Some judgement, please

Judicial appointments row, stoked by Katju revelations, is not about reform.

Written by Pratap Bhanu Mehta | Published:July 24, 2014 12:05 am
The ease with which IB reports are used as an argument for or against candidates should give sleepless nights to citizens who care about democracy. The ease with which IB reports are used as an argument for or against candidates should give sleepless nights to citizens who care about democracy.

Justice Markandey Katju’s mendacious allegations against his former colleagues, rather than provoking a sensible debate, has brought out just how dangerous the framework within which we think of judicial accountability is. It is pointless to speculate on Katju’s motives. But only the most obtuse observer will fail to recognise the political implications of what he has said. Politicians are salivating at the prospect of the judiciary committing hara kiri on its own legitimacy, thus creating grounds for greater control. After two decades, a legislative majority makes it possible that at the end of this road of delegitimisation will come, not greater accountability, but more political control. Katju has obliged at the moment when these tussles are getting particularly acute.

The judiciary’s damage is self-inflicted. This column has consistently argued that there is a serious crisis in the judiciary. Of late, the Supreme Court, in particular, has not distinguished itself. It has abdicated moral stewardship of the Constitution. The intellectual quality of judgments is widely perceived to be mediocre. Several judges have come under the ambit of all kinds of unseemly allegations. Cumulatively, this has led to two conclusions. First, the judicial usurpation that gave it almost exclusive powers over higher judicial appointments needs to be revisited; the executive’s more explicit role needs to be restored. Second, some mechanism needs to be devised to hold judges accountable. Hence the call for a national judicial appointments commission.

The exact design of this commission will be a matter for another occasion. But two dangerous tendencies in our current clamour for accountability need urgent attention. The first is the dangerous elevation of the Intelligence Bureau to the role of ultimate arbiter of character and competence. I cannot speak to particular cases. But the ease with which IB reports are used as an argument for or against candidates should give sleepless nights to those citizens who care about democracy. This is so for several reasons. It is ironic that in the discourse of accountability, we often invoke the single most unaccountable institution in Indian democracy: the Intelligence Bureau. This shadowy institution, whose own functioning is beyond all accountability, whose own norms are unclear and whose competence is doubtful, is now paraded as the final word on the suitability of candidates.

So let us put it gracelessly. Inputs from the IB can be important. But if they are accepted uncritically, if no one has the courage to ever overrule them, Indian democracy will be in great danger. How many times in the past have you heard that potentially worthy judges were scuttled by the IB? Katju may feel entitled to ask his brother judges why they went against what he claims were their own judgements. But it is utterly naive to think that an IB report cannot itself be politicised through omission and commission. The IB can easily create a fog of suspicion where none exists and scuttle good candidates; it can also choose to underemphasise what is already known. Since there is apparently deep IB scrutiny of candidates, what explains the fact that apparently so many bad apples made it through?

This point is important because, regardless of the structure of appointments, we rely on the IB and immobilise natural justice. In governments where the IB seems to leak more than ministers are allowed to speak, the possibility of IB subversion of candidates is great. Only in India can the demand for accountability involve a greater role for the even more unaccountable institution.

The second issue that needs some sanity is transparency. Transparency is an attractive idea, but its contours need to be clearly defined. A bit of historical context is in order. One of the reasons we got a more mediocre judiciary, or in some aspects, civil service, is that we had this illusion that no one needs to exercise complicated judgement. The only way to appear to be fair and transparent is to come up with objective criteria. Seniority became the default criteria, albeit occasionally manipulated. One danger with certain demands for transparency is that it cannot happen without a counterproductive reductionism. The use of transparently accessible numerical criteria in academic selections is a good example of perverse incentives.

There is a clamour for selection committees to explain their appointments publicly. This is nonsense. There are good reasons not to malign reputations or cast doubt on the competence of rejected candidates. If they are serving judges, it might undermine their authority. It is possible to select one without suggesting others were unworthy; but public articulations make this difficult. Do you really want unelected judges or senior counsel to go with a sign on their head: “unworthy of the Supreme Court”? All institutions run on something called presumptive worthiness. Undermining this has long-term consequences for the institution.

Selection is a matter of judgement. It is not just a matter of objective qualifications but involves subtle points of judgement like institutional fit, temperament and so forth. These are all relevant. But the more selection committees have to explain themselves, the less likely it is that the relevant criteria will be taken into account, because these criteria are context specific. In India, there is also the misconception that the US process is transparent. It is transparent in the sense that their political system transparently accepts the political nature of judicial appointments. Public hearings are not about selecting the best candidate. Few would accuse the Supreme Court of the United States of achieving that distinction. I doubt we are ready to accept a politicised judiciary in that sense.

Notice another irony in l’affaire Katju. We want to have it both ways. On one hand, we say the judiciary should not have an exclusive say. Then, based on select leaks, we go after a former prime minister who merely asked a question he was within his rights to ask. Under our current system, what is wrong in the prime minister asking questions about a particular appointment? How can this government, which used IB leaks to buttress its stand in the Gopal Subramanium case, object to Manmohan Singh merely asking a question? This controversy is not about reform, it is has a political odour to it.

The Supreme Court seems to have recognised the rot. It has made a good start by making direct appointments to the bench. A critical mass of these appointments could transform its calibre and culture for the better, bringing in both competence and an outside perspective. The judiciary needs to repair its own deep disfigurement. But the wider politics of the judiciary is taking a dangerous turn. Indian democracy will rue the day it compromises on judicial independence in the name of accountability.

