Latest news with #NationalJudicialAppointmentsCommission
Mint
21-05-2025
- Politics
- Mint
India's judicial rebirth: Let's fix how we select and remove judges
India's judiciary, a public institution, is working under a secretive collegium system and a complex removal process which doesn't inspire public trust. Scandals like Justice Yashwant Varma's 2025 burnt currency note allegations fuel distrust. A Judicial Service Commission (JSC), inspired by South Africa and Kenya's transparent models, could regulate appointments and removals with oversight by the Rajya Sabha. We propose a bold JSC to end the 'uncle judge syndrome' and also rid India's judiciary of bad judges to deliver justice reliably. Also Read: Call of justice: India should reform its process for the removal of judges India's flawed systems: The current collegium for judge selection, established through the 'Judges Cases' (1981-1998), redefined 'consultation" under the Constitution's Article 124 as 'concurrence," giving judges control over appointments to counter Emergency-era (1975-77) executive overreach. A 2015 Supreme Court ruling struck down the National Judicial Appointments Commission (NJAC) Act, which proposed a selection panel that would include the Chief Justice of India (CJI), law minister, judges and eminent persons, preserving judicial primacy. Justice Chelameswar's 2015 dissent highlighted the collegium's opacity: no records, irregular meetings and leaks. Judge removal is nearly impossible under Articles 124(4) and 218, requiring a motion moved by 100 Lok Sabha or 50 Rajya Sabha members, an inquiry and a two-thirds majority in both Houses for 'proved misbehaviour or incapacity." Only two judges—V. Ramaswami and Soumitra Sen—have faced such a motion in India so far and both resigned before the process was completed. Also Read: The judiciary cannot turn into a haven for the corrupt Cost of inaction: The collegium's secrecy breeds familiarity, often called the 'uncle judge syndrome.' A 2012 study by George Gadbois found candidates with judicial family ties 37% more likely to be appointed. This lack of diversity alienates litigants, like a rural woman seeking justice for domestic abuse or a Dalit entrepreneur fighting business discrimination. These individuals, often from marginalized communities, face systemic barriers and may feel that judges—mostly urban upper-caste men—are unable to relate to their struggles, leading to doubts over fairness. The 2019 CPIO vs Subhash Chandra Agarwal ruling mandated access to collegium decisions under India's Right to Information, but compliance has been weak. From the 2012 cash-for-bail scandal to recent allegations, it is clear that corruption persists. India's long-drawn judge removal process protects wrongdoers, undermining the rule of law. Also Read: A judiciary that refrains from judicial overreach can better serve the cause of justice Let's consider South Africa's JSC. How does it function? Under Section 178 of its 1996 Constitution, the JSC has 23 members: the chief justice, members of parliament, lawyers, academics and presidential nominees, with public nominations for civil society inputs. It advertises vacancies, shortlists candidates and conducts public interviews, recommending appointees based on merit and diversity (Section 174). By 2022, 45% of judges were South African by ethnic ancestry. Removals start with the Judicial Conduct Committee, which handles minor complaints and issues warnings. Serious cases go to a Judicial Conduct Tribunal, which investigates and recommends removal to the JSC. The JSC's decision is final, subject to oversight by a parliamentary committee. Consider a specific case, that of South African judge, John Hlophe (2008-2024). In 2008, the Constitutional Court accused Western Cape Judge President John Hlophe of trying to influence a case involving former President Jacob Zuma. Civil society groups, including Freedom Under Law, filed complaints with the JSC, demanding action. The JCC initially cleared Hlophe, but a public outcry led to further scrutiny. In 2020, Deputy Judge President Patricia Goliath flagged Hlophe's misconduct, including racist remarks. After a tribunal investigation, the JSC recommended his removal in 2024, approved by a parliamentary committee. Also Read: Complete justice: Article 142 should be invoked only in truly rare cases Accountability lessons: Kenya too has a similar structure and also follows Common Law principles like South Africa and India. Other democracies show how to hold judges accountable without a gridlock. In the US, judges face removal for misconduct, with its Congress and civil society ensuring transparency. Germany's