How To Improve Process For Selection & Appointment Of Judges To Courts And Tribunals: Suggestions By AIFTP To The Supreme Court

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.


5 comments on “How To Improve Process For Selection & Appointment Of Judges To Courts And Tribunals: Suggestions By AIFTP To The Supreme Court
  1. Ramani Ram says:

    Great that honest, deserving and worthy people are elevated. There are brilliant mechanisms by which the same approach can be adopted for selecting ministers of state and centre. PRESENT SYSTEM OF VOTING SHOULD BE DISCARDED COMPLETELY. ALL THE POLITICAL PARTIES MUST BE DERECOGNISED.

    People with very high qualifications like IAS,IPS,IRS,IFS, etc. alone should be allowed to enter the fray. They should have excellent track record with brilliant experience.An exam may be conducted to select them. Other meritorious approaches can be adopted.

  2. The suggestion seems okay by some views of Joshi, Waghela and Bharatkumar be looked into.

    First and foremost, the judgeships need to be balanced with good to very good knowledge of the constitution of india is vital for the constitutional proprieties only decide on the value of the statutes in place, after all a lot of statutes are made by haphazard law making process to address short therm issues by the legislators who mostly do not sustain in the system like judges and legal community.

    Recommendations no doubt useful but that alone cannot do yeoman’s service in interpreting abilities of would be justices, after all higher court appointments need very great skills in interpretation skills.

    Some ITAT judicial members are reasonably good in interpretation of tax laws, not all, not because of their skill levels, but any slightly overwhelmed by Account members being senior to them by seniority, after all if members really not simply swayed by arguments but on their own they need to see how for the sections are really validly used by revenue authorities on their own interpretative skills as judicial members, wherever they see some problems, they need not be swayed by revenue might lose revenues, after all any court is not concerned by whether government loses the revenue but they need to be concerned whether the sections are rightly applied, if not they have to ensure the tax payer is protected after all it is not necessary the tax payer need necessarily appoint legal eagles to fight their issues, after all petitioner in person could appear with facts and he might not be good at the tax law as such.

    such well balanced judging members irrespective of their age and seniority need be considered for suitability for tax benches of the higher courts like high courts.

    Adam Smith rightly said.’the subjects of every state ought to contribute towards the support of government, as nearly as possible in proportion to their respective abilities.’

    He never favored a flat tax system, any taxation economist ought to know.

    Governments main responsibility is to be mostly confined to safeguarding society from violence and invasions, and ought to safeguard every member of society from ‘(any) injustice and oppression, and need to attend or providing some meaningful public works and institutions, ‘ it is not the business of governments to handle businesses as such for that might tilt its roles badly too from impartiality .

    That way Governance principles have to be read into constitution Art 265 – due process procedure need to be assessed by judges at higher judiciary, for that ITAT judicial members be prepared would be ideal, after all too big to fail concepts for giving bailouts to failing corporations, as that concept cut in the exchequer besides put tax payers in greater burdens, need be avoided by governments of today, as corporation sectors depend on loans and debts instead of equity funds, just thinking M&As and LBOs would make them ‘too big to fail’ and the government would give in to bail outs for them need to be carefully avoided, here the ITAT and like bodies ,as also higher judiciary could rightly warn the government in their opinions i believe.

    The experience in the last periods of economic history from 1920s till date exposure is needed in the judges especially in the area of taxation economics, indeed economic history is given a go by by giving excessive credence to econometrics that made a lot of problems due to high to very high risk exposures in which the governments have become a pawn..so the judges in their opinions need to high light, may be by Obiters.

    that kind of all round knowledge is expected in tax justice i believe that knowledge might give to members of ITATs to adore them if and when they are considered for higher judiciary what i believe after going through the world economic chaos of 19 and 20th and 1st about 2 decades of 21st century, after all prudential justice need to get on board today i humbly believe sirs..

    yea you can say what you think about what could be better yet, thanks

    Dr. Sivaram rightly contributes by opening the web. itatonline for getting broad based opinions from far and wide thanks to advancement of internet in the information explosion and implosion as every one need to help every form of governments to healthily to function so that last man is duly taken care of.

  3. Bharatkumar Pandya says:

    The suggestion of a due process for elevation of members of Tribunals to HC requires to be more concretely formalized. I think 1/3 of HC judges are appointed by ‘promotion’. Why not 1/20 th of ALL INDIA HC VACANCY not filled up by Tribunal members? Moreover, when practicing advocates/District judges can be appointed to the state HC, why lower level appointments to Tribunals need to be out of the state? Possibly relevant rule/judgment need review…

  4. B.S.Waghela says:

    Suggestions given are worth consideration.

  5. Ashwani Joshi says:

    A foolproof method is very difficult if not impossible. Black sheep do sneak in in every system. We don’t have such an x-ray machine as can separate milk from water. Suggestions given above are the best ones. Milk or mind will split when, is not known. The best is the jury
    system

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  1. […] may be noted that the AIFTP has already filed comprehensive suggestions in the matter. Further, the AIFTP was duly represented by Counsel during the hearing of the matter […]

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