Report No. 121
Technological Advances and its Use
8.1. The method for appointment so far followed has brought to surface one feature which has been agitating the minds of the experts and its indepth analysis has not revealed any objective criteria. The votaries of conferring exclusive power on the Chief Justice of a High Court to initiate the proposal for appointment have overlooked the fact that there is a tremendous amount of subjectivism in the proposals.
Without meaning any disrespect to the institution of Chief Justice, if proposal after proposal is examined, it would be next to impossible to ascertain with certainty the reasons why one is recommended and some others, equally competent, are excluded. To illustrate this point, one appointment may be examined without reference to names. A judge of a premier High Court was appointed as an Additional Judge on March 19, 1961. Later on, in the same year, another Judge was appointed in the same High Court on October 14, 1961.
At the relevant time in 1971-72, the relative position of Judges in the High Court to which they belonged was that the earlier appointee was at No. 2 and the later appointee was at No. 7. The later appointed Judge standing at S. No. 7 in the inter se seniority in the High Court Judges of that High Court was promoted to the Supreme Court on 19th July, 1971, and the one at No. 2 and earlier appointed was promoted to the Supreme Court on August 28, 1972. What rationale one can find in selecting a comparatively junior Judge over the senior Judge who was not only promoted within a year but ultimately became the Chief Justice of India?
The only rationale one can find is the wholly subjected evaluation of the relative merits by the then Chief Justice who considered the later appointee in the High Court with comparatively less experience better suited at the relevant time than the judge with a longer experience and later on, within a short time, brought the senior judge to the Supreme Court. Did the Senior Judge lack experience one year earlier and had to be passed over, and then acquired within a one year such extensive experience as to qualify him for promotion? The question do not answer to any rational explanation.
In another well known incident two Chief Justices had an unbridgeable difference in the evaluation of one Judge for elevation to Supreme Court. This approach also informs the selections in total disregard of standing of selectees in inter High Court and intra High Court seniority. When analysed in depth, the only answer that surfaces is that barring the total, subjective satisfaction of the Chief Justice of India, no other rational explanation can be offered for such performances.
This situation is equally discernible when a Chief Justice of a High Court selects lawyers from the Bar attached to the High Court. Without in any manner reflecting upon the honesty and integrity of a Chief Justice, one can cite example after example of such a nature. At least in one High Court, reportedly some members of the Bar declined to accept judgeship not because they were not inclined to accept the offer but because the offer came after someone else comparatively junior was offered it earlier.
This is true not of one High Court alone but of more than one High Court. Such subjectivism disclosing individual preferences is neither conducive to the healthy development of judicial tradition nor to strengthening the judiciary as an institution.
8.2. The question is whether this aspect can be remedied. In other words, are remedial measures available to deal with this canker of subjective personal preferences? As stated earlier, deliberations of a body composed of experts may be one such answer. But that body itself may also lack information or material for reaching conclusion qua individuals. Can the modern technological advances help in this behalf?
8.3. As of today, selectee for appointment is generally recommended in such vague terms as 'a good Judge', 'an efficient Judge with insight into the working of the Constitution'. Occasionally it is stated that he is a men of robust commonsense and sturdy independence and man of unquestionable integrity. If the writer of the opinion is asked how he has arrived at this conclusion, a clear void would be revealed. Occasionally another answer is that someone knowledgeable has so intimated to the Chief Justice. This is an unscientific approach and suffers from vagueness. The lacuna herein can be filled in.
8.4. It is time that mod6rn technological advances which have grazed past the judiciary as an institution should be taken advantage of. The Ministry of Justice As the centre and each High Court must have a computer programme. A member of the bar or a member of the district judiciary when within the age-group of 35-40 should be kept under close watch and date collected must be fed into a computer in the High Court as well as a counter-part in the Ministry of Law & Justice.
In respect of a member of the district judiciary, every judgment that is delivered and which has been dealt with in appeal by the High Court should be scientifically analysed with regard to his ability speed with which the case is disposed of, intimate knowledge of law, diction, rationality of conclusion and whether it is in tune with the philosophy of Constitution. All this must be continuously fed in the computer.
8.5. While dealing with a member of the bar, every case in which he appears and argues, the nature of his arguments may be collected from the judgments delivered and analysed to the same extent possible and fed in the computer. An additional column may provide for personality, bearing, court behaviour, etc.
8.6. When time comes to fill in vacancies in that High Court, the computer print out both with regard to the member of the judiciary as well as with regard to the member of the bar must be taken out and submitted to National Judicial Service Commission which will have adequate date to come to its own conclusion so as to choose the best available talent.
This data will be further supplemented by the expression of opinion of the Chief Justice of the High Court and of the three seniormost Judges of that High Court. The Law Commission is of the view that this approach will totally eliminate subjectivism or individual preferences unsupported by reason and logic and would provide adequate material to affirmatively reach conclusion one way or the other.
8.7. The approach indicated in the paragraph just preceding will provide an effective check against a recent unhealthy development in the field of judicial appointments. While those who have established practice at the Bar with attractive earnings are loathe to accept judgeship, yet there are numerous people keen to become High Court Judges. This apparent contradiction in the matter of appointment has deeper sociological implications which it is not necessary to analyse at this stage.
The unquestionable fact is that in a large number of States, numerous lawyers are keen to become High Court Judges; and, depending upon local tradition, in some States even lawyers with attractive practice are willing to become Judges. But as soon as a name becomes current as being under consideration letters-anonymous and pseudonymous-containing filthy and dirty allegations start pouring in to the powers that be.
This is not a figment of imagination of the Law Commission but the Law Commission has concrete material in this behalf. The same is not explicitly set out here as it may embarrass some Judges in position. But no one will be able to question this assertion of the Law Commission that as soon as a name is reported as being under consideration, that person becomes a victim of crass vilification.
When it comes to a candidate of fair sex, the vilification stigmatises the character and makes life intolerable. In the final analysis, the judgeship may or may not be awarded but the victimisation on account of the name being under consideration causes untold hardship to some members of the Bar. One cannot easily rule out the possibility of some persons having suffered on this account.
8.8. Now if computerisation programme is undertaken and a watch is being kept over up coming members of the Bar as well as members of the judicial service, then when his name is considered at an appropriate stage, the chances of his vilification would be considerably reduced. This will be an additional advantage over and above getting objective material for scientific assessment of the person concerned.
8.9. Once subjectivism and individual preferences unsupported by objective data are eliminated and instead of an individual, a body deliberates over a proposal and makes recommendation, which recommendation, as stated earlier, would be more or less binding, obviously the credibility gap which has widened today would be narrowed, if not wholly filled in. At any rate, the charge of arbitrariness which can be readily read into individual preferences of a subjective nature could be easily repelled and ruled out when a body with objective data deals with the question of appointment.
This new model would, therefore, satisfy what was constitutionally expected, namely, that the superior judiciary would be manned by first rate men, efficient knowledgeable and persons of unquestioned integrity, selected by a body which cannot be accused of arbitrariness. The Law Commission recommends accordingly.