A free and independent judiciary is a cherished value in a democratic polity like ours. The founding fathers provided adequate provisions in the Constitution to ensure these values. However, lack of transparency in the appointment of judges to the High Courts and the Supreme Court of India and in their functioning has, of late, caused deep concern to legal fraternity and civil society. We all know the case of a High Court judge who, as a practicing lawyer, had committed certain serious financial irregularities. He refused to resign and continued to function as a judge. Impeachment proceedings have been launched against a Chief Justice of another High Court for judicial misconduct.
There is also the case of a High Court judge who was appointed to the bench in utter disregard to the adverse remarks about his integrity by the Chief Justice of the said High Court. That the conscientious chief justice resigned without making a public fuss about it, is another story. The Chief Justice went unsung though he rigorously adhered to high moral standards expected from judiciary. In recent years, serious questions have been raised about appointments to even the apex court.
A few weeks ago, several jurists publicly expressed regret over the manner in which a deserving High Court Chief Justice was denied promotion to the Supreme Court for non-judicial considerations.
We have experimented with three different systems for appointments to superior judiciary during the past 60 years. Each one of them was found deficient. Initially, it was the Executive that had the final word. It worked rather smoothly for more than two decades. During Smt Indira Gandhi’s Prime Ministership, Executive powers were grossly misused to supersede three Supreme Court judges to appoint a “committed” judge as the Chief Justice of India. All the three superseded judges resigned leading to a public outcry against her arbitrary action. The apex court in what is known as first judges’ case (1982) sheepishly handed over the power of appointments to the Executive. This was exploited by successive Congress Governments by indulging in gross arbitrariness in appointment to higher judiciary.
In 1993, the Supreme Court restored to the Chief Justice of India the primacy in judicial appointments. Within a few years, the system cracked and there were persistent demands for a review of the system.
In a presidential reference made during NDA Government, the Supreme Court decentralised the power of the CJI in favour of a collegium comprising senior most judges of the apex court. This system too failed to deliver. Non-judicial considerations and “quota system” in appointment and promotion of judges became the order of the day.
Recent disclosures that successive CJIs had appointed and confirmed several high court judges without reference to the collegium left no one in doubt that the system has virtually collapsed. Jurist and the legal fraternity as also the Bar Council of India-a statutory body-are unhappy with the existing system and want it to be suitably changed.
There is, however, no unanimity on who should be the final authority in such matters.
Union Law Minister M Veerappa Moily’s recent statement that the Government would bring a constitutional amendment to change the system of judicial appointments is a move in the right direction. However, his assertion that the present system needs to be changed as it had come in the way of ending shortage of judges is not convincing.
Perhaps he is reluctant to name the real reason namely the need for the Executive and Legislature to have a say in the appointment to superior judiciary. As of now, India is amongst few countries where judges appoint themselves. The Minister has also argued in newspaper articles and interviews that the collegium system didn’t reflect the two judgements that created the present system. One is not sure.
Congress Governments’ track record doesn’t inspire confidence about the party’s real intentions. It may try to restore the pre-1993 system in which the Executive has the primacy. Under Articles 124 (2) and 271 (1), members of the superior judiciary have to be appointed by the President of India “after” consultation with the CJI. Initially, the interpretation was that “after” consultation doesn’t mean the Government was bound by the CJI’s opinion. This had led to arbitrary appointments and promotions that undermined the dignity and credibility of the judicial system. The Law Commission, on the other hand, had recommended a National Judicial Commission/Council to monitor the appointment and transfer of judges. It appears to be the most desirable option available. Since no constitutional amendment can get through in Parliament without BJP’s support, it is for the principal opposition party to ensure that under the new system the Judiciary gets the primacy but the Executive and the enlightened public opinion in the form of eminent jurist in the Commission/Council provide a strong safeguard against arbitrary appointments to the higher judiciary.
Underlining the need for transparency in judicial functioning, V R Krishna Iyer, the noted jurist, had argued for vigilance against judicial misconduct, incompetence and institutional turpitude. He had also pleaded for judicious application of contempt law so that media is not prevented from its duty to making informed criticism of the judicial functioning. Impeachment as punishment for judicial misconduct, provided for under Article 124 (4), is unworkable. It was proved in the case of Justice V Ramaswami of the Supreme Court who escaped punishment because of a political deal. The Congress party didn’t participate in the voting on the motion of impeachment that saved the judge. He later became Chairman of the Tamil Nadu State Law Commission and unsuccessfully contested parliamentary elections in 1999 on the AIDMK ticket. The proposed Judges Standards and Accountability Bill, 2010, needs to be debated in Parliament in the light of the eminently sensible suggestions made by Dr LM Singhvi.
He argued that providing for impeachment as the only punishment for judicial misconduct was like providing death as the only punishment to criminals, including petty thieves. He came out with a hugely sensible suggestion to put in place a redressal mechanism with well laid out procedures to punish judges found guilty of any misconduct or incompetence. The punishment may be admonition, warning, request, transfer, and curtailment of jurisdiction or anything more drastic.
His emphasis was that the entire process needed to be internal that must culminate in a decision one way or the other within a time bound schedule. Action against judges, he insisted, must be taken discreetly, internally and soberly. All these precautions are necessary to maintain the dignity and credibility of the institution while ensuring judicial transparency and accountability.