Independence of Judiciary is bedrock of the democracy. This independence must be combined with accountability and responsibility. In recent there have been various issues raised regarding the issue. (Justice C.S. Karnan issue).
Process of selection and transfer
a. At present the selection and transfer of Judges of Supreme Court and High Court is done by President on consultation with collegiums system.
b. For selection to SC collegium consists of CJI and 4 senior most judges.
c. In case of selection and transfer of HC judges, the collegiums consists of CJI, 2 senior most judges of the SC and CJ of the concerned High Courts.
d. The proposal of NJAC to replace collegium system was struck down by SC and after that the executive is working on a New Memorandum of Procedures to reform the collegium system
Criteria for transfer
The transfer of judges is done in cases like:
a. When a judge is appointed as Chief Justice he is generally transferred to another HC.
b. In case when a lawyer from the bar is appointed as Judge or when a judge is promoted to HC. These transfers are done to avoid instances of favoritism.
c. Also in instances of any complain of corruption or any other charges which does not lead to his impeachment, the judge is transferred to another High Court. These are called punishment transferring.
a. Recently CJI led collegium ordered the transfers of High Court judges. Out of these the transfer of Madras HC Judge, Justice Karnan was in limelight because of his staying the order and accusing the transfers being biased because of his belonging to Scheduled Caste.
b. He was being transferred because of his misdeamenours and misadventures in Madras High Court.
c. Earlier also a judge accused of corruption was transferred from Punjab and Haryana High Court to Guwahati HC.
d. This process of transfers also tantamount to transferring errant judges rather than taking actions
All these instances bring to the fore issue of selection, transfer of judges and judicial standards & accountability. What should be done when there is a complaint against judge and how to ensure transparency, merit and accountability in appointment?
The present process in case of complaints against a judge consists of an in-house mechanism and impeachment proceedings.
a. In the “in-house procedure” to tackle errant judges the chief justice of India constitute a 3 member committee consisting of 2 chief justices of the high courts and a high court Judge.
b. If the committee recommends removal of the judge, the CJI can advise the concerned judge to resign or seek voluntary retirement.
c. If he unwilling so to do, the CJI can order that no judicial work be allocated to the judge and inform the president and prime minister of the same with a request to initiate the proceedings for removal of the judge.
This procedure is infrequently used; the proceedings are wrapped in secrecy; the judge continues to hold the post, and if the impeachment motion fails, it may not be possible to deny him work. So in such case it depends upon whether judge has a sense of morality or not.
Therefore there is need to pass the Judicial standards and Accountability bill as soon as possible which will establish an institutionalized mechanism to tackle such cases.
As in case of appointments the New Memorandum of Procedures by executive suggests measures which can improve the selection process which are given below.
a. It seeks to introduce performance appraisal based on “merit and integrity” as “prime criteria” as a standard for appointing chief justices of high courts and Supreme Court judges.
b. Evaluation of judgments delivered by a high court judge during the last 5 years and initiatives undertaken for improvement of judicial administration should be a yardstick of merit for promotion as chief justice of a high court.
c. It has also proposed selection of up to 3 lawyers and jurists as Supreme Court judges.
d. Advocating “fair representation” of all high courts in picking SC judges, the government has said preference should be given to the chief justices of high courts, keeping in view their inter-se seniority.
e. Documentation of the reasons why a senior judge was overlooked for elevation,
f. At present, no records are put in public domain by the Collegium to show why a judge is not elevated to the Supreme Court despite his seniority.
g. For appointing lawyers and jurists as judges, the government has proposed that “it shall be open to all judges of the Supreme Court” to make suitable recommendations to the Collegium
h. Establishment of a permanent secretariat to maintain records.
i. HC acting CJ term must be limited to 3 months.
j. Union Law minster must seek CJI's recommendation for appointment of his successor at least a month before his retirement.
k. A notice for vacancies of judges should be put up on the website of the high courts at the beginning of the year for appointments.
The measure suggested by MoP can help in ensuring the transparency without compromising on the independence of judiciary. They will also help in reducing vacancies as establishment of permanent secretariat is proposed. This will further help in reducing pendencies.
The MoP also shows that executive and judiciary are not at loggerheads but are ready to cooperate to better governance to the people of India.