The lesson from a court appointment drama

Context: 

The recent war of words between the higher judiciary and the political executive has revolved around the question of who has the power to appoint judges to the High Courts and the Supreme Court of India.

Procedure:

• Under the “collegium system” the three senior-most judges of the Supreme Court make recommendations for appointments to High Courts; while the government may provide inputs, and ask for reconsideration, if a recommendation is reiterated, then formally, the government is bound to accept it.

L.Victoria Gowri issue:

• This appointment saw a reversal of the general pattern. After the collegium recommended her name for judgeship, a petition was filed in the Supreme Court challenging this appointment, on the basis that she had, allegedly, engaged in “hate speech” against Muslims and Christians. 

Problem of Opacity:

• The controversy indicates certain continuing, structural problems with the process of judicial appointments. 

International Precedents:

• The functioning of the collegium in other democratic countries, such as the United States, South Africa, or Kenya, the specific processes are different,though  they are all open. The names of the judicial candidates are publicly known before the formal commencement of the selection process. 
• But, in India, the candidate’s name is effectively made public after their selection by the collegium. The selection process is behind closed doors, where the parties involved are the collegium and the government (through the Intelligence Bureau). 
• This not only has transparency costs, but also, the costs are asymmetrical.

A Janus-faced collegium:

• Once a collegium recommendation has been made, the only way of contesting it is through a legal challenge. However, that challenge must be before the Supreme Court itself, leading to a set of awkward situations. 
• In South Africa proceedings of the judicial appointments commission have been subjected to judicial review which works as a system of checks and balances, the values of transparency and publicity.
• When the judiciary tries to play different and functionally independent roles, correction becomes very difficult.
• The proceedings are opaque, and the only other party is the government; the government can influence the materials on the basis of which the collegium determines “suitability”. 
• It should be immediately obvious that this is severely detrimental to judicial independence.

The roots of the problem in Our Judicial Appointments:

• The present structure is problematic both in principle but also because it asymmetrically benefits the political executive. 

Conclusion:

• We need an appointments process that genuinely safeguards judicial independence from executive dominance.         

                                                                                                                               News Source: The Hindu