Deal with Memorandum of Procedure on the judicial side, senior counsel Anil Divan

In the wake of the recent controversies surrounding appointments and transfers of judges of the higher judiciary, the Vidhi Centre for Legal Policy and the Campaign for Judicial Accountability and Reforms organised a panel discussion on August 31, 2016 at India International Centre, Delhi.

The discussion was attended by Senior Advocates Anil Divan, Shanti Bhushan and Sanjay Hegde, with two separate panels taking the discussion forward.

The first panel included Anil Divan and Shanti Bhushan, senior journalist Manoj Mitta, the Director of National Judicial Academy Dr. Mohan Gopal and CPI(M) leader Nilotpal Basu.

The two points of focus were the need for greater transparency in appointments, and the process of drafting of the Memorandum of Procedure for appointments to the higher judiciary.

Anil Divan
Anil Divan

Divan was very categorical in his remarks, stating that the Supreme Court should recall its order by which it had left it to the Centre to finalise the MoP.

“It is a judicial order, recall that order”,

He also said that the matter should be dealt with by the Supreme Court on the judicial side given that the Centre is not co-operating with the drafting of the MoP.

Divan also questioned the eligibility criteria in appointing judges to the higher judiciary. He spoke briefly about the need for having an independent secretariat with complete control on the process of appointing the judges.

Shanti Bhushan elaborated on the tone set by Divan and drew a comparison between the state of the judiciary during the 1950s and 60s and the present times.

He also spoke at length about how the ‘experience benchmark’ was resulting in delaying elevation of bright minds to the Bench.

“A judge becomes “eligible” to be appointed as a High Court judge only if he is around the age of 40-45 years and as a Supreme Court judge if he is of the age of 50-55 years.

Mediocre judges are sitting on the Bench while brilliant minds are not being appointed only due to the reason that the mediocre judges are senior in age to the actually worthy candidates.”

He said that this practise was arbitrary and baseless because the age of a person cannot determine his capabilities.

Manoj Mitta then took the discussion in a new direction by bringing in the aspect of Right to Information and appointments. He questioned as to why judicial appointments were not under the RTI, and that it was necessary that assets be disclosed if an individual was being considered for appointment. Mitta said that the need for transparency outweighed the need for a judge’s privacy.

The second panel comprised Senior Advocate Sanjay Hegde, Professor Aparna Chandra and General Secretary of National Campaign for Dalit Human Rights, Paul Divakar. Discussions were centered on appointments to the subordinate judiciary.

Hegde stressed on the dissonance between the objective questions and answers that are asked for judicial service exams and the problem-solving skills that a judge need to actually possess. He also criticized the lack of institutional vision apparent in the length of terms of Chief Justices, which he dubbed as “too short” for individuals to make any effective change.

Chandra spoke of diversity along caste and gender lines within the subordinate judiciary, citing the lack of available data on these metrics and a glass ceiling that potentially exists for women in the judiciary.

Photo by Sakshi, VCLP