Friday, July 3, 2020

Indian Collegium System, monopolistic Tendencies vs Non monopolistic American judicial appointments

Mobeen Khan 

Judges appointing judges, a system created by supreme court in 1993 was akin to the Gymkhana club deciding on new members, Union Finance Minister Arun Jaitley senior lawyer of long standing had quipped in October2015.Keep those elevated from subordinate judiciary, nearly half of India’s top judges are kith and kins of ex judges and top jurists.

The National Lawyer’s Campaign (NLC) for Judicial  Transparency  and Reforms, the association  that filed the petition in Supreme Court, says that out of 28 sitting judges of the Supreme Court at present,  as many as nine happens to be the close relatives of former judges, including a son, a grandson, and a nephew of former chief justices  of India. Another is the son of a chief minister, while one is the son of a former Advocate General of the state.

As far India’s High Courts, the petition  filed in Supreme Court by NLC in 2014-15 during NJAC case, claimed that a large representative sample from that period showed that as nearly one-third of high court  judges surveyed happened to be  related  to sitting or former judges and legal luminaries.

Their data showed 88 High court judges out of the 300 surveyed across 13 High courts fell in this category. The High court collegium have been recommending the names of lawyers related to judges or other legal luminaries is no secret.

Among the lawyers names recommended for the Delhi High Court, at least three were said to be related to ex-judges. One of them is the relative of a former judge of the Delhi High Court, another is brother in law of a Lawyer politician and a distant relative of a sitting SC judge. The third was said to be the relative of a sitting judge of Punjab and Haryana high court .

Among the sitting  judges of Delhi High Court, is the son of a former governor of two states,another ‘s father was a judge in Bombay High court. The state of J and k too witnessed such kinship priorities where two sons of a former Governor  of Assam, and later a judge of High court of  J and K.One of them became the chief justice of India.

Ironically, while the SC collegium is at the receiving end of criticism for its opacity, the government doesn’t  make public its reasons for rejecting recommendations made by the collegium for appointments and transfers.Indeed some senior advocates believe the collegium  can hardly  act on its own. A case in the point is the letter written to CJI written by senior advocate Yatin Oza of Gujarat High court. Oza  invited the contempt charges from that court for alleging the file containing the  response of one High court judge on the proposal to transfer him to Madhya Pradesh was not produced before the collegium. Oza claimed the judge in question had the political patronage and had been assured he would not be  transferred until later despite the collegium’s recommendations.

Many ex-judges have voiced their uneasiness at the opacity, though. After her retirement,  J. Ruma Pal said at a lecture in 2011,”The process of appointing judges to superior courts is possibly the best kept secret of the country. “She also used the word ’emystique’.

A well known  jurist echoes the sentiment” Qualifications for a judge are laid down, but how to become a judge is not known to me”. A senior lawyer says relative of sitting  and dormer judges and eminent lawyers are designated as seniors and made judges quite early. There is a sitting judge in the Delhi High Court whose father was a judge. So the sob was easily  noticed and he was designated a senior at 45 and made a judge at 46.

The appointment of India’s top most judges is a judicial monopoly.A collegium of five Supreme Court judges forms the sole authority to select and appoint the judges to high courts and their ownsupreme Court. India today is seeking a raging controversy over the quality of judges. This kind of controversy is unimaginable in U.K. and USA.This is because  their selection process is so thorough that only meritorious  candidates  with spotless integrity become judges. Flawed candidates  fall by the wayside.Infact,we have tons to learn from the United States judge selection.

The first is transparency  When a federal court judge is appointed in America, his suitability is subjected to gruelling  public scrutiny that last for months.Contarst this with India where selection of judges remains shrouded in secrecy. This is t chief charge against the  present collegium. That its deliberation are opaque. Itconsults nobody when it appoints judges.

Not lawyers, no other judges, not MLA’s MP’s and not even the public. The collegium merely  announces some names, and that’s it, finitio. Judge selection in US is a public affair that last for months. Before the US President nominates a candidate for Supreme Court or a Federal court,  he gets the FBI to  check out the candidates background. Once the FBI okays a candidate, his name goes to the American Bar Association. The American  Bar Association investigates the nominee and places him in one of the three categories: well  qualified, qualified,  and not qualified.

Only after  the American Bar Association  has evaluated a candidate favourably is his name forwarded  to the Senate Judiciary  Committee. There he fills out a 20-25 pages form covering every bit of his life. The candidate for judge is asked to submit a copy of all his writings,  even letters to editor. He has to disclose all the sources  and amounts of his income for a year before his nominations and also whether he took part in a political  campaign.

Then comes the candidate’s formal appearance before the Senate Judiciary Committee. The appearance  is televised, so while the country watches, the judge  nominee is grilled about his past judgements and his judicial views.Thus interrogation  can go for three four days.

Any American  citizen can appear before this committee to support of oppose the candidate’s confirmation.Once the Senate Judiciary Committee approves the candidate  for judgeship, his fate is decided by the entire 100 members Senate which confirms or rejects his nominations by a simple majority. It is rare for the Senate to turn down Supreme Court nomination.

It has rejected only 12 such nominees till now. Because  India’s  judge don’t undergo scrutiny of  corruption  charges, we are occasionally subjected to surreal spectacle of lawyers  and judges levying  serious  charges of corruption or misconduct against the sitting  and the former judges. But no judge in India has been successfully impeached.

They were threatened  with  impeachment  but they resigned before  impeachment or punishment  could be carried out. These were Calcutta high court judge Soumitra Sen and the Sikkim high court  Chief Justice P.D.Dinakaran. Except for loss of face, they lost nothing. They were allowed to quit with full pension and all retirement benefits.

Judges spared from scrutiny in India:

A collegium  of five supreme court judges forms the sole authority  to select and appoint judges to high courts and supreme Court; it is this monopoly  that needs to be diluted. Deliberations of the collegium  are opaque since it neither consults lawyers nor other judges or MP’s and MLA’s, not even the public. Since judges don’t  undergo scrutiny, we have had instances of serious  corruption  and misconduct  charges being levelled against sitting  and former judges.

In contrast to India, American  Society  is severe with its punishment of judicial misconduct. Nine years ago, the state of Oklahama discovered a bizarre  truth. That one of its Federal  judges-Donald Thompson would  often masturbate under the robes while holding court. He was charged with felony, convicted and sentenced  to  four years in jail.

And he was debarred  fen all legal work in Oklahama. But in India, little is happening  in the misconduct case against a Madhya Pradesh  high court judge S.K Gangele. He had asked a junior  female judge to dance and perform an “item number “ for him. Fifty eight members  of Rajya Sabha moved a motion for his impeachment but nothing  has moved till now.

The current collegium system needs to be reformed as it has monopolistic tendencies while appointing  judges to high courts and supreme court paving the way for the appointments of their kith and kins. Appointments  of judges of high court and supreme Court should be subjected to  gruelling public scrutiny, investigation by the Bar Council Of India,Parliament interrogation and scrutiny  of  corruption charges or misconduct. Transparency and accountability is the essence of quality of judges.

The writer is an advocate and can be reached at [email protected]

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