“We do not need a reactionary move setting up a JAC merely for the sake of it, for that would achieve nothing.” – Former Delhi CJ, AP Shah

In an article published in the Times of India, former Chief Justice of Delhi, Justice AP Shah has called for a rational, “well thought out” process for appointing judges to the higher judiciary. The retired judge, who was the Chief Justice of the Madras High Court as well as the Delhi High Court, also spoke out against the current, closed, system of judicial appointments via a collegium system..Highlighting the opaque manner of judicial appointments, Justice Shah gives the recent elevation of two High Court Chief Justices “overlooking other, more senior, judges” as an example of why the system needs a re-think. Specifically, Justice Shah refers to the fact that Justice Bhaskar Bhattacharya, current Chief Justice of Gujarat, was not elevated despite his seniority..Specifically referring to Chief Justice Bhattacharya, (who also had the support of the Gujarat High Court Advocates Association), Justice Shah writes,.“It is widely understood that Bhattacharya’s appointment to the SC was overlooked because a collegium member bears personal animosity against him.”.Despite the shortcomings of the current system, Justice Shah does not argue for a hasty decision of adopting a Judicial Appointment Commission..Merely setting up a JAC, without anything more, cannot solve present problems plaguing the appointment issue. To think of it as a panacea would be to repeat the mistake committed in instituting the collegiate system, especially given the complete absence of any defined criterion by which appointments should take place.In the absence of norms, a JAC would only change the circle of high priests, leaving untouched the mystique behind the sacred ritual of appointments. To devise an appropriate solution, it is imperative to look at the intended rationale in establishing a JAC, and identify the norms on which it would work..While calling for greater transparency within the appointment process, and placing greater emphasis on merit, Justice Shah admits that there is also a need to look at the larger picture; to understand the social representation within the judiciary..[I]t is equally important to consider social diversity in public institutions and the need to include hitherto under-represented groups – not just backward classes and minorities but also women. This policy aim will engender greater public confidence in judges..However, the very creation of a Judicial Appointment Commission remains shrouded in uncertainty. As per the Indian Express, an official in the Ministry of Law has expressed concerns on the very introduction of the Judicial Appointment Commission Bill, observing,.“How can we introduce or get it passed in Parliament when there is no consensus among political parties and the government?.Justice Shah’s critique is the latest in a string of arguments in favor of dispensing with the collegium system. That the critique comes from someone who has witnessed the working of the collegium from up close, is certainly something worth pondering over. While at the Delhi High Court, a Full Bench headed by Justice Shah upheld a single judge decision that the office of the Chief Justice of India fell within the ambit of the Right to Information Act. On appeal, the Supreme Court stayed the judgment and the matter is currently pending before the Court. Justice Shah may also be remembered for his decision in the Naz Foundation case of 2009, which struck down the constitutional validity of S.377 of the Indian Penal Code. The final judgment in an appeal against this judgment has been reserved since March 27, 2012..In 2011, Justice Shah was appointed as Chairman of the Broadcasting Content Complaints Council, a self-regulatory body established by the Indian Broadcasters Federation. The legal standing of this body, has recently been questioned in a writ before the Rajasthan High Court.