Basis for appointment of judges must be placed in public realm: Justice DY Chandrachud in RTI Act judgment

Basis for appointment of judges must be placed in public realm: Justice DY Chandrachud in RTI Act judgment

Aditya AK

In a landmark decision passed today, a Constitution Bench of the Supreme Court ruled that the office of the Chief Justice of India would come under the ambit of the Right to Information Act (RTI Act).

The judgment passed by a Bench of Chief Justice of India Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta, and Sanjiv Khanna highlights the importance of transparency in the functioning of the Judiciary.

A separate, concurring judgment passed by Justice Chandrachud is worthy of a read for more than one reason. Apart from resolving the contradictions between judicial independence and accountability, Chandrachud J also makes some pertinent observations regarding judicial appointments.

The mystery surrounding manner in which judicial appointments take place – and there are more than a few recent examples – has been the subject of public debate. It has been long argued that the Judiciary does not hold itself to the same standards of transparency it expects from other constitutional functionaries.

At the very end of his 113-page judgment, Justice Chandrachud calls for transparency in the manner by which judges are appointed. He observes that for the application of the RTI Act to the Judiciary to have a meaningful impact, certain steps are required.

“Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments.”

Justice Chandrachud goes on to state these substantive norms with regard to judicial appointments must detail the following:

(i) The basis on which performance of a member of the Bar is evaluated for the purpose of higher judicial office;

(ii) The criteria which are applied in determining whether a member of the Bar fulfils requirements in terms of:

a) Experience as reflected in the quantum and nature of the practice;

b) Domain specialization in areas which are geared to the evolving nature of litigation and the requirements of each court;

c) Income requirements, if any, having regard to the nature of the practice and the circumstances prevailing in the court or region concerned;

d) The commitment demonstrated by a candidate under consideration to the development of the law in terms of written work, research and academic qualifications; and

e) The social orientation of the candidate, defined in terms of the extent of pro bono or legal aid work;

(iii) The need for promoting the role of the judiciary as an inclusive institution and its diversity in terms of gender, representation to minorities and the marginalised, orientation and other relevant factors.

He goes on to state that disclosing these substantive standards publicly will promote confidence in the appointment process.

Referring to the public interest associated with the manner in which judges are appointed to the higher judiciary, Chandrachud J states,

“There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

[Read the judgment authored by Justice DY Chandrachud]

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