IPR etc. deserve to be considered for appointment in the High Courts. In the Income Tax Appellate Tribunal and CESTAT for instance, certain Judicial Members deserve to be considered for appointment as High Court Judges.
(7) As per the transfer procedure, a professional appearing before the Income-Tax Appellate Tribunal or CESTAT is not posted as a 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 and CESTAT. Thus, the Collegium of the High Court may, in consultation with the President of Income Tax Appellate Tribunal and CESTAT devise an appropriate internal mechanism for obtaining feedback about the proposed candidates. View of Senior professionals of integrity who regularly appear the before Income-Tax Appellate Tribunal may also be considered. This will help attract deserving candidates of the Income Tax Appellate Tribunal, CESTAT & other Tribunals to the High Court.
(8) After receipt of names, whether by way of invitation, application/nomination as aforesaid, the Collegium should initially vet the candidates themselves to determine if some applicant is prima facie disqualified, with regard to application criteria itself.
(9) Thereafter the Collegium should broaden the discussion and invite views of 3 – 5 leading members of the Bar from that High Court, (perhaps including the Attorney General, Advocate General) provided such members are known for their integrity, independence, etc.
(10) Thereafter the Collegium may then proceed to consider the candidates (who have received favourable recommendations in the wider consultation process) and come up with its final list that is to be forwarded to the Hon’ble Supreme Court.
(11) The Supreme Court Collegium thereafter, in considering the list forwarded by the High Court, if it seeks to reject the candidates duly recommended by the wider consultation process, to again consult the leading members of the Bar of the respective High Courts which had earlier been consulted and the High Court Collegium, before proceeding suo moto to reject the names/nomination. If the candidate is to be accepted the above consultation process with the Bar may not be repeated, unless some clarifications are required.
6) Priority list of persons worthy to be elevated be prepared, to expedite in case of vacancies.
7) Vacancies should be filled up expeditiously and in no case more than 10% to remain vacant.
8) Elevation to Supreme Court
1) Collegiums for the Supreme Court – Chief Justice and six senior judges. Opinion of such judges be considered, who have been judges in the concerned High Court.
2) In elevating the judges the Collegium should keep the following in mind at every stage of the process:
i. Integrity and independence of the individual concerned,
ii. Independence must be tested on the anvil whether the individual can withstand pressure from all the sections including the executive, corporates, commercial or any other vested interest,
iii. Person ought to be distant from or capable of separating any ideology while acting as a judge.