The independence of the judiciary is the fulcrum on which the Supreme Court, in 1993, devised the collegium system for the appointment of judges of the apex court and the high courts. Independence is an essential and necessary, but not the only, attribute of an ideal judicial system.
Competence and accountability are the other two attributes. There is a considerable lack of both in our judiciary. It is said that the judiciary is accountable to the Constitution. That is sophistry. The Constitution is a book, like many important books, and the judges are its sole interpreters. Their interpretations have progressively empowered the judiciary, culminating in the appointment of judges on the sole recommendation of the collegium of Supreme Court judges.
The superior courts are powerful and can set aside laws passed by Parliament and the state assemblies, and all manner of executive decisions.
Once they decide, it is virtually the end of the matter. Having vested such powers and trust in the judiciary, we cannot ignore who is appointed a judge and how she is appointed, because that is the only time the people can have a say. We have to ensure that it remains independent not only from the executive and external forces, but also from itself, and that it is also competent. It is in this context that the manner of appointment of judges to superior courts assumes such significance.
Until 1993, the president of India used to appoint judges in consultation with the chief justice of India. So there was a two-way process of consultation between the CJI and the government. The Supreme Court changed the consultation process into a one-way affair; the president must appoint the person recommended by the CJI and his four seniormost colleagues. Let us remember this change was brought about not by amending the Constitution but by interpreting the existing provision without any public or parliamentary debate. Under this system, the president, or the government, has only to validate the proposal of the collegium. Although it can ask questions, if the collegium reiterates its recommendation, the president is bound to accept it. Thus, under this system, once the collegium decides on the names, the president’s assent is a mere formality. So, when people describe this arrangement as judges appointing judges, they are not wrong.
For each appointment of a public servant, there are elaborate recruitment rules laying down the eligibility criteria and the manner of recruitment. But in the appointment of judges, no one knows what rules are followed in deciding why one person from the bench or Bar is recommended for appointment and not another. The Supreme Court has debarred such information from being eligible for disclosure under the RTI. Transparency and equality of opportunity for all public appointments are surely not to be applied only to lesser public servants. Is not everyone equal in India?
No one has conducted a serious study to show that the judges appointed during the pre-collegium era were less independent, or that the quality of their decisions was inferior. There is no reliable evidence to show the extent of influence, if any, the executive has exercised on individual judges, then or now. There are
far more post-retirement appointment opportunities available to judges of the Supreme Court and high courts now than
Both the legislature and executive are held accountable by citizens and punished through periodic elections as well as investigative and oversight bodies. What are the yardsticks for evaluating the performance of the judiciary, or punishing the judges of superior courts for wrongdoing or incompetence? We berate governments for not improving governance and the economy enough, but what about the judiciary?
Except for bemoaning the mounting pendency of cases in law courts, citizens can do little to nudge the judiciary to carry out substantive and systemic reforms in the judicial process.
How often has society critiqued the falling standards of decision-making? Society has been far too indulgent of the judiciary for it is its last refuge, the executive and legislatures having disappointed it often. It cannot be anybody’s case that the judiciary alone can think right and wish well for the country, and the executive and legislature are incapable of taking the right decisions. What the National Judicial Appointments Commission (NJAC) hopes to achieve in baby steps is an element of public participation in deciding who our superior judges should be. The collegium system is too opaque for comfort. In any case, the NJAC is only a collegium-plus and not an executive-plus body.
Hopefully, it will bring some degree of clarity and transparency to the otherwise opaque and one-sided system currently in place.
The writer is former secretary, DoPT and a former CIC