Better judgment

A vital constitutional safeguard has been put into the proposed judicial appointments commission

How should Supreme Court and high court judges be chosen? Given the manifest failings of the system by which the higher judiciary chooses its own through a closed and unaccountable collegium, the government has attempted to replace it with a judicial appointments commission. The commission is to be headed by the chief justice of India, and will include the Union law minister, two Supreme Court judges, the law secretary and two eminent persons, who will in turn be chosen by the CJI, prime minister and leaders of the opposition in the Lok Sabha and Rajya Sabha. And now, the single biggest infirmity in the proposed system has been fixed.

The cabinet has indicated that the proposed judicial appointments commission will have constitutional status, ensuring that its membership pattern is stable. Until now, even those who acknowledged the need to change the collegium system were wary of the JAC bill, because the composition of the commission had not been systematically entrenched, and it would have been technically possible for a parliamentary majority to alter the structure at any point. Though the JAC itself was to be created by constitutional amendment, crucial details about how it was to be put together were open to later manipulation, and the respective weight of judicial and non-judicial members, for example, could have been changed. That dangerous possibility has been foreclosed, after the cabinet accepted the advice of legal experts and the parliamentary standing committee on the bill.

Article 124 of the Constitution requires the president to appoint Supreme Court judges, in consultation with the CJI. So far, the appointment process had ended up tilting too much in one direction, first giving the executive too much power and then giving the judiciary too little accountability. There is little disagreement that the JAC will be an improvement on the collegium, a system put in place in 1993, requiring judges to select their colleagues based on educational and professional achievements, temperament and integrity, but one that was marred by perceptions of favouritism and opacity in its workings. The JAC opens up the selection process, giving the executive, legislature and citizens greater say while maintaining the primacy of the judiciary. It balances diverse interests, making it difficult for any one group to railroad its preferences. But to be a truly worthwhile improvement, the JAC should also lay out clear criteria for the shortlist and for final selection. Given the magnitude of its responsibility, it should also have the infrastructure and ability to seek full information about prospective judges, including public feedback.

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