Calcutta Notebook


The Supreme Court has come down heavily against the Government on matters of corruption in the recent period as seen in 2G spectrum and Coalgate cases. This can be attributed in significant measure to the fact that appointments to the higher judiciary have been taken out of the hands of the Government for the last few years. But at the same time complaints of corruption in the higher judiciary have been emanating at a regular frequency. Not a single judge of the Supreme Court has been removed in the 65 years of Independence. Charges have been leveled against Justices V Ramaswamy, M M Punchi and A S Anand but none could be impeached because the procedure is very complicated.

Grapevine has it that nepotism rules the roost. Senior Advocate Shanti Bhushan had given a list of eight Chief Justices who the bar considered to be corrupt in a sealed cover to the Supreme Court. The Judges did not have the courage to open and make public the list. Some of these appointees are nicknamed 'uncle judges.' Inefficient and incompetent persons are also being appointed. The Chief Justices are not recommending enough appointments leading to scarcity of judges and pendency of cases. Most importantly, the judiciary is now answerable only to itself.  Indians have freed the judiciary from Government control but made the judiciary a self-serving institution in the process. Neither of the two systems of political- or self appointments seems to work.

The basic problem is that of balancing between the independence and accountability of the judiciary. It is necessary to keep the judiciary free from political interference but it is also necessary to keep them from becoming self-serving.

The appointment of judges has been freed from Government interference for the last two decades. Previously appointment and promotion of judges was in the hands of the Government. Indira Gandhi had superseded few senior judges of the Supreme Court and promoted one of their juniors to the post of Chief Justice of India. Such interference gives a clear signal to the judges to take a pro-government stand in order to remain on the right side of the political masters. This system was set aside by the Supreme Court and it took on to itself the task of appointing its members. The Chief Justices of the Supreme- and High Courts in consultation with the senior judges of that court decide whom to appoint to their court. This system has freed the judges from Government control but rendered them wholly unaccountable to any democratic institution. The activism of Supreme Court seen in the recent period on matters of corruption owes largely to this system of appointment wherein the Judge has no incentive to toe the line of the Government. There will be a natural tendency among junior judges to give judgments favouring the Government so that their chances of being promoted are increased.

World over the trend is to move from these extremes to a middle path. A collegium is formed with representation of the legislative, judiciary and independent citizens to make these appointments. This is better but not enough. The problem remains—which politician, judicial nominee or independent person will be appointed to the Collegium and by whom? There are good and bad persons in all these fields. It is a standard technique of the Government to form a committee with persons predisposed in a particular way so that the findings come in a particular direction. A lady once went to a philosopher and asked whether she should marry the person whom she loved though he belonged to a different religious denomination. The philosopher replied that the very fact that she had come to him with the predetermined outcome since he was known for his liberal views. The outcome would be very different had she gone to a priest for advice. The point is that the person appointed determines the nature of outcome. Hence making a Collegium only creates a facade of independence because appointments to the Collegium would be made by the same political persons.

The Government has recently introduced Judges Appointment Bill in the Rajya Sabha. The Bill aims to set up a Judicial Appointments Commission comprising the Chief Justice of India, two next seniormost judges of the Supreme Court, Union Law Minister and two eminent persons. These two eminent persons will be appointed by a Collegium consisting of the Prime Minister, the CJI and Leader of Opposition in the Lok Sabha. Problem here is that one-half of the Collegium will come from the political stream. The Collegium to appoint two eminent persons will consist of two politicians and the CJI. It is likely that the two politicians will together ensure that such persons are appointed who are soft on corruption by the politicians. In truth on many issues all politicians are together opposing the Supreme Court's efforts to cleanse the public life. The Judgment barring convicted politicians from contesting elections; or for taking out the political parties from the ambit of the RTI Act has brought all politicians on a common platform. It is likely, therefore, that these two eminent persons will oblige the line of the politicians in the Judicial Appointments Commission. In the result the present system of 'no political interference' will be changed into 'indirect political interference.'

Vol. 46, No. 12, Sep 29 -Oct 5, 2013

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