Thursday 3 January 2013

Let’s make judges selection more transparent


A BEAUTIFUL BUILDING IS NOT EVERYTHING: The present system of selection is secretive and subjective. The picture is of Court No. One of the Madras High Court. Photo: V. Ganesan

Wide consultation, rather than the closed-door deliberations of the collegium, is what the Supreme Court and the High Courts need
The decisions of the Supreme Court in the two judges cases in 1993 and 1998 have been criticised because they have not only practically amended the Constitution (which could only have been done by Parliament) by inventing a collegium system unknown to the Constitution, but also because the working of the collegium system has often been found defective. I would, therefore, like to describe my preferred method of recommending names for appointment.
I came to Chennai as Chief Justice of the Madras High Court in November 2004. The sanctioned strength of High Court Judges here was then 49 (60 today). At the time, there were about 23 or 24 vacancies, which meant that about half the posts in the High Court were lying vacant.
I was a total stranger to Tamil Nadu as I had come from Uttar Pradesh. I had been a lawyer in the Allahabad High Court, and thereafter a judge there.
Every institution is really about the personnel manning it. So, a High Court is not really about a beautiful building or beautiful lawns but the judges who man it. They should be first class people in conduct and in legal knowledge. I was determined to recommend good names for appointment as High Court Judges and not bow to pressure.
This was the method I adopted:
I requested a dozen sitting judges of the High Court, in order of seniority, to give me a list of lawyers of the High Court whom they thought deserved to be appointed as High Court judges.
I also requested four or five very senior and respected lawyers of the Madras High Court to give their lists. I also consulted some respected retired judges.
Thus I got about 17 or 18 lists.
I received those lists, and, along with my two senior most colleagues, found certain names to be common in many lists. Enquiries were made even about those names. We also considered some names which were not very common. This exercise went on for two to three months and ultimately there was consensus. It was these names which were recommended for appointment. I then went to Delhi and met the then Hon’ble Chief Justice of India, Mr. Justice Lahoti, and informed him about the methodology I had adopted.
I told him that I had insisted that I would only recommend the names of persons who had a great reputation and good practice, were non-controversial and not too close to any political party (otherwise such persons would not be neutral and impartial). I also referred to what was said by a Lord Chancellor of England (who had then the authority to recommend names for appointment of British High Court judges) that the person whom he would recommend must be a gentleman, and it would do no harm if he knew a little law! (The second part of this sentence should not be taken literally because it is certain that a person to be appointed as a judge must know some law! What I meant was that if a person has put in 20 years as a lawyer, he is bound to know some law. More important, thereafter, is that he should be of high character.)
I told Mr. Justice Lahoti that the methodology that I had adopted was a result of a consensus after wide consultation with about 20 persons including sitting judges, respected retired judges and very senior respected lawyers of the High Court.
Since none of the persons I had recommended was either known to me (except for their performances in cases they argued before me) or belong to my caste or community, I had no personal interest in any such person. Hence it was up to the Supreme Court Collegium to approve or disapprove the names. In any case, I told him, it would not, in any way, bother me if any name was rejected because I had no personal interest.
Ignoring pressure
I must add that certain important people did try to influence me in this connection, but I paid no heed to them as I was determined to do my duty to the Madras High Court, come what may. As a result of that, almost all my recommendations were accepted, and 17 judges were appointed to the Madras High Court in December 2005, a record for that High Court.
In my opinion, the methodology which was adopted by me should also be adopted for making recommendations for appointment of judges in the Supreme Court as well as in all High Courts. The present system, based on the decisions of the Supreme Court in the Judges Case, is defective as there is a lot of subjectivity. In my opinion, the Judges Cases should not be understood to mean that only the five senior most judges of the Supreme Court (three senior most for the High Courts) should be consulted for appointment as Supreme Court and High Court Judges. There should be very wide consultation with at least 15 to 20 people who are highly reputed as judges, former judges, senior lawyers. After this, the consensus which emerges should be recommended.
I was the sixth in seniority in the Supreme Court. But I regret that I was never consulted by the Chief Justice. The five senior most judges met in a highly secretive manner for deciding whom to recommend as a judge of the Supreme Court. This manner severely restricts the inputs which are required for making high quality recommendations. Justice Ms Ruma Pal, former Judge of the Supreme Court, said that deliberations of the collegium are “a complete mystery.” It should not be so in a democracy, where there should be transparency, otherwise allegations are bound to arise, however unfounded, that improper recommendations have been made for extraneous considerations.
I, therefore, recommend to the Chief Justice and to the Chief Justices of all High Courts, that they should follow the same method I adopted for appointment of judges in the Supreme Court and all High Courts, and not limit the consultations to only Collegium members. In my opinion, the decisions of the Supreme Court in the cases of 1993 and 1998 should be understood in their proper perspective, and not in a narrow sense.
(Markandey Katju, a former Chief Justice of the Madras and Delhi High Courts, former Acting Chief Justice of the Allahabad High Court and former Judge of the Supreme Court of India, is currently Chairman of the Press Council of India.)
Published in The Hindu on 03/01/2013



14 comments:

  1. Character of few men is impossible to conquer . I am glad you are one of such men .

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  2. Well said sir, Supreme court should set example of transparency, as it is highly regarded institution in India, and I think it is the only institution which people look forward to, and hence it has greater responsibility to act on righteous path.

