Report No. 121
6.11. A slightly different model is available for examination. The model suggested to set up a superior council of judiciary, consisting of President of the Republic as Chairman, the Minister of Law and Justice as well as Chief Justice of India as Vice-Chairman, two other Judges of the Supreme Court, two Chief Justices of High Courts four persons to be nominated by the President and four persons to be elected by the Parliament. This council has to be an all purpose Council to be entrusted with all administrative matters, including selection, appointment, transfer and even disciplinary matters relating to judiciary.1
1. J. Minnatur Superior Council of Judiciary, 1976 Mad IJ 55 (60).
6.12. Shri Y.V. Chandrachud, Chief Justice of India (1978-85), while inaugurating a seminar at Patna on February 26, 1983, under the auspices of Bihar State Bar Council in collaboration with the Bar Council of India Trust on 'The Erosion of Judiciary and Remedial Measures', frankly confessed that the present procedure for selection and appointment of Judges to be superior judiciary is "outmoded" and should be "given a decent burial".
In his view, the collegium must comprise of three Judges, two representatives of the Bar, two of the Government and two of the opposition. He was of the opinion that a recommendation by this collegium could be far more credible and acceptable than by a single individual in the narrow confines and secrecy of his chamber.1
1. Quoted in R.K. Hegde, The Judiciary Today: A Plea for Collegium, p. 38.
6.13. One Chief Minister of a State is of the opinion that the constitutional provisions for appointment of High Court Judges embodied in the Constitution have proved to be too frail. 'He strongly advocated setting up of a collegium to make recommendations to the President for making appointment of Judges1.
6.14. An eminent legal academic, being of the view that the present mechanism has granted a sort of weightage to the executive in the matter of selection of Judges for the superior judiciary, pleads for setting up of a collegium for judicial posts which, according to him, is an investment in democracy.1 The collegium for the Supreme Court, according to the author, should consist of the following:
(1) the President of India;
(2) the Speaker of the Lok Sabha;
(3) the Chairman of the Rajya Sabha;
(4) the Leader of the Opposition (if there be one);
(5) the Minister for Law and Justice, Government of India;
(6) the Chief Justice of India;
(7) five senior Judges of the Supreme Court;
(8) the Attorney-General of India.
These are to be the members of the collegium by virtue of their office. The non-official component of the collegium should comprise of members including at least one woman and one person belonging to Scheduled Caste and one to Scheduled Tribe nationally acknowledged for fulfilling the fundamental duties enshrined in Article 51A for sustained work towards the promotion and protection of the constitutional and legal rights of the weaker sections of the society referred to in Article 46 of the Constitution.
The term of each member of the collegium should be of five years. The collegium, according to him for the High Court Justices should retain the non-official component but its ex officio membership may vary to include the Governor, the Chief Minister, five senior Justices of the High Court and Speakers of the Assembly. Necessary amendments to Articles 124 and 217 will have to be made but a further provision should be made that, as far as possible, the decisions of the collegial must be unanimous and expeditious and the same must be binding on the Government.
One feature of this approach deserves special mention not for what is mentioned but what it significantly omits in that the author is not in favour of giving representation to the organised Bar on the Collegium.
1. U. Baxi Collegium for Judicial Posts: An investment in Democracy, The Times of India August 5, 1986.
6.15. The Bar Council of India had expressed an opinion in 1979 that of all the segments of the society, the members of the Bar are pre-eminently suited to judge persons who should be appointed as Judges of the High Court and Supreme Court and, therefore, any reform or modification in the model for selection and appointment of Judges of the High Court and the Supreme Court must have adequate representation of the organised bar.1
1. N.M. Madhava Menon Judicial Appointments and Transfers, 8 JBCI 137.
6.16. In U.K. where the power to select and appoint Judges unquestionably vests in the executive and it is commonly believed that the system has worked well, recently opinions were expressed that there must be an advisory body to assist the Lord Chancellor in the matter of selection of personnel for appointment to higher judiciary. In 1972, the Justice Sub-Committee on the Judiciary recommended that while the Lord Chancellor should retain control of the appointment machinery, he should be helped in his task by a small advisory Appointments Committee.
