August 17, 2014
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CPI(M) Stand on Appointment & Accountability of Judges

The following is the text of the letter sent to the union law minister, Ravi Shankar Prasad by CPI(M) general secretary, Prakash Karat, spelling out the CPI(M) stand on the appointment and accountability of judges. The letter was sent on July 30, 2014. I THANK you for your letter dated July 17, 2014, seeking our Party’s view on the subject of appointment of judges and how to provide for accountability of judges. The method of appointment of judges in India has many infirmities and it is not open to scrutiny and lacks transparency. Perhaps, only in India are judges appointed by judges themselves. As you are aware, till 1993 the executive had a role in the appointment of judges in India. After the Supreme Court decision in 1993 and the opinion rendered by a nine-judge bench of the Supreme Court in 1998, the present system of collegium of judges making proposals for appointment of judges came into existence. The method of appointment of judges by judges themselves poses many challenges to the democratic system. It is not capable of properly addressing the diversities in India. Lack of public scrutiny and transparency may lead to appointment of judges who hold similar views and have same orientation. It may also lead to nepotism within the judicial system. When reforming the system of appointment of judges, it is also necessary to ensure that there is no imbalance created with the executive having a dominant role. We suggest the constitution of a National Judicial Commission with representatives from the three organs of the State – the executive, legislative and judiciary; as well as representatives of the Bar Association and the general public. The Commission shall recommend persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices of the High Courts and judges of High Court to the President of India. The following should constitute the National Judicial Commission: 1. Chief Justice of India, ex-officio chairperson 2. One of the judges of the Supreme Court, nominated by the collegium of all judges of the Supreme Court 3. Chief Justice of one of the High Courts, nominated by the collegium of High Court chief justices 4. The union minister of law and justice, as ex-officio member 5. Two eminent persons to be nominated by a collegium consisting of the prime minister and the leader of the main opposition party in the Lok Sabha 6. A nominee of the Bar Association of India. It should be ensured that at least one of the above is a woman. Also one amongst the two eminent persons shall be by rotation nominated from amongst persons belonging to scheduled castes, scheduled tribes, other backward classes and minorities. The system of appointment should be transparent and subject to public scrutiny. A mechanism may be devised whereby views on the names proposed to be appointed as judges can be submitted to the Commission. There is no need for two separate bodies for appointment of judges and for judicial standards and accountability. The National Judicial Commission should be vested with powers to conduct enquiries into the misbehaviour of a judge and to impose minor punishments. In the case of proved misbehaviour or incapacity of a serious nature of the judge, warranting removal, the National Judicial Commission shall request the judge to voluntarily resign. If the concerned judge fails to do so then the Commission shall advice the president to proceed for the removal of the judge by referring the matter to parliament.