Judges head commission of inquiry. Judges do legal aid. Judges have taken hold of legal education. Judges act as arbitrators. Judges sit on all kinds of selection committees for various posts of the Union. From telecommunications to environment and river waters to reform bodies, judges are asked to say what is right and what is wrong. The judicial employment market for work outside a court is a flourishing one. The issue is: what does this do to judicial independence?Ruling politicians as players of power are constantly in trouble. It is either a communal riot, the assassination of a prime minister, a scam or a tragedy that flares into public unrest or concern. The political answer over the years seems to be an inquiry headed by a sitting or a retired judge. This solution has a statutory cover in the form of a Commission of Inquiry Act duly enacted by Parliament.How come ruling politicians choose a particular judge, especially a sitting one, to head the inquiry commission? One cannot expect a politicalplayer to knowingly appoint a judge who would damn him and his government. Are judges being used to save the politician? It is obvious that the Union home and law ministries carefully study the judges on behalf of the politicians in power. They then make their choice to immediately neutralise a situation. But should the judicial image be allowed to be so used?At the time of making the statute casting the judge in a role having nothing to do with his constitutional role of deciding cases in a court of law, the ruling politician does not bother to consult the judiciary as an institution. The politician uses his power of making law either through Parliament or by an executive instruction to hand out a role for judges. He decides which one of them would be suitable. That sets off a most unhealthy competition between sitting judges on the one hand and retired judges on the other. This happened in the apex court at the time of the selection of a Supreme Court judge for the Indira Gandhi assassination inquirycommission. The Supreme Court then said that henceforth none of its judges would be available for governmental inquiries. But the Rajiv Gandhi assassination turned the statement hollow. The Justice Verma Commission came up and then the political play started with an almost parallel Justice Jain Commission.The politician decides what would be the extent and nature of the work to be done by the judge he has selected. He decides what will be the facilities granted or denied and above all he decides how long the judge is to be allowed to continue. The tragedy is that the ruling politician has his say because of the fierce judicial competition for such jobs.Evolving from the commissions, the ruling politicians have been quick to see the advantage of extending their power to use even the office of the Chief Justice of India in ways that suited them by giving them roles statutorily. In the Terrorists and Disruptive Activities Act, the Chief Justice alone was to hear a plea for transfer of terrorist cases. Inthe new Arbitration Act the Chief Justice chooses the arbitrator in the event of parties' disagreement. Gradually the distinction between sitting and retired judges has almost disappeared with sitting judges taking over inquiries into plane and train crashes, land and housing scams.Come retirement and judges start looking for authorities, tribunals, councils and commissions where they can do desh ki seva. There is competition for this and so there is great need for secrecy. Hence no one knows when the ruling politician and the judge started talking about the appointment after the retirement. The secrecy does credit to the politician. But does the judicial institution grow by being seen as part of such credit when today governorships, ambassadorships and party tickets to be MPs are all considered fair game for retiring or retired judges?The ruling politician of course picks up a judge in the name of "public interest" to discharge a statutory duty or an executive instruction. But the public knowsnothing about the background, the ability, the integrity of the chosen one in relation to the task defined for him by the politician. Those not chosen become the broken hearts of the judiciary. It's all a question of desh ki seva vs lok seva. But then, is a ruling politician sitting in final judgment over the judge-commissioner's report compatible with the office of a judge?The judicial cross of desh ki seva vs lok or jan seva is today borne by legal aid, legal education, legal research, legal information and even the training of judges which have been taken over by apex court judges. This puts the judiciary firmly within the system of the ruling politician's patronage. The ruling politician has the least interest in finding out about the judicial quality of a judge before granting him a public post or public funds. Judges selected by patronage then apply the same principle. The result is that lawyers without any field experience outside courts get on to the gravy-trainvia these posts. If a judge is to be known and recognised by the degree to which he has travelled up the political patronage ladder, then why not the lawyers? Between desh and jan stands the patronage wall.
