If the Justice Katju controversy has done nothing else, it has brought to the forefront an issue which should be a major national concern, namely who are the men and women who will become judges of the Supreme Court and High Court of the country. We live in times when the judiciary has firmly established itself as an important institution of governance. Its role assumes great importance in the current political situation where a single party has a brute majority in Parliament with no effective opposition. Such self-confident governments have a tendency to push through laws, which are not necessarily people friendly or constitutional.
The Land Acquisition Act is being amended to do away with consultation with the affected community. The Food Security Act has been deferred for implementation. The Telecom Act has been amended to permit secretary, telecom to be secretary to the Prime Minister giving the go-by to the principle that such important functionaries should not seek post retirement benefits.
All this is pushed through by sheer numerical strength in Parliament. In such a situation, the judiciary is required to be eternally vigilant and committed to constitutional goals, when these issues land on their table, which they will. The least one is entitled to expect from the judiciary, is that it is composed of the diverse strands of the many communities in the country, be they political, social, or based on sexual orientation, caste, sex or class. A look at the judiciary as it stands today can lead to the conclusion that the sons and relatives of the judges are becoming judges, usually from one caste or community and from the upper class elite. There was a time in the Supreme Court when not less than three judges were related to each other by ties of marriage or blood. The genetic pool from which judges are drawn is dwindling. Women are conspicuous by their absence in the judiciary.
Surely this is cause for concern and calls into focus the manner and method of appointing judges. The process today is in the hands of judges alone and there is a perception, rightly or wrongly, that they appoint friends and relatives. Although there is consultation with the executive, the decision of the judiciary is final. In any event, there is often consensus between them, leaving no space for civil society to play a role in the process.
When it comes to the appointment of the High Court judges, there is a quota in operation, 60 per cent of the judges are drawn from the service judiciary and 40 per cent by direct recruitment from the Bar. The selection is made by a collegium of seniormost judges of the High Court and Supreme Court. Over the years there has been a comfortable relationship between the executive and the judiciary and almost all decisions are taken by consensus. When there is a collapse of will, it happens simultaneously within the judiciary and the executive, leaving no opposition being voiced to undesirable appointments. For the last 25 years, we have never had any major controversies between the executive and the judiciary. Ex post facto controversies such as the one raised by Justice Katju are of little significance as the damage is already done.
It is for this reason that a Bill has been introduced in Parliament to amend the Constitution for the appointment of a Judicial Appointment Commission to appoint judges of the High Courts and the Supreme Court. The Commission is to consist of three seniormost judges of the Supreme Court, the Prime Minister, the leader of the Opposition (at least in the current context there may be none) and two “eminent persons”. There is no definition of who is an “eminent person”. In all probability they will be members of the legal profession and normally a former attorney general or other law officers or senior successful lawyers would be considered an “eminent person”. The composition remains an in-house one, with the dominant role for the judiciary. Little or nothing will change.
The real problem is the extreme secrecy surrounding the appointment of judges. It is this secrecy that has to be broken by loud voices of the community.
One must begin by reforming the legal profession as that is the pool from which a large number of judges are drawn. Unethical practices, sharp practices, sons of judges making a fast buck — these are some of the issues that must be addressed.
The opportunity to become a judge of the High Court must be thrown open for every eligible lawyer. Vacancies must be advertised and applicants invited, then scrutinised for their credibility and competence by a Secretariat to the Commission. Thereafter, the candidate must be interviewed by the Commission, and only after this the appointment can be made. We need a system, which is completely transparent and allows civil society to comment on the proposed appointee. The voices of the affected community must be heard. Today, we are all potential litigants before the court. Judges sit in judgement in Public Interest Litigations on issues that affect the core of who we are, hence we cannot be excluded from the process of appointment of judges.
Better judges at the High Courts will mean they will be moving up to the Supreme Court having accumulated the necessary experience. Once again, this upward mobility cannot be dependent on the accident of age or seniority alone, the proposed appointment must have something of national importance to offer, be competent at interpreting the Constitution, cognisant of the need to protect and preserve human rights and celebrate the diversity of our national composition. Most importantly, they must have a demonstrable commitment to secularism, be aware of the need to protect minorities, for that is what the Supreme Court is expected to do.
We live in times when the objection of a brother judge to a nominee on the ground of lack of integrity is ignored by the brotherhood of five. This is an extremely unsatisfactory state of affairs. The issues go to the heart of the democracy that we claim exists in India. There is an obvious case for the law to put in place a judicial commission. However, in recent times even those who have supported the idea of a judicial commission worry that the judiciary will, through the commission, be packed by judges who are politically close to the ruling party, and hence have pulled back on their support for the idea.
Given the brute majority that the BJP has in Parliament, the fear is that the “eminent person” will be of the same persuasion as the political party. There must be caution in composition of the commission and it must not be packed with men of their choice.
Ultimately, let us not forget that the ultimate arbiter of any new commission will also be the Supreme Court of India. Any attempt to tamper with the independence of the judiciary will be struck down by the Supreme Court on the ground that it violates the basic structure of the Constitution of India. We have after all placed our trust in the judiciary to decide the basic structure of the Constitution and rightly so, hence the executive needs to shed its arrogance, which comes with numbers. This is not a numbers game after all. We need to save the judiciary not only from itself but also from the executive.
The writer is a former additional solicitor general, senior lawyer and activist.
