Judge and appoint

  • Judicial appointments in Nepal could take a page from two recent bills passed by the Indian Parliament
Judge and appoint

Aug 22, 2014-

For more than a decade, a debate had been taking place in India on the appointment of judges. Finally, India has come to the conclusion to establish an independent body for judges’ appointment. This structure seems similar to the structure we have.  However, there are a number of meaningful differences.

In India, this is a monumental change for the appointment of judges. It was said that the collegium system did not carry out objective assessments of judges before the appointment. However, the Chief Justice of India believes that the collegium system is better for an independent judiciary. In another debate, the legal community fears that the new system will be politically influenced.

Sea changes

The Indian parliament has recently passed two crucial bills providing for a new mechanism to appoint judges in the higher Indian judiciary by scrapping the two-decade-old collegium system. The Parliament passed with overwhelming majority the Constitution (121st Amendment) Bill 2014 and the Judicial Appointments Commission Bill 2014 to set up a six-member National Judicial Appointment Commission to select and recommend judges to the High Courts and Supreme Court of India. The Constitution (121st Amendment) Bill 2014 will provide constitutional status to the National Judicial Appointment Commission as a new mechanism to select and recommend judges. The commission will be headed by the Chief Justice of India and will have as its members two senior-most judges of the Supreme Court, the Union law minister, and two eminent jurists. A panel comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition of the Lok Sabha will nominate these two eminent jurists. It is a mandatory provision in the Bill that one of the eminent persons shall be nominated from amongst the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities or women.

The new measure will be effective only after ratification of the Constitution Amendment Bill by half the state assemblies, which is likely to take eight months. Only after this process will the government send the Bill to the President for approval and the Bill will become law.

With this latest development by the Indian parliament, the 21-year-old collegium system of appointing judges has now been scrapped and replaced by the National Judicial Appointments Commission. The Commission is said to enable participation of the judiciary, executive, and eminent persons and will ensure greater transparency, accountability and objectivity in the appointment of judges. According to the new Bill, within 30 days of the National Judicial Appointments Commission being set up, the government will intimate the number of vacancies for judges in the High Courts and Supreme Court to make recommendations to fill vacancies. It also mandates the Central Government to make a reference to the Commission six months in advance about vacancies that might arise.

Appointment processes

Now onwards, the National Judicial Appointments Commission will recommend the senior-most judge of the Supreme Court for appointment as the Chief Justice of India, provided he is considered fit to hold the office. To appoint Supreme Court judges, the Commission will recommend names of persons on the basis of their ability, merit and other criteria. The Commission is also vested with veto power against the recommendation of a person for appointment if any two members do not agree, both for the Supreme Court and High Court.

The Bill also provides that the Commission will recommend a judge of the High Court to be the Chief Justice of the High Court on the basis of inter-seniority, ability, merit and other criteria. For appointment of High Court judges, the Commission will seek nominations from the Chief Justice of the High Court concerned in consultation with two senior most judges of that High Court. The Commission will elicit the views of the Governor and Chief Minister of the State before making recommendations.

On the recommendations of the Commission, the President will appoint the High Court and Supreme Court judges. However, if for some reason, the President requests the Commission to reconsider certain recommendations and the recommendation is reiterated, the President is bound to make the appointment.

The Bill mandates the Commission to make regulations specifying the criteria of suitability with respect to the appointment of Judges of High Courts and Supreme Court, the procedure and conditions for selection and procedure for transfer of judges from one High Court to another.

The Bill has introduced some important points, which are necessary for judges’ appointments. First, an independent body will be established. It will consist of six members and will be introduced as the Judicial Appointments Commission (JAC). This body will ensure collaboration between the judiciary and the executive. The basic function of this body will be to make recommendations for appointments of judges and their transfer. This entire process under the JAC will be aimed at ensuring transparency. The decision of nominating the judges will be taken through consensus by the JAC. The JAC will work under a stipulated time frame. This will provide certain time periods for vacancies to be filled up.

Pointers from India

This process of appointment is better than what is stated in our constitution or the law; it is more meaningful and will develop the importance of JAC. We could have very beautifully applied systems of law in Nepal, but we have not been capable of working up to the mark. Decisions made through the constitution seem emotionally and politically affected, when they must be independently created.

If we could take pointers from India’s legal system, it would be contextual and more practical. Even after going through such an enormous change in appointment history, India has still not introduced Parliamentary hearings and there is no representation of the parliament in the new mechanism to appoint the judges in India. The structure of the appointment authority is not of primary importance. What is more important is how this body goes through a better process of appointments. The apex body ought to create committees for the formation of a roster. Another committee could investigate and finalise a suitable name for the shortlist for the appointment of judges. The apex body can only choose names from this list that has been finalised by the sub-committees. Only then will there be transparency and better selection of judges.

Currently, we are in a constitution-writing phase. This is an opportune moment to study, collect and gain knowledge about contemporary practices and principles in the judiciary, including the appointment process. A change in a system that is very similar to ours has taken place in India. This indicates that our key concerns here in Nepal regarding judicial appointments have been recognised by policymakers in India as well.

Neupane is a member of the Judicial Council







Published: 22-08-2014 08:40

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