The impeachment process against Calcutta High Court judge Soumitra Sen is significant not only because there is a possibility of history being created (if and when the Lok Sabha votes the way the Upper House has), but also because it has strengthened the argument that we need a national judicial commission for the appointing of judges.
At present, we have a system where judges appoint judges, a kind of old boys’ club.
The closed nature of the group makes it difficult to weed out the corrupt and because the impeachment process is stringent and lengthy, many don’t think twice before behaving irresponsibly.
The appointments are a closed-door process with judges backing their own candidates; favouritism, nepotism, religion, caste and community — all play a vital role in such appointments.
Naturally, such indulgence will also be shown when it comes to taking action against the corrupt. According to a news report, 305 judges are under scrutiny by the Supr-eme Court; 38 have been made to pay penalties; 17 have been discharged and 75 prematurely retired. Along with Justice Sen, there are two more senior judges in the dock: PD Dinakaran and Nirmal Yadav.
Not to forget that Justice Sen himself in his spirited defence in the Rajya Sabha had pointed a finger at former Chief Justice of India KG Balakrishnan. Sometimes, politics also subverts the impeachment process like we saw in the case of V Ramaswami in 1991.
During the impeachment debate in the Upper House, one of the best seen in recent years, the BJP’s Arun Jaitley rightly argued that the present system of appointing judges, the collegium, “is also a system of sharing spoils”.
He added that whether the collegium continues or we have a commission, it must be statutorily regulated, so that arbitrariness can be avoided. While the independence of the judiciary is a sign of a working democracy, there are plenty of recent incidents that show that there are many black sheep in the judicial system.
That the senior most legal eagles of the country are not oblivious to the situation is evident from what Justice SH Kapadia has said on many occasions: “For a judge, ethics, not only constitutional morality, but ethical morality, should be the base.”
While there is a case for a commission, there is also a need for not delaying the passage of the Judicial Standards and Accountability Bill, 2010, which is pending in the Lok Sabha. If the Bill comes through, then, among other things, some of the routes of possible corruption and nepotism would be closed.
There is also a line of thought that thanks to judicial activism (or overreach, depending on which side of the fence you are on) the executive is trying to curb the judiciary’s powers.
For a democracy, the separation of powers is vital. But what is also vital is that the judiciary is in perfect shape and only the best and the cleanest are appointed because it is often the only, if not the last, resort for the people.
For this, if there is a need for introspection and a change in how business is done today, so be it.