IN THE SUPREME COURT OF INDIA CIVIL WRIT JURISDICTION WRIT PETITION (C) NO. 13 OF 2015 IN THE MATTER OF: W .in SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION & OTHERS ​ PETITIONERS ​ ​ ​… ​ ​ ​ ​… INDIA ​ V EL UNION OF RESPONDENT A VERSUS LI Report filed by Ms. Pinky Anand, ASG and Arvind P. Datar, Senior Advocate on representation/suggestions for improving the collegium 1. We have received over 60 representations/suggestions from various associations and individuals. These include emails and letters which were directly sent to the Supreme Court and copies thereof were given to us. All representations/suggestions received till 11:45pm on 04.11.201have been taken note of. As per the directions of this Hon’ble Court, the representations/ suggestions were to be divided to 4 categories as enumerated below. But it was found that several suggestions could not be classified under any of the four categories and, therefore, a fifth category - "miscellaneous" was added. The five categories are:- (i) Transparency (ii) Eligibility (iii) Secretariat (iiii) Complaints, and (v) Miscellaneous. 2. The representations have been numbered from R-1 to R-63. The tabular chart has been annexed to this report. In addition, copies of the representations/suggestions that were received have been xeroxed and compiled. In the case of R-14, the representation comes into 11 pages but the balance of 190 pages of articles, newspaper reports and so on have not been xeroxed. Similarly, one representation sent to the Supreme Court has merely 90 pages of extracts of various judgements but not a single suggestion; this has not been included. A letter sent to the Supreme Court also contained the views of two former Chief Justices of India but these were in the context of the proposed National Judicial Commission made in 2010. The note/views contain suggestions about the composition of such a commission and the need for an All India Judicial Service envisaged by article 312 of the Constitution of India. As it did not contain any suggestion pertaining to the above categories only potions of the 70 page note have not been included in the compilation. LI V EL A 3. W .in This was necessary for tabulation and analysis. We have carefully examined these representations/suggestions and prepared a tabular chart-Annexure “A” - setting out the details of the representations/suggestions that have been made by individual associations/persons. The chart has six columns which indicate under which category a particular association/individual has made a representation or suggestion. It was found that, in some cases, there is an overlap between one or more categories. In such cases, we have chosen the most appropriate category. 4. Shri F.S. Nariman, Senior Counsel had given two compilations. The first contains an introductory note and relevant extracts of the judgment passed by this Hon’ble Bench on 16.10.2015. The second consists of the existing memorandum which shows the procedure for appointment and transfer of judges. The suggestions of Shri F.S. Nariman are shown in Italics. As this was in a different format, it has not been included in the tabular form but the contents of the memorandum have been incorporated in the appropriate categories. In particular, the introductory note on transparency is important. This has also been dealt with in the category “Transparency”. 5. It was found that the representations/suggestions under each category were often repetitive; consequently, a summary of such common representations/suggestions has been given hereinbelow. Suggestions which were not common have been indicated separately under each category. 6. Transparency: The general suggestions as well as special suggestions under this category can be summarised as follows:- A. General Suggestions: There must be well-defined criteria that should be established by the Supreme Court for appointments to the High Courts and to the Supreme Court. The criteria must refer to age, merit, seniority, integrity, income criteria, academic qualification, etc.; W .in (i) (ii) The criteria should be made available on the website EL A of the Supreme Court as well as of the High Courts. In some suggestions, it was requested that these vacancies should be notified 6 months in advance; (iii) LI V Applications should be permitted for appointment apart from the names being recommended by judges/collegium; (iiii) Eligible candidates who are to apply must give specific details. In certain cases, it was suggested that there should be a standard questionnaire. It was also suggested that the names of the applicants/candidates may be supported by recommendations of 2/3 senior advocates; (v) The bio-data of the candidates must indicate their relatives who are judges; (vi) The names of the applicants/candidates with the bio-data should be posted on the website. Some suggestions stated that the disclosure on the website should only be with regard to the shortlisted applicants/candidates after they have been selected by the High Court collegium; In a number of cases, it was suggested that the High Court collegium should at least conduct an informal interview with the candidates before their names are finalised. This was particularly important because the candidates could be from different Benches of the High Courts and may not know the collegium judges. (viii) Shri F.S. Nariman has pointed out that too much transparency could be counterproductive and hamper effective decision making. Moreover, the information obtained may not be used for appropriate purposes. Similarly, another note by Shri Sunil Gupta (R-17) points out the need of balancing transparency with confidentiality. It was pointed out that the transparency should be maximum at the stage of applications /nominations and may serve public interest. But there must be confidentiality during the consultative processes undertaken by members of the collegium. The collegium judges must be immune from any kind of challenge in courts or otherwise as their work is in discharge of high constitutional or sovereign functions. EL A (ix) W .in (vii) The Minutes of the collegium Meeting must be recorded. In