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  3. I agree. This reminds me of the article by Noted Lawyer and Jurist of our time Fali S Nariman in his autobiography, titled: Before Memory Fades where he regretted winning judges appointment case namely ” Supreme Court Advocates on Record Vs the Union of India”.

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  4. Hon. and Respected Justice Katju,

    First thing first. It is incredibly straight on your part to publicly put this post. Your misfortune on not being consulted shows poorly of how the judiciary run in India. It is very very suffocating to know that.

    However, with all due respect, the proposal you have made is a baby step! It is actually the minimal what the CJI and JI in SC should have been doing. I wonder why in the 1st place it is a proposal?

    Now coming to Judiciary's reform. There are many, including this baby step mentioned by you.

    The 1st flaw that India inherited is to completely follow the British system. Today's India is not going to work by that. It is much complex than that. Today's India live in many worlds, separated by even by centuries. Perhaps, that was the easiest things to do then in 1947. But today, it is different. Laws, institutions, processes should reflect and change with society. In India that should happen.

    No observer of India can avoid noting that India lives simultaneously in several centuries. It lives in the modern and the ancient, the highly technically qualified and the illiterate, the rich live along with poor, the most provocatively dressed picture of a person with someone in traditional attire. It is all chaotic and thoroughly confusing. Like in many other countries, contradictions run wide and deep in India.

    So, we need to divide India in the way it has been developed while maintaining its federal structure with a strong center.

    Here are some quick proposals. Let us start with the root in place hitting on the top of the tree. It starts with the lawyers first!

    1. Lawyers need to have a specificied number of cases with them. Today's lawyers are not practising anything, but complete rogue trade to get more money.

    2. Lawyers, should come to practicing High Court or Supreme Court after clearing stringent admission criteria, entrance test and specified years of practice.

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    1. 3. Judiciary is also as you have said time and again is the servant of people in democracy. If a judgement can not come withing a time bound limit, that judge must be penalized and if consistent, should be suspended.

      4. Adjournment and delays have been a fashion now a days. There should be stipulated no. of times when adjourment and delays can happen for cases.

      5. Criminal cases must be fast tracked. Now almost all family cases are criminal though mentioned to non criminal to hoodwink the public.

      498A, DV Act etc. are cognizable, non-bailable and non-compoundable, but not more server crimes like say Rape, which is again severely misused, is bailable!!! Meaning a husband is worse than a rapist or a murderer!!! I remember somewhere you have criticized yourself severely on 498A (now another attack from rogue group of women who talk of only rights and rights and rights without any responsibilities will come if I mention the link!)

      6. Judiciary reform must happen along with Police reform. Police is the 1st time of defense. Take for example 498A, where police charge sheets above 90% with hundreds of pages of reports with almost all FIR looking similar, but conviction is abysmal as judiciary strikes them down! So in the process, police has happily collecting the bounty, playing devil from both sides.

      Police brutality without any proper investigation is well known. Sri Lanka could be an example for India. For record, Sri Lank scores higher than India in HDI!!

      7. You have cited judgement from the US in your cases giving sanctimony to live in relationships. So please also take some examples from certain US states (though it is more politicized, but still in some states it is good).

      8. Perjury is another cancer that grasped the judiciary and must be rooted out with harsh punishment.

      Last, but not the least:

      1. Have at least 5 Supreme Courts in India for now. We do not want to run to Delhi for everything. Each supreme court has to come in east, west, north, south and north-eastern part of India.

      2. We need to look at India at the cross over stage not in its totality. You may think it will take at least another 20/30 years to change the system, which means effectively this generation will pay a severe price which your generation failed to do any proper changes! Time is running out and I believe you know that.

      Note: Also, now you will be attacked by the rogue feminists group and their brother/sisterhood who will say - "how dare you write institutions being "manned"?" For them, it is sexism again! I do not mind if you would have called it "womanned" or "neutered" though!

      Also, now that you have seen how the Roman Rule is prevailing in India - coliseum of cricket with Pakistan coming in and crowd lapping it up, some handing has to be done for some failed people (failed people to be thrown into the animals in the coliseum to be turn apart) and crowd will roar in approval, like they did in old roman times!! Otherwise resort to violence again and kill men, as many as you this time, in the name of protection of women - would request to you propose clear reforms with your deep understanding of it in your 40 years of service in law.

