Picking their own men

Judges know best who can be trusted to join their ranks. The judiciary, therefore, assumed “primacy” in the appointment process in 1993. If an outsider is allowed to have a say in the selection of judges, it is bound to compromise judicial independence. Such are the rather self-serving assumptions on which the judiciary has been resisting all attempts to reform the appointment system in which a “collegium” of five senior-most judges of the Supreme Court, including the Chief Justice of India, make recommendations that are binding on the government.

But in the last year or so, this self-perpetuating oligarchy has unraveled like never before. This is due mainly to the scandals triggered by a couple of collegium decisions. Justice A P Shah, despite his internationally acclaimed judgment decriminalising homosexuality, was found unfit to be elevated to the Supreme Court. The then CJI, K G Balakrishnan, at the same time, spared no effort to promote Justice P D Dinakaran, despite allegations of corruption, land grab, and abuse of office.

Given its secretive style of functioning, there has been no word of explanation from the collegium on why Justice S H Kapadia, who has since become CJI, opposed the candidature of Justice Shah, who has since retired. Or why it was only after the Rajya Sabha initiated impeachment proceedings against him that the collegium abandoned its efforts to promote Justice Dinakaran to the Supreme Court and instead transfered him from Karnataka to Sikkim. The credibility of the Supreme Court suffered another blow in the course of the impeachment proceedings against Dinakaran. One of its judges, V S Sirpurkar, withdrew under a cloud in September as the chairman of the statutory probe related to the impeachment motion.

The withdrawal followed allegations of bias against Justice Sirpurkar on the ground that he and Justice Dinakaran had developed a close friendship during the seven years they had worked together at the Madras high court. The last straw was the disclosure that even after both had left Chennai, Justice Dinakaran reportedly attended the wedding of Justice Sirpurkar’s daughter in Nagpur, while Justice Sirpurkar reciprocated by attending Justice Dinakaran’s daughter’s wedding in Bangalore.

If judges are facing such a trust deficit, the lack of transparency in the appointment system is surely a contributory factor. Yet, law minister Veerappa Moily never followed up on his one-year-old “vision statement”, which proposed that the executive and legislature should be involved in selecting judges. His much-touted but yet-to-be-introduced Judicial Standards and Accountability Bill is meant to deal with allegations against those already in the judiciary.

Much as it is important to strengthen accountability safeguards, Moily seems to have adopted a symptomatic line of treatment as his Bill does not address the actual ailment, namely, deficiencies in the method of recruitment. He is persisting in his folly of limiting himself to accountability even after he suffered the mortification of withdrawing his earlier Bill, which sought to exempt the courts from disclosing assets of judges under the Right To Information Act.

It is time the government mustered the courage to undo the 1993 Supreme Court judgment through which the judiciary appropriated the authority to decide judicial appointments. There is no reason to believe that the collegium misused this authority only in the cases of Shah and Dinakaran. Shah was as much a casualty as Dinakaran was a beneficiary of the give-and-take negotiations that have become endemic in the collegium.

It is clear that the collegium system is flawed as it contains no checks and balances to ensure that the judges entrusted with the responsibility of choosing successors always act in public interest. This is not to suggest, however, that India revert to the pre-1993 situation when the likes of H R Bharadwaj misused the constitutional power conferred on the executive to appoint judges in “consultation” with the judiciary.

In its game-changing 1993 verdict, the Supreme Court swung to the other extreme by interpreting “consultation” as concurrence. As a corollary, the judiciary usurped the prerogative to select candidates. Things are unlikely to be any better if the prerogative is restored to the executive. What is needed is a system that is transparent and inclusive, so that all stakeholders are allowed to have a say on who should man the crucial institution that renders justice.

Such radical reform would require a constitutional amendment, which may be a tough task for a coalition government, but it is a worthwhile cause for mobilising an all-party consensus. Lawyers and judges profiteering from the existing opacity are bound to question the wisdom of opening up the appointment system. They would, however, be hardpressed to justify India’s dubious distinction of being probably the only country in which judges choose their own successors.

When our founding fathers empowered the executive to select judges, they were following the example of the UK, the mother country in matters constitutional. The UK too has taken away judge-selection power from the executive. But it did not hand it over to the judiciary. For the past five years, new judges have been selected by an autonomous body.

Only a third of the 15 members of the UK’s Judicial Appointments Commission (JAC) are from within the judiciary. Of the remaining 10 members, two are from the bar, one from among the tribunals, and seven are statutorily required to be ‘lay persons’. The remit of the JAC – which incidentally is headed by Usha Prashar, a PIO – is to select judges “through fair and open competition, from the widest range of eligible candidates”.

If the British idea of demystifying the judiciary seems unrealistic in India, the UPA government could at least take a fresh look at the NDA’s lapsed Bill seeking to create a selection panel consisting of judges, the law minister, and an eminent person. The NDA model could be improved by expanding the panel to include representation from the legislature, bar and civil society. Another model worth emulating is the American system, under which the president nominates federal judges subject to open and rigorous questioning by the bipartisan Senate Judiciary Committee.

Whatever the shortcomings of the American and British systems, the important thing is their judges, unlike ours, are democratically selected. Democracy in the context of the judiciary is not about judges representing popular aspirations or being prone to partisanship. The lessons that can be drawn from the US and the UK demolish the assumptions on which the Indian judiciary has been running its collegium system. We can no longer be kept in the dark about why a Shah has been rejected or a Dinakaran selected.