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Journalism of Courage
In over 200 years of its history, the US Supreme Court has had 15 chief justices, with tenures ranging from four to 34 years! In the 50-odd years of its existence, the Supreme Court in India has already had 33 CJs. The latest occupant will have an effective tenure of a week considering that the courts go into summer recess in a few days’ time. The extant procedure of picking the senior-most person for the job is responsible for this unfortunate state of affairs. Between the purely “objective” criterion of seniority, determined by the date of appointment, and the subjective criterion of “suitability”, determined by a complex set of qualifications, from intellectual excellence to personal integrity, there has to be an intermediate methodology that gives both the subjective and objective factors due consideration without allowing personal prejudice and favouritism any role to play.
This is a tough call. It is the misuse of the system of judicial appointments by the regimes of the past, best exemplified by the manner in which Indira Gandhi tampered with the Supreme Court, that has over the years created a situation in which no other criterion apart from seniority is allowed to play a role in determining who will be appointed CJ. This is not to raise any questions about the suitability of the present CJ, Justice Rajendra Babu. Far from it. In fact, given the timing of Justice V.N. Khare’s retirement, bang in the middle of an election, it is best that the government went by the book and stuck to seniority. However, the next government must take a long term view and ask whether or not such a limited tenure for the high position of the CJ of SC is in the interests of the institution.
Perhaps a combination of merit and seniority should be used in enabling a Judicial Commission, comprising the president, vice-president, prime minister, incumbent chief justice and Lok Sabha speaker, to nominate the CJ. Further, such an appointee should be given a fixed tenure of five years, in keeping with those of other constitutional functionaries like the chief election commissioner, the comptroller and auditor general, and so on. Just as the president and prime minister have five year tenures and the cabinet secretary can now get a two-year tenure, the CJ should also get a fixed tenure. This will also enable the CJ to play a larger institutional role and guide the functioning of the judiciary. Former CJ, Justice V.N. Khare observed in an interview to this newspaper, that the CJ should be given the power of superintendence over high courts to enable him to ensure integrity and discipline within the judiciary. Recent instances of wrongdoing has highlighted the need for some sort of judicial empowerment of the CJ to enable him to reform the judiciary from within. CJs can play such a role only if they have the time to settle down to work and not have to start packing bags before they are unpacked!
