Judiciary and govt don't want transparent system for picking judges: Bhushan

Justice Markandey Katju's revelation as to how a corrupt judge came to be appointed in the Madras high court once again highlights the serious problems with the process of appointment of judges to the higher judiciary, writes Prashant Bhushan.

Justice Markandey Katju's revelation as to how a corrupt judge came to be appointed in the Madras high court once again highlights the serious problems with the process of appointment of judges to the higher judiciary. He has pointed out from firsthand insider information that despite full knowledge about the dubious reputation of the person concerned, he still came to be appointed by the Supreme Court collegium. Reason: he was a favourite of the DMK, as he had granted bail to its chief Karunanidhi.

The chief justices involved in his appointment were acting under pressure from the UPA-I government, which was dependant on the DMK. What has not been revealed is that the original appointment of Justice Ashok Kumar was made in 2003, when DMK was a partner of the NDA. Some of the judges in the collegium that cleared his appointment themselves faced serious allegations of corruption.

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This entire episode shows how several dubious persons have come to reach top positions in the judiciary where they can appoint more such persons. It also shows that judges in the collegium often succumb to undesirable pressures from the political executive even when the power of appointment of judges is essentially vested in the judiciary. But the most important lesson from this expose, which is by no means the only such example, is the dangers of lack of transparency in judges’ appointments. Had people known that such a dubious person was proposed to be appointed, they would have raised their voices against it and the pressure of public opinion would have prevented the collegium from recommending such a dubious appointment.

The new law for judicial appointments proposed by the government seeks to add the law minister and some 'jurists' nominated by the government to be in the selection committee. 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 present problems arise on account of the lack of transparency and absence of a proper system of comparing the merits of prospective candidates on some laid down criteria.

The UK and many other countries now have full time independent judicial appointment commissions which invite applications and nominations that are comparatively evaluated on a set of laid down criteria. The entire process also has transparency, which allows common people to provide relevant information about the proposed appointees to the appointments commission.

For this exercise to be done properly one needs a fulltime body, which functions transparently. An ex-officio body of sitting judges and ministers can hardly be expected to do this job properly, especially when it functions without transparency. Unfortunately, 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, without ensuring that the system will select the most honest and competent judges.

Author is a Supreme Court advocate and convenor of Campaign for Judicial Accountability and Reforms (CJAR).
The views expressed by the author are his personal