some cases, it was suggested that the Minutes should be recorded but need not be disclosed or made available publicly. LI V (x) (xi) The candidate should be informed of any objection and given an opportunity to meet the objection. Today, the candidate never gets such a change. B. Special Suggestions: (i) Union of India has specifically suggested a three-step procedure of appointment of judges to the Supreme Court and High Courts that comprises the recommendation and appointment through a consultative participatory exercise. It further suggests that the detailed working of each of these steps should be made known publicly; (ii) There should be an Annual Report on appointments which should be publicly available; (iii) All procedures of the collegium must be recorded in writing and transferred to the National Archives of India after 30 years for use by scholars; (iiii) A panel of eligible candidates must be prepared in advance and appointment may be made through this panel; Before the names are finalised, there should be an informal consultative meeting with the Chief Minister to avoid delay in the clearance of files; (vi) An IB report regarding the candidates must be obtained before the name is sent by the High Court collegium to the Supreme Court. Only candidates whose names are cleared should be sent to the Supreme Court; (vii) The Minutes of the collegium meeting must be subject to RTI Act. (viii) The candidates must disclose membership of any political party. EL A W .in (v) candidates to ensure transparency. LI V (ix) Rules/guidelines must be prescribed for selection of 7. Eligibility: 7.1 The maximum number of representations/suggestions have come under this category, which can be further divided into following sub-categories:- 7.2 Appointment of Advocates to the High Courts:(i) The General Suggestions are:(a) Age limits, legal knowledge, number of cases appeared, income limits, etc. must be specified. It is suggested that there should be a welldefined criteria on this account and this must be made available on the website. (b) Apart from the candidates recommended by the High Court Judges, it is suggested that applications should be invited. This can be termed as “expression of interest” of a candidate to become a judge. (c) The nominations can also be made by senior advocates. (d) The zone of consideration should not be merely from relatives of advocates or judges. (e) There must be an interview by the collegium of the shortlisted candidates. There were also suggestions that the shortlisted candidates for High Court should also be interviewed, if necessary, by the Supreme Court collegium. (g) A (f) W .in “Zone of consideration” should be a panel of all suitable candidates. (h) Advocates practising in the District Courts must also be considered. LI V EL Judicial members of Tribunals should be considered for elevation. (ii) Special Suggestions: (a) Candidates from other High Courts can also be considered. (b) There must be representations for minority, backward classes, etc. One suggestion is for a specific quota system of 27% OBC, 15% SC and 7 ½ % ST. (c) Suggestions from Chief Minister Governor may also be permitted. and (d) A benchmark as practised in Australia may be followed. Similarly, there must be “point grading system” for evaluating the minutes of independent candidates. Such evaluation can be done by an independent committee consisting of retired judges or senior advocates. (e) Judges who are heading specialised benches, criminal law, and taxation can recommend candidates in their field of specialisation for elevation. (f) Written examination and interview for elevation to High Courts. (g) W .in Advocates-on-record practicing in the Supreme Court are not considered for elevation in the parent High Courts. Consequently, they are at a disadvantageous position. It is suggested that the Supreme Court collegium must recommend suitable candidates for appointment to their parent High Courts. (h) The applications/names shall be scrutinised by a committee. A Special consideration must be given for advocates who are appearing in Legal Aid cases and doing pro-bono work. EL (i) LI V (j) There must be more number of women judges. 7.3 District Judges to High Court:(a) Seniority should generally be the rule with exceptionally meritorious candidates being also considered. (b) The ratio of District Judges as a proportion to advocates requires to be altered to 50 : 50 or 75 : 25 (75% should be from the District judiciary). There is a counter suggestion to make the ratio 25:75. (c) The minimum requirement of 18 months of service should be reduced to 12 months in view of the delay in making appointment. 7.4 High Court to Supreme Court:(a) Only Chief Justices should not be elevated but candidates of merit should also be considered. (b) Union of India has pointed out that in the last decade, largely Chief Justices are alone elevated and other deserving puisne judges must be considered. (c) All High Court Judges who have completed 5 years should be eligible for elevation to Supreme Court. (d) Three senior most judges of each High Court should be eligible. (e) 10% of the Supreme Court Judges should be from W .in the Bar. Appointments of the Supreme Court should be based proportionately on the population of each State. (g) Due regard should be given to specialisation for elevation to Supreme Court also. EL A (f) LI V (h) Rules for inter-se seniority of High Court Judges (i) should be determined. For example, if two persons are elevated on the same day, the designation of one of them as seniority should be taken. Similarly, various other parameters should be considered to decide inter-se seniority and these should be clearly fixed. There should be a written examination for elevation to Supreme Court. 8. Secretariat:8.1 The Union of India has suggested that a proper Secretariat must be established in the Supreme Court and each High Court to ensure efficient selection of judges. This must be a full time secretariat with a senior officer, in-charge and such other staff as may be necessary. 8.2 The Secretariat will collect background information about Members of the Bar and District Court Judges who are to be appointed to a High Court. 