The writer is president, Centre for Policy Research, and contributing editor for ‘The Indian Express’

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  1. A
    Jul 25, 2014 at 12:33 pm
    in the present system of appointment of judges besides various recommendations a report from IB is sought to know about the person who is to be elevated. Mr. Bhanu Mehta himself tells that he does not know of any specific case where IB has given wrong reports or information. It is the duty of IB to give an unbiased report to the government on the issue it has been asked. it is for the government to take a decision over it. if you really want to question IBs report than please get it verified and then raise finger. Other wise He also becomes another person who just want to question integrity and honesty of each organisation.
    1. A
      Alok Kumar
      Jul 24, 2014 at 4:49 pm
      Pratap Bhanu Mehta is a perceptive man. I usually find myself in agreement with him, but unfortunately I could not persuade myself to defer to his arguments forwarded in the article " Some Judgement, Please". Basically his proposition is that Judicial Independence is paramount and anything which compromises this - be it IB reports regarding alleged corrupt practices of Hon'ble Judges, bringing more transparency and insistence upon objectivity in appointment process- should be given a go by.Firstly, while conceding the lack of insutional accountability in IB and the possibility of it being manited by politicians, it is important to reiterate that the said IB report was in addition to the adverse report presented against the said judge by the Chief Justice of the concerned High Court, supported by the members of the Collegium of the Supreme Court of India. If this is not material enough, pray what would consute sufficient material? What kind of alternative investigation can be carried out against a Judge of the High Court or that of a Supreme Court? By what agency that can be credible enough in the eyes of Mr Mehta?Secondly, granting that no selection committee consuted to recruit for senior positions can be expected to be totally objective in spelling out the exact reasons for selecting some one and rejecting the claim of others, then the adverse perception about the said judge by the Chief Justice of his High court and Members of the Collegium of the Supreme Court should be reason enough for rejecting the candidature.Thirdly , admittedly the Prime Minister has a right to an explanation from the Supreme Court as to why the candidature of particular judge has been found wanting by the SC Collegium, but surely that right does not extend to prodding and cajoling the Chief Justice of the SC( no less) to recommend appointment of a judge with adverse material against him simply to satisfy the whims of a coalition partner so as to save his Government.Would Mr Mehta have Judicial Independence hostage to the whims and fancies of one person - the Chief Justice of the Supreme Court of India? The extreme non- transparency of the present system of appointment of Judges through a collegium system has been found to be inadequate even by the legal fraternity. Judicial Independence cannot be a license to Judicial tyranny. India deserves better than that.
      1. A
        Anil Maheshwari
        Jul 24, 2014 at 9:17 am
        I am amazed to note that the learned law teacher is not aware that the IB report is not a new phenomenon. Since the establishment of the IB, the practice of seeking IB report before any appointment to the Higher Judiciary is a norm and practice.
        1. G
          Jul 24, 2014 at 12:32 pm
          a half-truth lies somewhere between the lie and the truth, mr. mehta.there's no such thing as selective accountability or discerning transparency.
          1. G
            Jul 24, 2014 at 3:43 am
            Hon Justice (retired) Katju has raised an issue of public importance in which the appointment of a judge was made under the pressure from the government which the author of the article does not appreciate. Instead of taking a view on the moral ground of the appointment he justifies PM asking to accelerate the appointment. At the same time, he criticizes the government of the day in refusing the appointment of Mr Subramaniam on the basis of the IB leak.The appointment in the higher judiciary must be based on the unquestioned honesty of the person. If there is an iota of doubt, it must be cleared immediately and the person appointed must be beyond suion. The author is unaware of the situation in the lower courts in which the public only get the next dates and. no judgement for years just to oblige the lawyers. The question is why a magistrate or a judicial officer only works in the morning hours and not for the w eight hours . If there is granting of bails legal or illegal, they work from the house also but they do not hear the cases of the common people. It is desired that the judiciary must be strengthened to have faith of the people and people of the higher judiciary must be of unquestioned integrity. The nation is proud of its committed people of integrity in all spheres of the professions must be encouraged.
            1. M
              Jul 24, 2014 at 10:30 am
              Instead of beating around the bush on IB and its sancy, important point is that whether the judge in the question was tainted or not, IB report was true or not and political power was misused or not. If the doubt is on the sancude and politicization of IB is concerned than which government insutions is remained free from politicization and hence kept its righteousness in tact! So author's indirect attempt to absolve the previous government will not cut much ice. it is one more futile intellectual exercise.
              1. S
                Jul 24, 2014 at 4:37 am
                How can author say Kaju's allegations are mendacious when there records in PMO as well as notings by Supreme Court Chief justice Lahoti and corroboration by another judge. It was common knowledge that this judge was corrupt. IB findings simply validated it. Collegium had taken a comprehensive view and only then decided against recommending this judge. It is important to decide if we want to stay with current system or move to a new system. No system will be fool-proof that does not mean we should not even make an attempt to reform.
                1. A
                  Jul 24, 2014 at 5:18 am
                  The author makes very valid points. Transparency often boils down to nothing more than reductionism and creates incentives for gaming the system by ensuring that quanative criteria are met. However, there are two point on which he has chosen not to pontificate. One, is it not true that DMK was using its clout in the former government to pursue the case of a person who was otherwise not eligible. Is is desirable for a political party to openly bat for a particular candidate in the matter of appointment to higher judiciary? Second, it is not a fact that in the Indian context, because of our innate inability to understand complexity, a transparent system may be less controversial than the present arrangement. The UPSC has never been accused of unfairness in selection of IAS officers. Similarly, recruitment to NDA and IMA remain above controversy. Given the low intelligence of the Indian poce, it is perhaps the transparent, quanative criteria based systems of selection that suit us better.
                  1. P
                    Jul 24, 2014 at 3:53 am
                    Politics and bitter bureaucracy in the judicial system of the country, god only knows what's going on in the other departments where there is no official code for honesty!!
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