National Judicial Appointments Commission (NJAC) Act struck down by the Apex Court as unconstitutional – Independence of judiciary in manner of appointment of judges – Suggestions for improvement of present collegium system are invited from the Bar at the next hearing on November 3, 2015

In a landmark judgment, the Supreme Court has declared the National Judicial Appointments Commission (NJAC) unconstitutional. The collegium system where judges appoint judges, will continue, as according to the Supreme Court the NJAC Act interfered with the independence of judiciary.

One of the objects of the All India Federation of Tax Practitioners (the “Federation”) being “to strive and work for independence of Honourable Courts”, we at AIFTP welcome the Supreme Court judgment. The senior members of the Tax Bar were always of the opinion that the present system of the appointment of judges should be continued albeit with increased transparency.

The Tax Bar has witnessed how the Executive in the past has tried to interfere with the justice delivery system of the Income-tax Appellate Tribunal. It is only due to a Public Interest Litigation filed by the ITAT Bar Association, Mumbai, and with the strong support of the then President of the ITAT, Honourable Shri T. V. Rajagopala Rao, could the independence of the ITAT be saved by the higher Judiciary. It may be noted that the then Law Secretary was held guilty of contempt for interfering with the judicial functioning of the ITAT. [ITAT v. V. K. Agarwal (1999) 235 ITR 175(SC), Ajay Gandhi v. B. Singh (2004) 265 ITR 451 (SC)]. This scenario of developments must be kept in mind while welcoming the above Apex Court judgment.

One can only imagine if the Apex Court would not have interfered, then what could have been the fate of the Mother Tribunal of our country and the taxpayers. One would also appreciate that the then Honourable Prime Minster of India, Shri Atal Bihari Vajapyee, on 16-1-2004, on the occasion of the release of commemorative postage stamp in memory of late Shri N. A. Palkhivala at Mumbai, had stoutly deprecated the Emergency thus: “In those dark days, the battle for democracy was fought by many people in many different ways. Many of us in politics under the leadership of Jaiprakash Narayan fought it in prisons. But I have no doubt that one of the finest battles was fought in the Court rooms and that fighter was Nani Palkhivala”.

Judges could deliver verdicts such as that in Kesavanand Bharti’s case [AIR 1973 SC 1461] only because of their fierce independence. One would also appreciate that in taxation matters, the Government is always a party. If any High Court Judge decides a high-stake matter in favour of the assessee, the Government may brand him as a pro-assessee Judge thereby jeopardising his chances of being elevated to the Apex Court, if the NJAC was to continue. We are of the firm opinion that the Honourable Apex Court has rightly done its lawful duty by striking down the Act as unconstitutional. Having said that, we are also of the opinion that there is a lot of scope for improvement in the current process of selection of judges and we at AIFTP level shall contribute our mite in the process.

Therefore, while the Supreme Court has upheld the collegium system, it has also perhaps realised certain inherent flaws in its functioning which is why on November 3, 2015, the Supreme Court will consider suggestions for improvement of the present collegium system. One of the most vociferous criticisms of the collegium system is the lack of obvious transparency with which it functions. The Federation feels that integrity and merit are unequivocally the two most essential factors that should be considered in the appointment of Judges of the Supreme Court and High Courts. Therefore, the Federation in the interest of the nation suggests as under:

1. Steps must be taken to introduce transparency and wider consultations with Bar Associations and senior members of the Bar whose integrity is beyond reasonable doubt;

2. There could be three categories of selections:

(i) After looking at the performance of advocates in courts and after enquiring into their credentials, advocates may be selected by the collegium, and thereafter, he or she may be requested to forward an application in appropriate form.

(ii) Applications maybe invited by the Registry of High Courts from advocates who are eligible to be appointed as Judges.

(iii) Selection of Judges from the lower courts / judicial authorities such as the Income-tax Appellate Tribunal, CESTAT as well as Sales Tax Tribunals across the country may be considered.

3. Eligibility criteria may be prescribed, such as:

(i) Cases involving important issues argued by the applicant;

(ii) Details of income to be declared for last five years by practising lawyers;

(iii) Recommendations of at least three Senior Advocates or Advocates having more than 30 years of practice in that High Court may also be considered;

(iv) Importantly, contribution to the development of the profession made by the lawyer may be given additional weightage in the selection process.

4. After scrutinising the applications, the names of shortlisted candidates may be circulated in the full court of the respective High Court or at least amongst its senior Judges and thereafter, the names of approved candidates be forwarded to the Supreme Court collegium.

5. In the era of specialisation, persons who are well conversant with certain specialised areas of law such as taxation, PIL, RTI, IPR etc. deserve to be appointed. In the Income–tax Appellate Tribunal, for instance, certain Judicial Members deserve to be appointed as High Court Judges. As per the transfer procedure, a professional appearing before the Income-tax Appellate Tribunal is not posted as a Member in the same State where he was practicing. Therefore, the collegium of the High Court concerned may not have the mechanism to judge the credentials of the prospective candidates from the Income–tax Appellate Tribunal. Thus, the collegium of the High Court may, in consultation with the Income-Tax Appellate Tribunal, devise an appropriate internal mechanism for obtaining feedback about the proposed candidates. This will help attract deserving candidates of the Income–tax Appellate Tribunal to the High Court.

6. As regards appointment and elevation to the Apex Court, the present system of collegium should be continued with greater transparency and accountability, only on merits

The above are some suggestions given in a limited time to improve the collegium system. Members are requested to send in their views to at
[email protected]

Dr. K. Shivaram

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