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The jury’s still out on this

To make the judiciary accountable, there must be a transparent system of appointing judges. Satya Prakash writes.

india Updated: Apr 08, 2012 21:10 IST
Satya Prakash

In his book Working A Democratic Constitution — The Indian Experience, noted jurist Granville Austin wrote: “An independent judiciary begins with who appoints what calibre of judges.” But the Judicial Standards and Accountability Bill, 2010, which was passed by the Lok Sabha last month in just 15 minutes, has missed this point completely.

Without changing the present reference procedure for the removal of corrupt judges, the Bill seeks to empower the common man to lodge complaints against corrupt judges and proposes to set up a mechanism to deal with such complaints. It also seeks to make unwarranted comments by judges against other constitutional functionaries a judicial misconduct.

So what is more important — removal of corrupt judges or the appointment of honest ones? The basic problem relates to the appointment of judges and not their removal. If only honest and deserving people make it to the higher judiciary, the occasion for their removal would never arise. Unfortunately, there is no transparency in the present appointment system.

Under Article 124(2) and Article 217(1) of the Constitution, a judge of the Supreme Court (SC) and that of a high court respectively have to be appointed by the President after ‘consultation’ with the Chief Justice of India (CJI).

However, via a judgement in 1993, the SC effectively took over the executive’s power to appoint judges to the higher judiciary and started what has come to be known as the ‘collegium system’. A nine-judge Constitution Bench in 1998 further ruled that primacy has to be given to the collegium’s view over that of the President.

The collegium system, once described by former law minister HR Bhardwaj as an “extra-constitutional” body, has tilted the balance of power between the judiciary and the executive envisaged under the Constitution in favour of the former in appointment of judges.

This makes India the only country in the world where judges appoint judges through a procedure wrapped in complete secrecy.

During Indira Gandhi’s rule, there was political stability in the country and the Congress enjoyed a majority in Parliament. The judiciary used to view the political establishment with awe — and also suspicion — mainly because of the supersession of judges. Days after the historic Keshvanand Bharti case verdict in April 1973, in which SC propounded the theory of basic structure, four senior SC judges were superseded and Justice AN Ray was appointed the CJI.

As a result, four senior-most judges resigned. Later, Justice HR Khanna too was superseded. During the Emergency, several judges became victims of punitive transfers as they were transferred without the consent of the CJI.

Since the 1989 general elections, no individual political party has got a majority in the Lok Sabha. With political instability and coalitions being the norm of the day, the fear of the power of the political establishment in the mind of the judiciary seems to have vanished. It is not a coincidence that during the phase of political instability, the country witnessed ‘judicial activism’ and the judiciary steadily asserted its powers in various spheres, including judicial appointments. It’s a different story that it has not been able to fill judicial vacancies and clear pending cases.

Sadly, the Bill attempts to treat the symptoms and not the disease. It offers only half-hearted solutions, perhaps because of the fear of an assertive judiciary, which has been aggressively questioning the political establishment over various scams.

If a fair system for judges’ selection has to be put in place and the balance of power between the judiciary and the executive envisaged under the Constitution in matters of appointments of judges is to be restored, it would require a constitutional amendment. We need a political consensus on setting up a broad-based National Judicial Commission with powers to appoint, transfer and remove SC and HC judges on the lines of similar bodies in other democracies, including Britain. Such a commission must not be an all-judge body.

After the Lok Sabha passed the Bill, hanging fire for several years in various forms, it is now to be debated in the Rajya Sabha, where the ruling alliance does not have a majority. Let’s hope veteran parliamentarians and legal luminaries in the Upper House will discuss it threadbare and suggest the much needed measures for course correction in the Indian judiciary.