Days after his retirement as the Chief Justice of India, R M Lodha said on Sunday that no system for appointment of judges can be “the best” and that a judge appointed by the government may feel pressure in deciding cases against them.
He also said the government was a major litigant before the Supreme Court and situations could be tricky when a judge is expected to decide a case involving people who appointed him or her.
“No method has been found to be the best for appointment of judges to the higher judiciary and constitutional courts. I feel there should not be any outside influence, political or economical, in the present situation where there is expanded power of judicial review with the highest court,” he said. “In such a situation, there could be a lurking feeling in a judge that here is a person who appointed me and the judicial independence will hence get affected. This is not good not only for the independence of judiciary but also for the foundation of the democracy…”
Justice Lodha was speaking at the annual lecture and award function organised by civil society group Capital Foundation Society. He said there were different procedure resorted to in different countries for appointment of judges but it remained a fact that no system was found to be flawless.
Justice Lodha, who demitted office as the CJI on September 27, said although collegium system for appointing judges to the higher judiciary was subjected to a lot of criticism, it must be kept in mind the situations wherein this method was evolved to keep the independence of judiciary intact.
Also speaking on the occasion, Law Commission chairperson A P Shah fired the latest salvo against former CJI P Sathasivam’s acceptance of governorship for Kerala.
“Today the government is a major litigant in the Supreme Court. Almost 60 per cent of the cases are from the Centre and state governments. Empirical data suggests that large proportion of Supreme Court judges in the recent past were appointed to such post retirement jobs, most often within one year of their retirement,” he said. “This phenomenon has a tendency to undermine the independence of the judiciary as it creates incentives for sitting judges to curry favour with the government of the day with a view to getting a post retirement job. I was disappointed when one former CJI took the governorship for a state,” Justice Shah said, calling for a two-year cooling off period.
He described the NDA government’s proposed Judicial Appointment Commission Bill as a “missed opportunity,” since it failed to address issues relating to criteria for selection of judges as well as transparency and accountability in the process of appointment.