EDITORIALS

For Justice Concerns Us All

We need a public debate on guidelines for appointing senior members of the judiciary.
he appointment and transfer of judges to the countrys high courts and the Supreme Court have been a contentious issue. It has simmered for many years between the higher judiciary and the government and ares up at periodic intervals. In April this year, the union law minister announced that a Judicial Appointments Commission to give the executive a voice in the appointments was on the cards. To this the then Chief Justice of India (CJI) Altamas Kabir responded that the collegium system was working ne and there was no need to change it. Soon after taking ofce, the new CJI P Sathasivam also reiterated his faith in the collegium system. The collegium, comprising four senior-most judges of the Supreme Court and the CJI, decides on transfers and appointments. It has been in existence for nearly 20 years now and was established in response to two signicant rulings of the Supreme Court. Its critics point out that it is not sanctioned by the Constitution which states that the appointments should be made by the president after consulting whichever judges of the high courts and the Supreme Court (including the CJI) he/she deems t to do so. However, in the Supreme Court Advocates-on-Record Association vs Union of India ruling in 1993, a nine-judge bench said that the CJI must have the primal role in these appointments. In 1998, this was further reinforced when in reply to a presidential reference on the meaning of consultation, the apex court framed guidelines that led to the collegium system. It was expected that this would shield the judiciary from political interference and guard its independence. The treatment of the judiciary by the government during the Emergency and in the years following had left no doubt about how disastrous the power to appoint and transfer judges could be in the hands of the executive. The apex court dismissed a public interest litigation (PIL) in January this year pleading for the scrapping of the collegium system. Over the years, however, even the collegium system has garnered more than a fair amount of criticism for the lack of transparency and secrecy. Retired judges, convinced that extraneous considerations led to their being overlooked in the elevation to higher posts, have been articulate in their criticism. Former CJI Kabir, who retired recently, has been at the centre of

a controversy with the Chief Justice of the Gujarat High Court Bhaskar Bhattacharya accusing him of stalling his elevation to the Supreme Court on grounds of personal animosity. Not only that, it is pointed out that the collegium lacks an administrative and intelligence gathering mechanism to assist it in the appointments leading to delays and arbitrary choices as there is no minimum criteria for the selection. On the other hand, irrespective of political hue, the executive has never been comfortable with not having a role in these appointments. The increasing prominence of courts in almost all spheres of national life, especially in corruption cases, has no doubt raised the discomfort levels. More and more, public discourse is lled with how the senior judiciary has to shoulder responsibility while the executive misuses power. The National Democratic Alliance (NDA) had proposed a National Judicial Commission and now the United Progressive Alliance (UPA) has come up with the suggestion of a Judicial Appointments Commission. The latter is supposed to be headed by the CJI, with the government represented by the law minister and will include two judges of the apex court as well as two jurists nominated by the president. Even if the collegium system has faced bitter criticism on occasion, the executive cannot be allowed to call the shots. In 1987, the Law Commission in its 121st report titled A New Forum for Judicial Appointments proposed a body of 11 members with the CJI at the head and representatives of the senior judiciary, the executive, the bar and legal academics. It left out the consumer of justice the litigant saying it would not be advisable in the present state of affairs to give it representation on the commission. A number of ills plague the Indian judicial system. The distressingly large backlog of pending cases in courts from the lowest to the highest is one obvious problem. The cold statistics mask the very real human misery that this backlog generates. Although there are many other and complex issues involved, there is no doubt that a just system to appoint judges constitutes an important part of the effectiveness of the justice delivery system. A rst step would be to invite a vigorous public debate on laying down a modicum of criteria for appointments of judges at all levels of the judiciary.

Economic & Political Weekly

EPW

august 10, 2013

vol xlviII no 32