      We expect more deeper understanding, explanation from you and I hope you will. I have faith in this generation, but this generation has no clue on how the system functions, how laws are propagated in the name of politics (NOT ONLY played by political parties) and how the same law passed today will put their father, mother or sister or brother or son and daughter into trouble later. It is ably supported by a crooked media, whose prime agenda is TRP and promotion of all western concepts and rubbishing all India - including some of our best like Swami Vivekananda (Jan 3, The Hindu piece on Swami Vivekananda has crossed all lines saying that his photograph is anti women and that too from editorial column!!!)

      Thank you,
      Warrior For Justice
      http://thewarriorforjustice.wordpress.com

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    2. Re: Multiple Supreme Courts:

      How would you reconcile differing interpretations of the law?

      As Robert Jackson said wrt to US Supreme Court -- We are not final because we are infallible, but we are infallible only because we are final

      More important is that the Supreme Court should not interfere in everything and entertain every PIL under the sun. I think the Indian Supreme Court will learn a lot re: case management from the US Supreme Court.

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  5. Hon. and Respected Justice Katju,

    this was truly a good read. I do however have one query/question regarding this.

    in the blog above you say "none of the persons . . . belong to my caste or community". Making it sound like a key part of the decision making process. Is this to mean that those of your caste/community were disregarded automatically as to seem unbiased? If so would this not be a discrimination of sorts?

    I may have misinterpreted this point, and if I have please accept my most sincere apologies.

    Also you say that certain individuals tried to influence your decision/choices. Is this not an immoral (maybe not illegal) practise? Would it not have been in the benefit of Bhartiya legal system to have named and shamed these persons?

    Many thanks for taking the time to read and (hopefully) respond to this question. Your blog is very insightful, and interesting, and I take great pleasure in reading it.

    Punit J Rajpara

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    1. Yes Punit, He mean to say the list was prepared without any caste bias. Still if you find someone who is in same caste deserved to get the post, you should not be part of decision maker. If you are part the decision maker then don’t give any suspicious remark on your decision. Katju statement tells that only.

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  6. I totally agree with you Sir.

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  7. This is damn disgusting India. This man heading Press Council cannot tell his own constituency to moderate itself. But he comes out and preaches to the world.

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  8. Grapes are sour. I wasn't consulted, therefore, the system stinks and is due for reform.

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  9. Sir,
    While I agree with you but I wish to say that the picture of Madras High Court's court number 1 published is not beautiful anymore. It might be considered as beautiful at the time when the building was constructed but in this twenty first century it is now ugly from my perspective. It should now be turned into a museum or something else. I must say that even the public toilets in Australia appear more beautiful than this court. I know that my expression is insulting but my intention to insult is motivated by the purpose of triggering the modernization of Indian judicial infrastructure. I wish to hope that my insulting comment might perhaps act as a triggering factor for modernising Indian Judicial infrastructure so that in future Indians are not inculcated with the view that old infrastructure is beautiful. While I can comment in detail about the so called beauty of the court no 1 of the Madras High Court. I have chosen to make just one comment only as an indication that the chairs for the visitors still appear to be un-cushioned and uncomfortable in this twenty first century India .

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  10. Mr Katju speaks / acts on everything except problems of press for which he has been appointed chief of PCI .He himself was made judge of high court only due to his family relations with Nehru / Gandhi family as his grandpa Mr KN Katju was CM of Madhya Pradesh.My comments below anyone who wants to reply please come to my website http://www.bhadas4media.com/vividh/7731-2013-01-06-05-54-36.html as I wouldn't read this useless article again. कुछ समय पहले तक लोगों की आम धारणा थी कि जस्टिस मार्कंडेय काटजू अच्‍छे आदमी हैं तथा अच्‍छे और कठोर फैसले सुनाते हैं. लोगों को देश के बजबजा चुके सिस्‍टम में काटजू राहत पहुंचाते नजर आते थे. रिटायरमेंट के बाद जस्टिस काटजू को जब पीसीआई यानी प्रेस काउंसिल आफ इंडिया का अध्‍यक्ष बनाया गया तो लगा कि इस नख-दंत विहीन संस्‍था से कम से कम पत्रकारों को राहत मिलेगी. जस्टिस काटजू ईमानदारी से सारी बातों को देखेंगे और गलत करने वाले अखबारों-संस्‍थानों को नसीहत देंगे, पत्रकारों के हितों की रक्षा करेंगे.

