A Public Interest Litigation has been filed in the Supreme Court by National Lawyers’ Campaign for Judicial Transparency and Reforms seeking a new mechanism for the Appointment of Judges in High Court and Supreme Court.
The Petition states that the collegium system of appointment of Judges to the higher judiciary, one which is nothing but rewriting of the Constitution, to keep political interference in judicial appointments completely at bay, so too to appoint the very best and most deserving Judges, has totally failed and it has, instead, meant monopolizing the august office of Judges of the higher judiciary by the kith and kin of sitting and former Judges of the Supreme Court and High Courts, their juniors, celebrated lawyers.
According to the Petitioners, though an independent Judicial Appointment Commission, as reflected in NJAC Act was set aside, that is not the end of the road.
“The order dated 16.12.2015 passed by Supreme Court has given a road map for improvement of the collegium system of appointment of Judges. It is within that road map to advertise vacancies, invite applications, establish a Secretariat to scrutinize those applications, short-list the same, select the candidates on a tentative basis, notify such selection to the public at large, invite objections and complaints, if any, from the public, etc., all to be done in a transparent manner, making it expressly clear that the entire mechanism is amenable to the provisions of the Right to Information Act, 2005”, states the Petition.
The Petition prays for the following reliefs
(a) to declare that the fundamental rights of the Petitioners, namely, the members of the 1st Petitioner and Petitioner Nos.2 and 3, all ordinary lawyers considering themselves to be considered for appointment as a Judge of the High Court or the Supreme Court along with hundreds and thousands of such lawyers, stand abrogated since the mechanism of appointment of Judges independent of the executive and, to emphasize, equally independent of the judiciary, was killed even before it was allowed to take birth by the judgment in the NJAC case and no mechanism in substitution thereof, which will provide for a just, fair, open and non-discriminatory selection and appointment of Judges from a diverse and wider pool of candidates than the traditional ones, namely, the kith and kin of Judges, their near and dear ones, has been brought into existence and that the proposed Memorandum of Procedure, which seeks to provide for a non-statutory, if not secretive, eligibility criteria and procedure, is violative of Part III of the Constitution;
(b) to declare that the concept of democratic legitimacy in the matter of appointment of Judges to the higher judiciary, so too to secure a selection from a diverse and wider pool of candidates, so too a fair and non-discriminatory selection and appointment will bring an end to the patronage and influence of the so-called legal luminaries and, above all, to be seen by the public at large that the Judges who decide their affairs and destiny are selected in the fairest possible way, independent of both the executive and the judiciary, and that no appointment could be made solely on the recommendation of the collegium but could only be on the recommendations of a non-governmental/ non-departmental public body which is, to repeat, independent of both the executive and the judiciary;
(c) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the Union of India to bring into existence such legislative or administrative measures for the creation of a non-governmental/non-departmental public body, nay, a Judicial Appointment Commission which will be independent of both the executive and the judiciary to select Judges for the higher judiciary by inviting applications from all eligible candidates, invite references from all stakeholders, the Bar Associations, the public at large, and above all to see that “Judges are not only selected in a fair and open way but are seen by the public to have been chosen in the fairest possible way taking nothing into account other than their merit and character”;
(d) to grant a writ of injunction or prohibition restraining and prohibiting the Respondents from selecting and appointing Judges to the higher judiciary except by way of a non-discriminatory process which will afford equal opportunity to be considered for all eligible lawyers, where there is no room for patronage and influence but which will ensure a fair selection from a diverse and wider pool of candidates, so too it will appear to the public at large that Judges who decide their affairs and destiny are not selected in an opaque manner but that they are not only selected in a fair and open way but are seen by the public to have been chosen in the fairest possible way taking nothing into account other than their merit and character;
(e) to declare that if legal luminaries could seek a declaration that the aforesaid Acts are unconstitutional, the ordinary lawyers, the lay people, also have a right to seek a declaration that the said Acts are constitutional and that if the validity of the said Acts could be questioned, then all those who support and oppose the same – millions and millions on each side – have a right to be heard.
Read the petition here.