8.3 For existing judges to be appointed to the Supreme Court, information will be collected as regards number of judgements delivered, landmark cases, quality of judgments and other relevant factors. 8.4 For collecting information of distinguished jurists to the appointment of the Supreme Court information regarding number of publications and other factors to assess academic credibility. 8.5 The secretariat should be completely independent of the executive and will be responsible for preparing and classifying information and preparing an upto date data-base. The Secretariat should have the same status and independence Members of the Supreme Court Registry. 8.7 Mr. F.S. Nariman has suggested creation of High Court Appointment Committee with a Registrar. 8.8 There must be a Secretariat or an Appraisal Committee on a permanent basis headed by a legal academic who has been a director of the National Judicial Academy or a Vice-Chancellor of a law university. No practicing lawyer shall be appointed to the Secretariat. The Secretariat should prepare reports on prospective appointees which should include analysis of judgments, backgrounds, quality of work as an advocate, integrity, whether he has relatives practicing law or are judges of High Court/Supreme Court. LI V EL A W .in 8.6 8.9 There should be full time broad based Search Committee and Secretariat to assess the collegium in making appointments. 8.10 Chief Justices M.N. Venkatachaliah and J.S. Verma had also called for a “Search Committee”. 8.11 The Secretariat shall publish rules/regulations for making applications and also complaints against candidates. 9. Complaints:- There is a strong need to make an outright rejection of anonymous and frivolous complaints. Only complaint supported with material evidence should be considered. (b) Where the complaints are prima-facie correct, they should be referred to the Executive for investigation. (c) Making complaints: The names should be disclosed to the public 30 days before consideration by the collegium /High Courts/Supreme Court. Within this period, the public can write to the Secretariat/Appraisal Committee about their complaints and grievances against individual recommended members. Similarly, in the case of names proposed for elevation to the Supreme Court, complaint should be permitted within a 30 day period to the Secretariat/Appraisal Committee. W .in (a) (d) When complaints are made, the person concerned A should be given an opportunity to give an explanation. LI V EL (e) The examination of the complaint should be done by panel of retired judges. The complainant should be allowed to give oral/documentary evidence and the candidates should be given an opportunity to rebut the allegations. (The examination can also be done by judges other than those in the collegium) (f) Any person who has a specific information/complaint /evidence against the shortlisted candidates should intimate the same to the Secretariat. (g) The Secretariat can make an independent investigation into the information so received. Such information/ evidence can be taken into account in preparing a further shortlist of the candidates. Entire information as regards the complaint should be placed before the collegium by the secretariat. (h) Chief Justices M.N. Venkatachaliah and J.S. Verma suggested a “National Oversight Committee” for receiving complaints against all judges of Supreme Court/High Court including the Chief Justice of India. This Committee would have scrutiny panels and Investigation Committee/Panels to assess complaints and frame definite charges. 10. Miscellaneous:(a) The recommendation regarding transfer of judges has been included under this category. The Union of India has suggested that transfer should be made only on account of administrative exigencies, conflict of interest with relatives practicing at the Bar or at the request of the concerned judge. It is further suggested that: All recommendations for transfer must be made by the SC Collegium mandatorily consulting both the Chief Justices of the transferor and transferee High Courts. All views should be recorded in writing and communicated to the President for transfer. EL A (i) W .in (b) LI V (ii) ​In case any complaint is received about the working of the judge in a particular High Court, the same should be dealt with as part of disciplinary proceedings and in no case should the complaint become the basis of transfer of a judge to another High Court. This is to ensure adherence to the decision in Supreme Court Advocates-onRecord Association v. Union of India, (1993) 4 SCC 441 (per Verma J. as he then was) that transfers cannot be punitive. (iii) ​Every transfer order must record brief reasons for the transfer. This is necessary to secure confidence of the litigation public in both the transferor and transferee High Courts. (c) The factors and criteria on the basis of which a judge is transferred from one High Court to the other must be disclosed on the website. (d) When a judge is transferred without consent, reason for the transfer must be recorded and put on the website. The criteria and factors for appointing a puisne judge must also be made known to the public from the website. (f) A judge of a small High Court who has served about 5 years can also be transferred so as to acquire wider experience of judicial working in a larger High Court like Allahabad, Calcutta, Bombay, etc. (g) The Supreme Court collegium may transfer a judge if facts and circumstances have come to its notice that it is expedient in public interest that a particular judge should be transferred. (h) Increase in number of women judges: This is an urgent need to increase the number of women judges. The percentage is very low in most High Courts. (j) The collegium may include two senior members of the Bar (specially elected for this purpose). EL A W .in (e) V (k) LI (l) Strict time-line should be followed for making appointments; this is a major reason for large vacancies. Use of technology to generate data-basis of lawyers and judges by monitoring their performances or various parameters.