How judges are appointed and how Rajya Sabha wants them to be appointed

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The Rajya Sabha on Thursday witnessed one of the most exhaustive debates in recent memory on the appointment of judges. The following are the basic issues that led to the debate.

How are judges selected under the collegium system now?

In the high courts, the process is initiated by the respective chief justices. In the Supreme Court, the Chief Justice of India (CJI) takes the initiative. The final decision is taken by five Supreme Court judges, including the CJI.

A person should have practised at least 10 years as a lawyer to become a high court judge. The chief justice of the high court, with the help of two other senior-most judges, draws up a panel of prospective candidates. There is no system of public intimation or advertisements eliciting applications for the posts. After examining the credentials of the judges on factors such as competence and integrity and state intelligence inputs, the high court chief justice forwards the names of the prospective judges to the CJI for confirmation.

The CJI consults the collegium of four other senior-most judges of the apex court. The CJI and the collegium can approve or reject the names.

If the collegium approves the names, they are sent to the President of India through the Union government for appointments.

Supreme Court judges are appointed from among the chief justices of the various high courts or the senior-most presiding judges of the high courts.

The Supreme Court has the prerogative of appointing prominent lawyers with over 10 years’ experience as a judge of the apex court. Justice Santosh Hegde and Justice Kuldeep Singh (both have retired) were appointed to the Supreme Court directly from the bar where they were practising. But the convention had been stopped since then

Does the government have any role in the selection of the judges?

The government does not have the final say in the matter as the entire power is vested in the collegium and the CJI

What if the government does not agree with the names suggested by the collegium?

There is no alternative but to accept the collegium’s decision. The Union government, through the law ministry, can raise queries on suitability or eligibility of the candidates. Beyond this, the government can do little

Law minister Kapil Sibal said the Supreme Court “rewrote” the Constitution in 1993, referring to the introduction of the collegium system that year. Is that correct?

Yes. In 1993, in what is popularly known as the “Advocates On Record” case, a nine-judge Constitution bench of the Supreme Court ruled that the statute had given the power and primacy of appointments of judges to the judiciary to insulate it from executive or legislative control and to ensure its absolute independence. The bench had given the ruling on a petition filed by the Advocates on Record Association, relating to disputes on transfer and appointments of judges.

Advocates on Record is a designated group in the Supreme Court. It alone has the right to file any petition in the apex court

What was the system in existence before 1993?

Since the inception of the Indian Constitution, there has been no formal or codified system to appoint judges. In other words, an informal process existed then, too, but the executive had a role. Judges were appointed largely through consultations between the Chief Justice of India and the Union government. The judiciary and the executive were more or less equal partners in the consultation process

What is the new law trying to do?

Parliament is trying to ensure a role by the executive and indirect role by leader of Opposition in the Lok Sabha. Under the new proposal, the selection panel will have the Union law minister and two eminent persons from different walks of life, besides the CJI and two senior-most judges. The names of the eminent persons will be suggested by a separate panel of the Prime Minister, the CJI and leader of Opposition in the Lok Sabha.

The new system, if clears all the hurdles, will have six persons, unlike the five earlier. Of the six, three will not be apex court judges, unlike the existing system where all the five persons are Supreme Court judges

Sibal spoke of bhai-bhatijagiri in the context of relatives of judges practising as lawyers. Are there any norms on this?

There is no statutory or constitutional bar on kith and kin of judges practising in the same courts. Most judges, upholding the highest standards of judicial ethics and propriety, ensure that they do not preside over cases handled by the relatives

Arun Jaitley said “the desire of a post-retirement job influences pre-retirement judgments”. Are there any norms governing post-retirement jobs?

There is no ban on post-retirement jobs for judges. However, judges who retire cannot practise in the high court where they had presided over cases. In the case of the Supreme Court, the judges cannot practise once they have retired. They can take up arbitration-related assignments.

Several judges do get post-retirement jobs in a host of quasi-judicial or constitutional bodies across the country. This is because the act under which the tribunals or quasi-judicial bodies are constituted mandates that those heading the posts must invariably be a sitting or retired judge of the high court or Supreme Court. Some examples are the National Human Rights Commission, the State Human Rights Commission, tribunal TDSAT, the Competition Commission of India and the Armed Forces Tribunal

What is the Supreme Court’s view on the new bill?

Successive CJIs and the present incumbent, P. Sathasivam, have strongly opposed any tinkering with the collegium system. The advocates or the bar community are also fiercely opposed to any executive involvement in the appointment process on the ground that it would erode the independence of the judiciary. Justice Sathasivam had earlier told The Telegraph: “The government cannot include their names as, by and large, the high court and the Supreme Court collegium keep everything in mind while giving representations to all sections. Law officers like advocate- generals, additional advocate- generals, central government law officers and government pleaders are provided representation in the appointments.”