parliament and courts, with public inputs, remove judges who violate fundamental ethical principles. The UK uses parliamentary panels, informed by civil society, to address judicial missteps. Nigeria's judicial council, backed by legislative oversight and public advocacy, flags and removes corrupt judges. Unlike India's complex removal process, these systems empower elected representatives and citizens to act decisively, balancing judicial independence with accountability and offering India a blueprint. India needs a judicial service commission: A JSC modelled on South Africa and Kenya could transform India's system. Led by the CJI, it should include judges, the law minister, academics and civil society representatives to ensure diverse perspectives. The JSC should advertise vacancies, shortlist candidates via public interviews and recommend appointees. Civil society could nominate candidates and offer feedback. For removals, the JSC would investigate complaints (including citizen petitions), refer serious cases to a tribunal and recommend removals to the President, with oversight by the relevant Rajya Sabha parliamentary standing committee to ensure fairness and prevent politicization. This panel should review JSC processes, hold public hearings and report to Parliament, thus ensuring transparency. Critics fear politicization, but transparency and civil society involvement would mitigate this risk. Justice Louis Brandeis' truism, 'Sunlight is the best disinfectant," would apply. A judiciary for all: India's judiciary must reflect its social diversity and earn trust. Adopting South Africa and Kenya's JSC models can reform appointments and removals. The judiciary's black robes must not conceal corruption or elitism. A JSC, with stakeholders like civil society, can end the 'uncle judge syndrome,' let in sunlight and ensure a judiciary that upholds the rule of law for every Indian. The authors are, respectively, vice president of Pune International Centre and secretary general of CUTS International.
Deccan Herald
08-05-2025
- Business
- Deccan Herald
Key reform towards judicial transparency
The Supreme Court's decision to make public the assets held by 21 of its 33 sitting judges and publish the process of appointment of judges through collegium recommendations for the past four years is a welcome step towards judicial transparency. The decision has come at a time when a cash haul at a Delhi high court judge's home has raised questions about the integrity of the judiciary. There has also been criticism about the process of appointment of judges. In this context, the top court has done well to make public the entire process of appointments, uploading the details on its website. These details include the names of judges recommended by the collegium, their relation to sitting or retired judges, and the inputs received from the Central and state governments. It also uploaded statements of its judges' assets, about a month after deciding to make the discovery row: Justice Varma likely to face impeachment as CJI forwards inquiry panel report to President, of details about the collegium's decisions will help to counter the criticism that the appointment of judges is a largely opaque system. The executive and the judiciary have differed on the system of appointments to the higher judiciary, and the government has not always accepted the collegium's recommendations. The government, still, cannot be expected to change its position after the publication of details regarding the appointments. It may be intended to correct the perception that the appointments are arbitrary and influenced by nepotism. Allegations of nepotism in collegium appointments and misconduct and corruption on the part of judges have recently led to a renewed focus on the National Judicial Appointments Commission (NJAC) Act, which the Supreme Court struck down in 2015. The disclosures may also be seen as a reaffirmation of the court's position that it would not accept any complaints about the collegium system and would stick with public listing of assets, including those of Chief Justice of India (CJI) Sanjiv Khanna and the next three CJIs-in-waiting, will help to boost public trust in the higher judiciary. According to the court, the remaining disclosures will be made when the relevant information is available. The disclosures can facilitate scrutiny of the details. However, it is important to ensure the continuance of these measures – the disclosures should be an annual exercise. The judiciary, despite the recent questions regarding its integrity, is an institution that has retained credibility. It needs to be maintained and strengthened.
