Lawyer-activist Prashant Bhushan is right when he says “neither the judiciary nor the government wants to have a rational and transparent system for selecting judges. Each just wants a greater part of the appointments pie,” and that what is needed is a body “which functions transparently.” (Appointment of judges needs to be more transparent, HT, July 23). The big question now is how we achieve this transparency when neither the judiciary nor the executive wants it, and both are striving for primacy.
Article 124 of the Constitution lays down that “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose” and “that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Initially this system worked reasonably well but it started faltering, particularly during Indira Gandhi’s first tenure as prime minister. The biggest shock came in 1973, when Justice AN Ray was appointed Chief Justice of India, superseding Justices JM Shelat, KS Hegde and AN Grover. All three resigned in protest. Matters came to a head and the Supreme Court Advocates-on-Record Association filed a case in the Supreme Court. The nine-judge Bench headed by Justice JS Verma announced the creation of what is now known as the collegium system of appointment of judges to the superior judiciary. The system was further reaffirmed and refined in 1998.
Questions have been raised periodically about the ill effects of a system of judges appointing judges but now the revelations by Justice Markandey Katju seem to be the proverbial last nail in the coffin of the collegium system. The proposed law for judicial appointments seeks to add the law minister and some nominated jurists to be in the selection committee. Bhushan says this “will only increase the government’s clout in the selection process, thereby compromising the independence of the judiciary, without dealing with the present problems in appointments”. The counter proposal is to make this commission independent of both, the executive and the judiciary, and to make its working transparent.
India is a representative democracy. To envisage a system of appointing judges that is independent of the elected representatives of the people, howsoever indirectly, and with the judiciary having a say, appears to be impractical, almost utopian. Since the overriding need is transparency, it may be more efficacious to find ways of introducing and ensuring transparency in the working of the proposed system without tinkering with it too much.
In more mature democracies, there are set systems to ensure transparency. One well-known example of this is the open, public hearings system in the US for confirmation of judges. Once the president nominates a person proposed to be appointed, the senate judiciary committee holds hearings, questioning nominees to determine their suitability. These hearings are held in a transparent manner.
In India, all we need is that the proposed judicial appointments commission should specify not only the ‘procedure’ but also the ‘criteria’ for appointing judges, and that it should ensure that these hearings are open to the public. The big question is: Will the legislature and the judiciary rise above individual turfs in the interest of the nation? One lives on hope.
Jagdeep S Chhokar is former professor, dean and director in-charge, IIM Ahmedabad
The views expressed by the author are personal