A couple of days ago – a Bar attached with the Supreme Court came out with a proposal to appoint High Court Judges from the Advocates practising in the Supreme Court. The present Chief Justice of India, N. V. Ramana, seems to have taken such suggestion graciously and on the face of it he gave his affirmation by saying he would consider it. No doubt, it is a welcome step.
How present appointment takes place?
If reports are to be believed High Court judges are currently appointed from the set of names recommended by the State High Court Collegium. Collegium is still a sacrosanct body consisting of select Judges of the High Court of the State and whose decision in choosing prospective candidates for the post of High Court judges are final. However, SC’s Collegium and the Union Government have final power to omit or add to the candidates list forwarded by the State Collegium. Unfortunately, transparency in selection of High Court Judges is still a maze!
Why such conundrum exist in the selection of High Court Judges could be traced to a string tagged at Article 50 of the Constitution of India – which reads as follows; The State shall take steps to separate the judiciary from the executive in the public services of the State. Even after seven decades of coming into effect of our Constitution, neither our Judiciary nor Executives or the Legislatures have come forward to separate the Judiciary from the State’s interference.
Top of absurdity was, in 2014, Union Government by breach of Article 50 of the Constitution, inserted 99th Amendment [Act 2014] and passed National Judicial Appointments Commission in Article 124A, 124-B and 124-C by legalizing its stake into the appointment of Judges in the High Courts and Supreme Court. It was a different story that in 2015 Supreme Court struck those Articles by terming unconstitutional.
It is high time for the State to work on separation of Judiciary from the sphere of direct or indirect interferences. Even in that case, Supreme Court must work towards creating of a system wherein Judges of the High Courts and Supreme Court be appointed not alone on the calibre and exposure but also on the principles of social justice. Socially backward advocates must be given fair chances to get into the top echelon of justice delivery system.
Nowadays it is found that even a socially backward person who has all the qualities; education, calibre and exposure in law been denied of his rights to become a Judge of a High Court or Supreme Court just for the sake of his caste he belongs to. Or, otherwise, collectively, there have been no adequate representation of the Judges based on social reservation [is found in the country]. Being an Advocate, I do not want to go deep into this arguments but statistics speaks on its own – who’s who Judges of the HC and SC’s are!
And as a first step towards separating Judiciary from the State, the State High Courts should take steps to appoint Magistrates [on its own] from the practising Advocates. The present appointment procedure by the State Service Commission must be limited for other employment avenues found in the State, but, not for the Judiciary.
High Courts can never think of appointing Magistrates without the approval of the Supreme Court, hence SC should take such step which grant power to appoint Magistrate by the High Court of the State.
Judiciary requires to be completely separated from the State’s interference and only from the appointments of personnel such separation is possible. As long as such appointments are made solely by the Judiciary, I don’t think the essence and spirit of Article 50 of our Constitution could literally be attained by us!