The exact composition of the Committee is not set out in the report. On the all important question of composition of the Committee the view was that it should include representatives of the Law Society, the Bar, academic lawyers, the judiciary and perhaps some lay members as, for example, highly trained and experienced personnel officers skilled in selection procedures1. Under the proposed scheme, interested bodies could make recommendations to the Appointments Committee and even persons seeking judicial appointment may submit their names to it.
The Lord Chancellor would be free to reject or accept the recommendations of the Committee and even would be free to select anyone whose name is not found in the List recommended by the Committee. But in such a case he would be under an obligation to consider the recommendation of the Committee and to submit his own candidates to the Committee for their comments and would not be able to make appointments without consulting them or applying his mind to the views expressed by them.
Even earlier, a committee, styled as the Machinery of Government Committee, in the year 1918 recommended in its report that the Home Office should become a Ministry of Justice and that the Lord Chancellor should be required in recommending persons for judgeship to consult a Committee consisting of the Prime Minister, the Minister of Justice, ex Lord Chancellor and the Lord Chief Justice. Therefore, the debate about setting up a committee to assist the Lord Chancellor has been in the offing for more than half a century.
It must be confessed that there is also a body of opinion that no change is necessary in the system of appointment to judicial offices as proposed by the Sub-Committee. However, following the introduction of the new scheme by the Courts Act, 1971, those knowledgeable are veering round to the view that the question of reform must be carefully considered and that some improvement in the existing system is necessary. The Committee has examined the question of appointment to superior courts, the circuit benches and even courts below them.
Those who advocate the change assert that the present procedure is too much embedded in secrecy and that the acceptance and rejection are unsupported by reasons. They say that the selection procedures should not only be painstaking and fair but seem to be so. There is too much subjectivism in this procedure as the whole thing depends upon the opinion of the Lord Chancellor.
With reference to the proposal for a committee, an apprehension was voiced that such a broad based decision making body may encourage lobbying and generate pressure groups. It was also feared that, as the opinion of the Members of the Committee may vary, the horse trading would become inevitable. Some doubt was voiced even with regard to the composition of the Committee.
1. Shimon Shetreet Judges on Trial: A Study of the Appointment and Accountability of English Judiciary, 393-404 (1976).
6.17. President of United States of America has established a circuit judges nominating Commission to recommend names of the best qualified persons for appointment to the United States Court of Appeal. Under the Presidential Order thirteen panels were to be set up. Each panel will have not more than eleven members, including its Chairman and must include members of both sexes, members of minority groups, and approximately equal number of lawyers and non-lawyers.
The function of each panel and the standard for selection to be followed have been set out in the order itself. Briefly the standards for selection are that the recommendee must have good standing, must possess and have good reputation for integrity and good character, must be enjoying sound health and must have outstanding legal ability and commitment to equal justice under law1.
1. H.J. Abraham The Judicial Process, 30 (5th Edn., 1986).
6.18. The Chief Justice of Australia, somewhere in July 1977, advocated that the time is now ripe for a Judicial Appointments Committee to be set up in Australia. This view was conversant in the backdrop of the feeling that the Australian system for selection and appointment of Judges provided an opportunity for political influence. With a view to eliminating the same, the appointment must be made by, or pursuant to, a recommendation from Judicial Appointments Committee to be composed of Judges, Lawyers and some laymen1.
1. Garfield Barwick The State of Australian Judicature, 51 Aus LJ 480.
6.19. Similarly, the Royal Commission on Courts, chaired by Justice Beattle, who later on became Governor-General of New Zealand, recommended that a Judicial Commission should consider all judicial appointments, including appointment of High Court Judges1.
1. Harry Gibbs The Appointment of Judges, 61 Aus LJ, 7, 8.
6.20. The conclusion is inescapable that vital changes will have to be made in the existing model. The changes will not be for the sake of changes, but the changes will be introduced with a view to eliminating the infirmities in the scheme and make if functionally operational. New Model will be devised with this end in view.