The Hindu
22-04-2025
- Politics
- The Hindu
Judiciary's place atop the pyramid
The story so far: Vice-President Jagdeep Dhankhar recently raised certain issues with respect to the independence of the judiciary, its powers of judicial review and the judgment prescribing timelines to the President and Governor for their actions. What is the current context? The Vice-President expressed his views on various issues surrounding judiciary in a recent event. Firstly, he talked about the lack of transparency in the inquiry being conducted by a committee of judges in the aftermath of the recovery of huge piles of cash at a Delhi High Court Judge's residence. He questioned the legality of the procedure being followed in such cases that is not laid down under any law made by Parliament. Secondly, he remarked about the recent judgment of the Supreme Court, in which the court had prescribed timelines for the President and Governors to take action on State legislations. The court had ruled that it could issue a writ of 'Mandamus' to these high constitutional offices in the event of inaction or inordinate delays. Third, he raised concerns about lack of accountability of judiciary towards the public at large, unlike the legislature and executive. It was in the context of judicial review of legislation by Constitutional Benches as well as orders passed that encroach upon the executive domain. The provisions of Article 145(3), which require a minimum of five judges for adjudicating on constitutional validity in any matter, were made in 1950 when the total strength of the court was eight judges. He suggested that it may need to be revisited as the present strength is 34. Finally, he opined that the top court has been utilising its extraordinary power under Article 142 (to provide complete justice in any case), in a way that undermines representative democracy. A critical analysis There have been views that the speech by the Vice-President doesn't behove the constitutional and ceremonial office that he holds. A critical analysis of the speech presents us with arguments in support and against the observations. Apprehension about the opaqueness of inquiries conducted by the judiciary in the case of alleged misbehaviour by judges is widely shared by the common public. The Chief Justice of India should devise a procedure that provides for utmost transparency in such cases to instil confidence in the rule of law. One of the underlying root causes for various issues concerning the judiciary is lack of accountability and transparency in appointments through the collegium process. A broad-based National Judicial Appointments Commission, with the CJI being provided a veto to have final say in the appointment process, would make the selection process more transparent and inclusive without compromising on the independence of the judiciary. However, the recent order of the Supreme Court prescribing timelines to the President and Governors was well within its powers of upholding the constitutional principles. The two judges in this case had arrived at their conclusions based on various Constitution Bench judgments decided earlier. It is pertinent to note that similar timelines have also been provided in the Office Memorandum prepared by the Home Ministry in February 2016. Similarly, 'judicial activism' by the courts, including its use of Article 142, has contributed significantly to providing justice to the needy as well as holding the executive accountable. Some notable orders under Article 142 include compensation for victims of Bhopal gas tragedy (1989), guidelines against sexual harassment at work place (1997), cancellation of coal-block licenses that were allegedly improperly allocated (2014), permanent commission of women officers in armed forces (2024), and directives to public officials with respect to demolitions (2024). Further, considering the precedence developed in the past seven decades and pendency of cases in the Supreme Court, the current requirement of five judges for a Constitution Bench may be optimum. Judicial review and its independence Parliamentary democracy works on the principle that the executive is accountable to the legislature, which in turn is answerable to the people in every election. However, it is the judiciary which is the independent branch that upholds the Constitution and its principles in governance. The doctrine of Parliamentary sovereignty is associated with the British Parliament. This is because there is no written constitution in the U.K. and Parliamentary laws are supreme for governance of the country. On the other hand, the concept of judicial supremacy is associated with the U.S. It is because the American Supreme Court has wide powers in interpreting their constitution as per 'due process of law'. The Indian Constitutional scheme is a synthesis of Parliamentary Sovereignty and Judicial Supremacy. 'Judicial review' has been declared as a 'basic structure' of the Constitution in various judgments of the Supreme Court that has reinforced 'Constitutional sovereignty'. All the branches of governance should uphold the constitutional values through healthy separation of powers rather than confrontation. Rangarajan R. is a former IAS officer and author of 'Courseware on Polity Simplified'. He currently trains at Officers IAS Academy. Views expressed are personal.
