Time for judicial transparency

Article 124 of the Constitution simply requires that there has to be a Chief Justice of India that the President appoints him by a warrant and that he does so after 8220;consultation with such of the judges of the Supreme Court and the high courts in the States as the President may deem necessary for the purpose.8221; It has been a matter of practice that the Chief Justice of India recommends his next senior most judge as the successor, the Union Cabinet accepts it and forwards it to the Prime Minister who in turn sends the binding advice to the President with scope for one round of reconsideration to be asked for by the President.

There is so far no full-fledged judicial interpretation that binds this process. And there is nothing in law so far about the public being kept informed about the whole process. Even today the public does not know as to what the outgoing Chief Justice of India recommended during the supersessions to which the Supreme Court has been subjected to by the political regimes. For several years, the first judge8217;s case, S. P. Gupta vs Union of India, held the field for judicial appointments to the high court and the Supreme Court.

That case laid down clearly that the Union of India is bound by the recommendation of the Chief Justice of India in such appointments unless it gives cogent reasons for not following the recommendation. Lawyers or their bar associations which galvanise into action on these issues do not know till today as to whether any Chief Justice of India demanded the 8220;cogent reasons8221; from the respective Prime Ministers in power in cases where the ruling government of that time did not abide by his recommendation.

Today the national legal business market is carved up between the Bombay-Gujarat, Bengal, Bihar, Andhra Pradesh, Tamil Nadu, Karnataka and Kerala factions. Leaders of the bar and judges for the high courts emerge from these factions. The high courts are the nursery for appointments to the Supreme Court.

There is public information blackout on the entire process of evaluation whether a proposed candidate for judgeship has risen above the factions of his origin. From the 14th to the 80th Law Commission report the constant cry is of 8220;ulterior considerations8221; that have prevailed in the matter of appointments.

Meanwhile, the legal business has moved faster by establishing international associations and making various sitting judges as their office holders. The transfer of judges, which because of the Constitution has always been entirely under judicial administration, was meant to counter the existing reality of legal business. Unfortunately the judiciary kept the whole process a secret.

The same problem of secrecy afflicts all proposals for a National Judicial Commission in which judges will sit with ruling and opposition politicians. The present process of judicial secrecy simply gets transferred to a statutory body called the Commission. Judicial secrecy sits ill with the repeated assertions in judgments and speeches of Supreme Court judges that the judiciary represents the people of India.

This is said to rebut the ruling politicians8217; argument before the Supreme Court that judges are not accountable because they are not elected. But then even the best of the distinguished persons belonging to other professions are kept out of the process of determining the kind of judges the country should have.

The high courts and the Supreme Court as judicial institutions funded by the public should have the least to hide as compared to our political institutions. These courts do not normally face the issues of national security or grave law and order in the matter of appointments and judicial administration. An on-going regime if public accountability in such matters preserves and protects the judiciary from the internal dangers that the Chief Justice J. S. Verma has been constantly speaking about and the external dangers of attack or support from other sources.

Will 1998 usher in this democratic impulse?