Need for a Judicial Commission

Cover Story: Need for a Judicial Commission 

On July 20, 2014 , every person woke up to the headlines of Justice Katju’s explosive revelations about how he was forced to forward the name of a clearly corrupt judge of the Madras High Court merely because there was pressure on the Central government which was at that point of time led by the Indian National Congress by an alliance partner now legendary for its corruption , the DMK. What the incident brought forward in graphic detail was the complicity of the judicial selection system in continuing a method of selection of judges though arising out of a perceived historic necessity but which has now degenerated into a system where politics and opacity have become the norm of selection.
A historical narrative as to how this procedure came to being is worth noting. It is well known that the Congress government through the 1960s and 1970s tried to pack various courts in the country with pliant judges. Matters came to a head during the Emergency when the Chief Justice of India was appointed superseding three other judges of the honourable Supreme Court who resigned as a result from the court. The calls for committed judiciary allegedly committed to the twin purposes of secularism and socialism but in reality committed to the Indian National Congress and it's the then supreme leader, raised questions about independence of the judiciary and the spectre of a supine democracy. Therefore when the judiciary was faced with weak governments subsequently after 1989, it overturned the constitutional balance and took over the power of appointment of judges from the political executive to itself by rereading provisions under Articles 124 and 217 of the Constitution. At that point of time the move was led by eminent judges who are now legendary for their independence and sagacity, like Justice Bharucha and Justice Verma. It seemed that possibly after the continuing pressure of the 1970s on the independence of the judiciary and subversion of the judicial system the constitutional balance had been finally corrected. It is in this context that the collegium system of selection of judges was born wherein judges selected persons to be appointed to the bench. It created a system whereby the Chief Justice and the senior most judges became the deciding factor as to appointment of judges of the higher courts. During the time when this collegium system was formulated and initiated it was looked upon as a check which balanced the power of the executive which had dangerously arrogated itself the powers to subvert the Constitution. The Emergency was too fresh in the minds of the people and the wrongdoings of the Indian National Congress through the 1960s, 1970s and 1980s had been too glaring.

However all institutions are not merely institutions but they are what those who are part of them make them out to be. Through the 1990s, and subsequently through the 2000 and the 2010s, what became apparent was that the collegium system then degenerated into a system which gave rise to its own political compulsions. Proximity to judges for the purposes of judicial appointment and the ways and means to get that proximity came to dominate the day-to-day workings of the court. The selection process of judges also became greatly opaque and no one knew as to what criteria was considered for the selection of judges. It was rumoured that the judges were being chosen based on familial, caste and religious grounds. Some of the more colourful rumours of the corridors even mentioned about monetary exchange. No doubt that the said rumours were false because possibly none of the rumours has ever been borne out by any evidence but the very fact that such rumours came to dominate the judicial selection process goes to show that the process became increasingly discredited.
This came to a head during the 2000s when there came out in the open increasing allegations from within the closed doors and the dark rooms of the selection process. Some of the allegations as to wrongdoings of Chief Justices of the various high courts and Supreme Court came to be headline news in everyday newspapers. This obviously lead to a signal loss
of respect of the judiciary within the population. The independence of the judiciary and the perception that it was above corruption have been the
reasons why people have always sided with the judiciary against the
executive. However it seems that in the first decade of this century that faith in the judiciary came to be increasingly eroded.
The other reason behind the collegium system was that it would create a truly independent judiciary. However as the Justice Katju incident showed judicial appointments specially during the 2000s , specially during the increasingly dictatorial UPA regime was not above government pressure. The government increasingly started adopting the carrot instead of the stick which it had wielded during the 1970s. The government started using appointments to various government bodies including the increasing number of tribunal's to create incentives to get their way. It became widely discussed as to how the government obtained or tried to obtain favourable judgements from the honourable court by appointing presiding judges to various tribunal's and government authorities after their retirement. The two reasons why the collegium system was formed came to be subverted. There has been increasing disillusionment not only amongst lawyers but also amongst the people about judiciary in this country.
The third angle to this selection process is it became more and more difficult to understand as to why certain people were promoted as judges and why certain people were excluded. This led to the perception that rules for selection of judges were being made up, as people went along. It also gave an impression that the norms of selection of judges were flexible and were being changed to suit those who had been selected in advance behind closed doors.
The entire incident in relation to Shri Gopal Subramaniam, left people wondering as to whether there was an objective criteria for the selection of judges to the highest court of the country and what were the considerations which weighed with the collegium at the time selecting judges, who apparently by their very nomination process itself would become the Chief Justice of India one-day.
Because of the controversy surrounding the selection process there is an increasing imperative need to, come up with an alternate mechanism for the purposes of selection of judges. This mechanism needs to be transparent as well as rule-based so that those who put themselves up for selection know what is the criteria on which they are being selected. A rule based transparent mechanism is also important because the public will have confidence in a person who has gone through the procedure.
A number of rule-based mechanisms have been formulated in different countries. In civil law countries like Germany a special judicial service has been formulated from which judges are appointed. In the United States of America the entire selection of judges has been made subject to a political process of confirmation whereby those nominated by the executive for judicial appointment are questioned as to all their antecedents in public hearings , and then their confirmation is put to vote. In other jurisdictions like Australia and the United Kingdom a method of judicial commission has been devised whereby eminent people form a committee to which those interested in becoming judges apply. The committee takes into account the capability of the person making the application and based on which they make a selection as to judicial appointment. The criteria of selection is apparent and transparent to all and therefore those getting selected enjoy public confidence. The United Kingdom, from which we inherited the form of judiciary which we have today, used to have the process of judges selecting themselves but there were wisespread criticism about nepotism and selectivity. There was also widespread criticism that the judiciary did not reflect the demographic character of the country. Women were not given an opportunity to serve on the bench. Members of social groups which were not on the top of the social rung were not given an opportunity to become a part of the judiciary. The above criticisms applies to the Indian judiciary today as well. It is therefore important that a fool proof selection mechanism like a judicial commission be brought into being as a mechanism for the selection of judges. This will bring in much needed transparency and representativeness in the process of selection.
-Vikramjit Banerjee(The writer is Advocate of Supreme Court)