Tuesday, Oct 21, 2014

Court must cast a wider net

The Constitution favours a wider consultative process in the appointment of judges. Wisdom is not the monopoly of a few in the apex court. The Constitution favours a wider consultative process in the appointment of judges. Wisdom is not the monopoly of a few in the apex court.
Written by Faizan Mustafa | Posted: August 4, 2014 12:25 am | Updated: August 4, 2014 9:03 am

Justice Shah’s proposal ensures judges’ ‘external’ independence from government, but not their ‘internal’ autonomy.

The independence and impartiality of the judiciary are not private rights of judges; they are the rights of citizens. Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves, and in their decisions. Independence of the judiciary is the most cherished goal of any legal system, and the process of appointment of judges is rightly seen as a crucial mechanism to achieve this goal. Even in mature democracies, there are widespread public concerns that judges have been appointed through cronyism and secret soundings. We are not an exception.

We had the primacy of the executive in the appointment of judges in the first four decades of our republic. Though most of the judges picked under this system were independent, upright and fearless, at times, the government did succeed in appointing some judges of its choice. It is an open secret that several pliant and submissive judges also made it to the highest court. Justice V.D. Tulzapurkar, an eminent former judge of the Supreme Court (SC), had observed that “sycophantic chief justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another. Thus, the two-year term proposal for the chief justice of India (CJI) by Justice A.P. Shah does not look attractive.

Thanks to the “Second Judges Case”, the days of the government’s upper hand in the appointment of judges are over. But it is painful to see that, even today, supersession is the rule rather than an exception. The only difference is that it is no more the government but the CJI and four seniormost judges who cherry-pick judges. Their decisions at times are as unpredictable as the English weather. A large number of judges were superseded during the last two decades. Several seniormost chief justices of various high courts, including Justice Shah himself, were not elevated. Some of the finest judges were brought in late to ensure they did not become CJI. No one noticed, but the collegium system has also damaged the federal character of our judiciary. As a matter of fact, true federalism as per the Constitution was provided only in the judicial system. Our high courts are in no way subordinate to the SC. Since appointments to the apex court are now in the hands of the five seniormost judges of the apex court, the incentive for dissent in the high court has been lost. Due to the near absence of transparency, accountability too has been a casualty in some of their decisions. In no English continued…

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