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Two months before Vice-President of India and Rajya Sabha Chairman Jagdeep Dhankar’s push to find an alternative to the Collegium system following the alleged discovery of half-burnt cash on the residential premises of High Court judge, Justice Yashwant Varma, an international body of jurists had published a report urging the government and the Parliament to enact a law constituting a ‘Judicial Council’ to spearhead judicial appointments and transfers based on transparent, predetermined and objective criteria.
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The report by the Geneva-based International Commission of Jurists (ICJ), however, said the ‘Judicial Council’ must be composed of a majority of judges in tune with international standards of judicial independence.
The debate on the Collegium system of judicial appointments and transfers has been revived almost a decade after a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment. The current discourse has found both the Centre and the Opposition agreeing about the lack of transparency in the Collegium system. The October 2015 judgment had accused the NJAC law, which had been unanimously passed by the Parliament, of being a precursor to a culture of reciprocity and paybacks between the government and the judiciary.
The ICJ document, prepared with the assistance of former Delhi High Court Chief Justice A.P. Shah, advocate Vrinda Grover, and advocate Ratna Apnender, focussed on the “retrogressive developments in respect of judicial independence” between 2014-2024.
“There are a series of structural weaknesses in the Indian judicial system. While nominally, the Indian judiciary is constitutionally insulated from the executive and the legislature, significant scope for external, including executive influence remains… The Indian judiciary has itself failed to provide for appropriate self-governance mechanisms and arrangements that ensure optimal accountability for the fair and independent administration of justice,” the report, titled ‘Judicial Independence in India: Tipping the Scale’, said.
The ICJ finds fault with the ‘in-house’ inquiry procedure against sitting judges. “The ‘in-house procedure’ developed by the Supreme Court to inquire into complaints against judges is not statutorily backed. It is not based on any articulated rules or norms of judicial conduct that serve as a substantive basis to determine misconduct. The procedure to initiate inquiry and conduct the inquiry is indeterminate and vests excessive discretionary power with the Chief Justice of the Supreme Court,” the report noted.
Incidentally, on Wednesday, Chief Justice of India Sanjiv Khanna informed advocate-petitioner Mathews Nedumpara that his plea challenging the jurisdiction of the in-house procedure in the context of the incident concerning Justice Varma was listed for judicial hearing.
The ICJ report recommended that the statute constituting the ‘Judicial Council’ must set down clear criteria based on competence, merit, ability, experience and integrity, which would form the sole basis for judicial appointments and transfers. The statute must be framed in consultation with representatives of the legal profession. Ten years ago, the challenge to the NJAC was brought by the Supreme Court Advocates-on-Record Association, a powerful body of lawyers in the apex court.
On judicial transfers, the international jurist body said they proceeded on vague criteria such as ‘public interest’ and ‘better administration of justice’. It was impossible to know if transfers were “disguised sanctions”, punitive or retaliatory in nature.
The ICJ said judicial accountability mechanisms in India were insular and ineffective, making real accountability near impossible. It recommended a statutory mechanism for the redress of complaints against Supreme Court and High Courts’ judges. The redress mechanisms and its outcomes must be open to judicial review, the ICJ said.
Published – March 26, 2025 05:54 pm IST