Judicial appointments: Future of our justice uncertain

Who are tomorrow’s judges going to be? Who is going to appoint them and how? Huge controversies have plagued the answers to these questions.

 |  5-minute read |   09-02-2015
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Who are tomorrow’s judges going to be? Who is going to appoint them and how? Huge controversies have plagued the answers to these questions. In 1993, the Supreme Court (SC) hijacked these powers completely and vested them in the cabal of the chief justice of India (CJI) and four senior most judges (called puisne judges). For high courts (HCs) the cabal was the top three. The cabal had a rip-roaring time.

Without sufficient discipline, the judges began trade-offs. The top five judges also look for post-retirement jobs. Some posts were reserved for the CJI. (eg the National Human Rights Commission (NHRC)). But which CJI? Judges were needed for the Press Council, Law Commission, various Appellate Authorities for Telecom, Competition, Consumer Commission and so on. These were up for grabs as gifts of influence.

Mudholkar was appointed the first chairman because of his judgements on freedom of press in the high court and Supreme Court and recently Chandramauli Prasad was appointed too. He now has a sinecure. Why Katju for the Press Council, we don’t know? Many appointed people had influence with the government. One judge from UP has even claimed credit for appointing Justice Sema as the Lokayukta in UP. Sema has acquired notoriety because he wanted accommodation in Lucknow, Noida and Allahabad.

Dubious appointment

For post-retirement appointments, the CJI had an influence while the prime minister and his inner cabal the power. More recently, CJI Sathasivam was appointed as the governor of Kerala. Merits apart, how did Sathasivam’s appointment take place after he had retired?

There is this scramble for appointing judges in post-retirement jobs. This is apart from "get rich" arbitrations where some retired SC judges are chosen because they can be influenced while others write their judgements. In the SC, at least two CJIs could barely dictate orders, but wrote fine judgements. In one case, I know some judgements were drafted entirely by "just-out-of-college" clerks.

Interlaced into this are serious allegations of corruption. Lawyers say that when arguing a matter, a judgement or order which is so baseless and unworthy can only be presumed corrupt. On this basis, Justice Sinha of Allahabad was forced to resign in the forties. On this principle, the civil society has targeted certain judges — sometimes wrongly, going well over the top as in the case of Justice Sabharwal.

I believe the law of contempt is no answer to punish such allegations — a view that I had expressed for the accused in the Prashant Bhushan case. But the level of questionable judges are high. Some are corrupt, some unworthy of the office, and some downright incompetent. Some mediocre judges were appointed because they had been junior to the CJI when the latter was CJ in a high court. Some good judges were simply passed over because the CJI or some judge in the collegiums blackballed them.

Political democracy

Why is this important? India needs political democracy and the rule of law. The former without the latter is an invitation to farcical, autocratic, corrupt and cruel governance without limit. The rule of law is the central pillar of governance to arrest the “do-what-you-like” culture that plagues India. If judges are custodians of the rule of law, we need the best and most fearless. The cabal system has failed.

Will the new system fare better? The Constitution was amended to get rid of the judicial cabal. The new "cabal" is a statutory National Judicial Commission under the Act of 2014, consisting of the old cabal (CJI plus two senior judges) plus law minister (informal constituent of the old cabal) plus two eminent jurists (of whom one shall be either SC, ST, OBC, minority or woman) selected by the PM, Leader of Opposition and CJI. The two eminent jurists’ provisions are unworkable, and vitiated by potential patronage (Constitution Article 124).

The National "Judicial Commission" Appointments Act is a amalgam of past, present and untidy future. The CJI will continue to be appointed according to seniority if fit (Sect 5 (1)). For other SC judges, the formula is “ability, merit and any other criteria of suitability”.

Confusion prevails

This formula applies also for chief justices and judges of a high court appointed from the Bar. Other high court judges are appointed on the basis of seniority, ability and merit (Sections 5 (2), 6 (3)). For the high courts, the old consultative collegiums (of “CJ and two senior judges) shall continue along with consulting the chief minister and governor of the state (Section (4), (7)). What a mess of politics and confusion?

Forget the criteria. For the high court, two members of the commission can, block all high court judicial appointments (Section 6 (7)). If the president (advised by the prime minister) rejects any name for any chief justice or judge (Section 7), the commission must return recommendation unanimously (proviso). What a farce! Politics is being re-written into judicial appointments. We are not out of the woods yet. After CJI Lodha made independent appointments from the Bar in 2014, the government does not want the Supreme Court’s collegium to make appointments. This happened in 1998 when Jaitley made a presidential reference to disable Justice Punchhi from making appointments.

Now CJI HL Dattu has reversed this strategy. Since there is a challenge to the Judicial Commission Act, Dattu wants the old SC system to continue until the challenge to the Act is determined. The end result: “Ring-aring o–roses, pocket full of posies, A-tishoo, A-tishoo, we all fall down”.

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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