Cracks in the Process

The recent controversy surrounding Delhi High Court Judge Justice Yashwant Varma has put the spotlight on the appointment and integrity of judges in India's judicial system. The discovery of "sacks" of half-burnt currency notes at his residence triggered a swift response from the Chief Justice of the Delhi High Court, who requested a thorough investigation by the Chief Justice of India.

The Supreme Court's internal investigation confirmed the allegations against Justice Varma, leading to the formation of a three-member panel of judges to investigate the matter further. The Supreme Court collegium has also proposed transferring Justice Varma to the Allahabad High Court, his parent court.

Judicial Appointment Process in India

In India, judges are appointed through a collegium system, where the Chief Justice and senior judges recommend candidates to the President. This process has faced criticism and scrutiny, with concerns about transparency and accountability. The controversy raises questions about the effectiveness of the current system and the need for reforms to ensure the integrity and impartiality of the judiciary. The outcome of the investigation and the proposed transfer of Justice Varma will be closely watched, as they may have implications for the judicial system as a whole.

The controversy surrounding Delhi High Court Judge Justice Yashwant Varma has reignited debates about the National Judicial Appointments Commission (NJAC) and the current collegium system. The Rajya Sabha Chairman has called the issue "serious" and referenced the Supreme Court's decision to strike down the NJAC Act.

The controversy raises questions about balancing judicial independence with accountability. As Congress leader Venugopal noted, "When trust erodes, where will the citizens turn?" The issue has tarnished the image of the judicial system, prompting concerns about its credibility. The appointment of judges in India has undergone significant changes since the Constitution's inception. Initially, the President made appointments on the advice of the Council of Ministers, in consultation with the Chief Justice of India. However, this executive-led system raised concerns about executive influence and undermining merit.

The Law Commission of India as early as 1958 argued that this system did not allow for the best talent to be appointed to the Court. The Supreme Court's 1993 judgment in the Advocates on Record Association v. Union of India case marked a significant shift, ruling that "consultation" meant "concurrence," giving the Chief Justice and senior judges a greater role in appointments.

This led to the establishment of the Collegium system, where the Chief Justice and four senior-most judges recommend candidates to the President. The Collegium system has faced criticism for lack of transparency and accountability issues. The system has also been criticized for allowing nepotism, with critics arguing that it enables the appointment of relatives of sitting judges. To address these concerns, reviving NJAC, finalizing the Memorandum of Procedure, and increasing transparency in the appointment process could be considered. Establishing an All India Judicial Service may also help improve the quality of lower judiciary judges.

Concerns with the Collegium System

The collegium-led appointment system, where the Chief Justice of India has the final say, has faced criticism for potential judicial manipulation. Concerns about corruption and misconduct within the judiciary have been raised, including allegations against judges like Justice Dinakaran, who was appointed despite facing inquiries.

Judicial manipulation can take many forms, including administrative corruption, where judicial processes are manipulated, and "Uncle Judge Syndrome," where lawyers related to judges appear before their relatives, creating a network that influences judicial outcomes.

In an effort to ensure judicial accountability and transparency, Parliament introduced the 99th Amendment, establishing the National Judicial Appointment Committee (NJAC). The NJAC consisted of the Chief Justice of India, two senior judges, two eminent persons from civil society, and the Union Minister of Law and Justice. However, the Supreme Court declared the NJAC unconstitutional, citing concerns about executive overreach and judicial independence, and relying on Articles 124 and 217 of the Constitution. The Court also observed that judicial supremacy is part of the unamendable "basic structure of the Constitution".

In the current collegium system, the government's role is limited to conducting an Intelligence Bureau inquiry on potential judges and raising objections or seeking clarifications on the collegium's choices. However, if the collegium reiterates its recommendations, the government has no alternative but to accept them. This arrangement has been criticized for lacking transparency and accountability. The Second Administrative Reforms Committee noted that the collegium system is unprecedented, and there is no mechanism to check the reasonableness of appointments.

International Models of Judicial Appointments

A look at the appointment procedures in other countries provides valuable insights. In France, the judiciary enjoys primacy over the executive in the appointment process. A constitutional body makes recommendations to the President, and the body consists of the President, Minister of Justice, and 16 members. Notably, 12 of these members are involved in recommending sitting judges and public prosecutors, with 5 sitting judges and one public prosecutor playing a key role. This highlights the significant role of the judiciary in the appointment procedure in France. The process of appointing judges varies significantly across countries, reflecting different approaches to balancing judicial independence and accountability.

In the UK, the Judicial Appointments Commission (JAC) plays a crucial role in selecting judges. This autonomous body shortlists candidates and consults with judges and heads of jurisdiction, ensuring a fair and transparent process. A separate entity, the Judicial Appointments Conduct and Ombudsman, handles complaints related to appointments and judicial conduct. The US President nominates judges, who then undergo confirmation hearings in the Senate. The Senate's Judicial Committee assesses the nominees' qualifications, and the American Bar Association provides an evaluation of their credentials. This process allows for public scrutiny of nominees' professional lives and political views.

In Germany, the executive and legislature share responsibility for appointing judges, with the judiciary participating through Electoral Committees and Advisory Bodies. This collaborative approach aims to ensure a balanced selection process. The Judicial Service Commission recommends nominees to the President, who is bound to follow these recommendations. This process promotes transparency and accountability, addressing concerns about judicial representation and diversity, as highlighted by Nelson Mandela's poignant observation during the apartheid era.

Australian judicial commissions invite expressions of interest from members of the bar through public advertisements, fostering transparency and encouraging diverse participation. These countries' approaches demonstrate a mix of judicial, executive, and legislative involvement, aiming to minimize political patronage and promote representation from diverse backgrounds. By engaging various stakeholders, these processes strive to ensure accountability and independence in the judiciary.

Ensuring Judicial Integrity

The composition of the judicial system should reflect social diversities to ensure trust among all sections of society. This highlights the need for a more inclusive approach to judicial appointments, involving the political executive, legislature, and civil society. However, ensuring judicial integrity is a complex issue that cannot be addressed solely through changes in the appointment process. Integrity has social, personal, and familial dimensions, and is influenced by various factors, including the consumerist culture created by globalization and liberalization. The integrity of some political leaders has also been questioned, which can impact the judiciary.

Moreover, the capture of democratic institutions by social, political, and economic elites can lead to the marginalization of vulnerable groups. Therefore, a vibrant civil society and active media are essential as watchdogs of democracy, promoting transparency and accountability in all institutions, including the judiciary. By engaging various stakeholders and fostering a culture of integrity, we can work towards a more just and equitable society as dreamt by the nationalist leadership during the days of their struggle for freedom and conceived by the architects of the Constitution of India.

Fr. John Felix Raj is the Vice Chancellor of St. Xavier’s University, Kolkata and Prabhat Kumar Datta is the Adjunct Professor of Political Science and Public Administration at Xavier Law School, St. Xavier’s University, Kolkata