    पर जल्‍द ही लोगों के सारे अरमान और सोच पर पानी फिर गया. जस्टिस काटजू पत्रकारों तथा देशवासियों को ही बेवकूफ बताना शुरू कर दिया. अपने बात एवं व्‍यवहार से ऐसा दिखाने लगे जैसे वे कांग्रेस के बड़े शुभचिंतक हैं. इसका एक उदाहरण बताए देते हैं, जब तक ममता बनर्जी यूपीए की सहयोगी थीं, जस्टिस काटजू तारीफ करते थे, पर ममता के यूपीए से अलग होते ही काटजू ने उनके खिलाफ बयान जारी कर दिया. समझने वालों को समझ में आ गया कि काटजू साहब की नजर में ममता बनर्जी अचानक विलेन क्‍यों हो गईं?

    वैसे भी जस्टिस काटजू जब से पीसीआई के चेयरमैन बने हैं तब से उन्‍होंने प्रेस से जुड़ा ऐसा कोई काम नहीं किया जो चर्चा का विषय बन सके. तमाम लोगों ने प्रेस और अखबारों से जुड़ी अपनी शिकायतें पीसीआई को भेजी पर ज्‍यादातर पर कोई कार्रवाई ही नहीं हुई. जब तेजतर्रार माने जाने वाले जस्टिस काटजू के कार्यकाल में लोगों की शिकायतें नहीं सुनी जा रही हैं तो अन्‍य लोगों के कार्यकाल में ये संस्‍थाएं कितनी कारगर रही होंगी भगवान जाने. यानी काटजू साहब प्रेस से जुड़ी बातों या समस्‍याओं को छोड़कर दुनिया की सारी समस्‍याओं पर उवाच करते हैं, बोलते हैं.

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  11. There is not only need to improve the system of appointment of higher judicary appointment but also appointment in lower judiciary like civil judges and judical magstrate and ADJ/ASJ.In Delhi and it may be so in several other states also.there is three tier exam preliminary main and interview.Preliminary exam is omly for selection for main exam its mark are not counted for final selection .Then main exam with 4 or 5 papers you had to get 40% minimum in each and 50% average in total then there comes the interview .Upto few yeard back when there was no RTI Act.Final selection was to be made on the basis of total of marks attained in main written plus marks in interview.It is the same criteria adopted in civil services. And there was no disclosure of marks by Delhi high court.Then it was compelled to disclose the marks attained by candidates in main exam only when the matter reached to central information commission.Then some time after it condition was changed so that one who did not attaint the 50% marks in interview would be ineligible for appointment thus virtually controlling the whole stake in itself .So I and some other candidates despite getting the total of more than the marks in main as well as interview could not get appointment.I got 540 total and candidate with 508 was selected .Interview are neither rational nor scintific ther is no guideline that how much marks each interviewr can give or only chairman would give marks.what criteria would be for marks.Neither these are conducted as per shettay commisson recommendation.

    BASIC NEED FOR LEGAL SYSTEM AROUND THE WORLD TODAY
    1 IT IS TO COLLECT THE ALL LAWS IN FORCE AT ONE PLACE WHETHER IN INDIA OR USA OR UK O INTERNATIONAL LAW
    2 UNDERSTAND THE ABOVE POINT THERE IS NO BOOKOR BOOKS OR WEBSITE OR ANY OTHER SOURCE IN INDIA WHERE WE CAN FIND OUT THE WHOLE AND COMLETE LAW
    3 DO WE KNOW THERE ARE HOW MANY CENTRAL ACTS/LAW ?
    4.DO WE KNOW HOW MANY STATE/PROVINCIAL (BEFORE INDEPENDENCE THERE WERE PROVINCES WITH POWERS TO MAKE LAWS) AND THERE WERE PRINCELY STATES ETC. LAWS ?HOW MANY PRESIDENTIAL ORDER HAS BEEN ISSUED UNDER CONSTITUTION.(PRESIDENT HAS POWER TO ISSUE UNDER SOME PROVISIONS OF CONSTITUTION)
    5 HOW MANY RULS REGULATIONS NOTIFICATIONS GUIDELINES ARE ISSSUED BY CENTRAL GOVERNMENT STATE GOVERNMENT OR OTHER BODIES UNDER VARIOUS LAWS
    6. HOW MANY JUDGEMENT OF SUPREME COURT OR PRIVY COUNCIL OR FEDRAL COURT OR HIGH COURTS ARE THERE WHICH OF THESE GET REPEALED OR NOT
    7 HOW MANY CUSTOMS AND USAGE HAVE THE FORCE OF LAWS AND WHAT ARE THESE
    8 wHEN WE DO NOT KNOW THE LAWS THEN HOW CAN WE FOLLOW THEM
    9 FIRST COLLLECT ALL TYPES OF LAW AT ONE PLACE
    10.THEN START REPEALING AND CONSODILATING THE LAW
    11 SAY FOR EXAMPLE COLLECT ANALYSE THE ALL LAWS MADE BEFORE 1900 OR 1947 AND THEN KEEP THE USEFUL LAWS AND REPEAL ALL THE REST OF LAWS.
    .....

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