Reduced to essentials, India’s judge selection issue is simple. Currently, the appointment of India’s topmost judges is a judicial monopoly. A collegium of five Supreme Court judges forms the sole authority to select and appoint judges to the high courts and their own Supreme Court.
The ruling NDA wants to dilute this monopoly. It wants a say in judge appointments by setting up a judge-selection panel with its own law minister as a member. The government has a point. Why should India’s judges be the sole deciders in appointing judges?
US, UK Selection Procedure
Judges don’t appoint judges in the US. Even the US president doesn’t. He cannot. He can only nominate a candidate to the Supreme Court or a Federal Court. But the candidate becomes judge only when a Senate majority confirms his nomination. If the Senate says no, his nomination is rejected.
So in America, judges are appointed by the executive and the legislature. Even the UK has nothing resembling the permanent Supreme Court collegium in India.
When a vacancy arises in the UK Supreme Court, the justice secretary sets up an independent commission of representatives from the different legal jurisdictions of England, Wales, Scotland, and Northern Ireland. This commission chooses a candidate and dissolves itself.
Quality of Judges
India today is seeing a raging controversy over the quality of its judges. This kind of controversy is unimaginable in the US or UK. This is because their selection process is so thorough that only meritorious candidates with spotless integrity become judges. Flawed candidates fall by the wayside. In fact, we have tons to learn from the US about judge selection.
The first is transparency. When a Supreme Court or Federal Court judge is appointed in America, his suitability is subjected to a gruelling public scrutiny that can last for months. Different interest and judicial groups go through his life and background with a tooth-comb to weed out any candidate whose past moral or ethical lapses disqualify him from sitting on a bench.
Contrast this with India where the selection of judges remains shrouded in secrecy. This is the chief charge against the present collegium. That its deliberations are opaque. It consults nobody when it appoints judges. Not lawyers, not other judges, not MPs, MLAs, not the public. The collegium merely announces some names, and that’s it, finito.
How The Americans Do It
- Judges don’t appoint judges in the US, a candidate becomes judge only when a Senate majority confirms his nomination.
- Appointment of a Supreme Court or Federal Court judge in America is subjected to a gruelling public scrutiny lasting for months.
- Before the US president nominates a candidate for the Supreme Court or a Federal Court, he gets the FBI to check a candidate’s credentials.
- After undergoing scrutiny by the FBI, the candidate’s background is checked again by the American Bar Association (ABA).
- ABA’s evaluation is followed by the candidate’s name being forwarded to the Senate Judiciary Committee which grills the nominee further before finally appointing him.
Grinder for American Judges
Judge selection in the US is a public affair that lasts for months. Before the US president nominates a candidate for the Supreme Court or a Federal Court, he gets the FBI to check out the candidate’s background. Once the FBI okays a candidate, his name goes to the American Bar Association (ABA). The ABA investigates the nominee and places him in one of the three categories: well-qualified, qualified or not qualified.
Only after the ABA has evaluated a candidate favourably is his name forwarded to the Senate Judiciary Committee (SJC). There he fills out a 20-25-page form covering every bit of his life. Which school and law school he attended and in which years. His employment record year by year, in government, business, professional companies, partnerships, institutions of profit or non-profit.
The candidate for judge is asked to submit a copy of all his writings, even letters to the editor. He has to disclose all sources and amounts of his income for a year before his nomination. Whether he ever took part in a political campaign. On and on the questioning goes to uncover every bit of a candidate’s life.
The Senate Interrogation
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. This interrogation can go on for three-four days. Any American citizen can appear before this committee to support or oppose the candidate’s confirmation.
Once the SJC approves the candidate for judgeship, his fate is decided by the entire 100-member Senate which confirms or rejects his nomination by a simple majority. It’s rare for the Senate to turn down a Supreme Court nomination. It has rejected only 12 such nominees till now.
Charges of Corruption
Because India’s judges don’t undergo such scrutiny, we are occasionally subjected to a surreal spectacle. Of lawyers and judges levying serious corruption or misconduct charges against sitting and former judges. But no judge in India has been successfully impeached.
Two were threatened with impeachment but they resigned before the punishment could be carried out. These were Calcutta High Court judge Soumitra Sen and Sikkim High Court Chief Justice P D Dinakaran. Except for loss of face, they lost nothing. They were allowed to quit with a 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 the high courts and Supreme Court; it is this monopoly that NDA wants to dilute.
- Deliberations of the collegium are opaque since it neither consults lawyers nor other judges or MPs and MLAs, not even the public.
- Since judges in India don’t undergo scrutiny, we’ve had instances of serious corruption or misconduct charges being levelled against sitting and former judges.
Severe Punishment
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, 59, would often masturbate under his robes while holding court. He was charged with felony, convicted, and sentenced to four years in jail. And he was disbarred from all legal work in Oklahama.
Five years ago, another federal judge of Louisiana, G Thomas Porteous, was impeached for taking kickbacks. Another judge, Walter Nixon, was impeached for perjury before a federal grand jury.
But in India, little is happening in the misconduct case against a Madhya Pradesh High Court judge SK Gangele. He had asked a junior female judge to dance and perform an “item number” for him. Fifty-eight members of the Rajya Sabha moved a motion for his impeachment last March, but nothing has moved till now.
(Arvind Kala is a freelance journalist)
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