Whereas the whole debate centred on flawed principle of who is supreme, the ills plaguing the judiciary remain unanswered. Read on to get the complete picture.
Talk of the town these days, not only in legal circles but almost in any meeting, is the ‘Appointment of Judges in India’. Everyone is asking: are we closer to a conclusion even after the four main judgments, i.e. the First Judges Case, Second & Third Judges Case and now the NJAC Judgment on the subject of Appointment of Judges in India? However, rather than answering questions, the successive judgments have given rise to more questions.
The whole debate unfortunately has got centred around as to who is ‘Supreme”. A very large part of the NJAC Judgment delves upon this question alone. Justice Khehar observes at one place in the judgment that the ‘primacy of CJI in appointments is the basic structure of the Constitution of India’. He further observes, “Expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance”. If insulation was the basic feature of the Constitution then how shall we balance it with the other even more important basic features of the Constitution, i.e., “the system of checks & balances” and “the system of accountability to he people of a democratic country”. The Supreme Court must appreciate that this insulation of judiciary from the real facts is one of the biggest defects in the present day system.
The Supreme Court, while saying that this job cannot be left to executive, also got drifted to politician bashing and started deliberating about the malafide intentions of the political class even at the cost of being subjective and personal. The court almost accused the political establishment of class bias by getting together across party lines to usurp the power to influence the Judiciary. To substantiate this presumptive supposition, the Judgment gives example of how quickly and without debates the Act was passed in both houses of Parliament, and ascribes it to “universal bias of legislature against the judiciary”. The court saw a design in that process.
However, how could the court say that elected legislature does not reflect the will of the people? Legislature could have various reasons for not debating this topic openly in a publicly- telecasted proceedings of the Parliament. It could be that the political class did not want to discuss the ills plaguing the judicial system openly so as not to dwindle the trust and faith of the common men in the judicial system. All of us regularly talk of numerous deficiencies in Judicial System, but we desist from talking about it in media. Does it mean everything is hunky dory with the Judicial System? If the argument of desire of “political overreach to control judiciary” is correct, then the reverse argument of “judicial overreach to control the legislature or democratically appointed government” could also be made.
Trying to prove its point, the Supreme Court unwittingly accepted the remarks about the so-called defective appointments made during seventies and eighties, little realising that almost all of those appointments were made with the total concurrence of then Chief Justices, who were known for their exemplary performances. Are we to believe that persons like me who joined legal profession in the eighties, have been arguing their cases before the judges who were products of such defective system? Have we cheated all our clients so far? In all fairness, if the Supreme Court was referring to those precollegium cases, it should also have taken contingence of numerous instances in which high court Judges were promoted to the Supreme Court by ignoring seniority, and later the superseded judges were also promoted to become juniors in the Supreme Court to a judge who was their junior in the high court. This has happened in both pre and post collegium era. The elevation of Justice Rajendra Babu who was almost three years Junior to Justice K.G. Balakrishnan is one such case. If Justice Balakrishnan had been elevated as per his seniority, he would have become the CJI in 2004 and would have become the 34th CJI of the country, instead of the 37th, and would have adorned the post of CJI for almost 6 years rather than two and a half years. This happened after collegium. No one knows of reasons for such supersessions.
To prove the point about independence of judiciary/ primacy or supremacy of judiciary/ separation of judiciary from executive, successive judgments have relied upon Article 50 of the Constitution of India which reads as under:-
“50. The State shall take steps to separate the judiciary from the executive in the public services of the State.”
There are no words such as supremacy or primacy used anywhere in the Constitution as repeatedly used by the Supreme Court. At the time when the Constitution was being framed, the Civil/ Public Servants all over India used to have dual charge as executive as well as judicial magistrates. There was no cadre of higher or lower judicial services. As a matter of state policy, it was prescribed that a separate judicial cadre must be created which must be separate from the executive. The Article 50 makes no reference to the Appointment of Judges in the High Court. Interpretation of Article 50 to stress for need of Supremacy of Judiciary is totally unwarranted. Independence, supremacy, primacy or separation are not synonyms. Reliance upon Article 50 to derive the preposition was totally misplaced. Judgment has thus not been able to deal with the argument of Imperium in Imperio. No branch in democracy can be allowed to dominate the other, nor can it be allowed to insulate itself from the other.
Just because I feel the NJAC judgment is based upon a number of incorrect premises, it does not mean, I support NJAC as it was sought to be inducted. I feel the NJAC effort neither tries to identify the problems with the present system nor does it provide solutions.
B N Rau in the first report on Constitution said that, merit should be the only criteria for appointment of judges. Both systems do not ensure that only meritorious should be selected. Actually they don’t even define merit. None of the two systems ensure that all those who are capable and meritorious are taken in the zone of consideration and only the best available are selected. Both systems miserably fail in predefining the criteria, parameters and qualifications for the post.
Article 217 of the Constitution, which prescribes qualification to be a High Court Judge, says, “holding judicial office for 10 years” or “advocate of High Court for 10 years”. How can just being a judicial officer or advocate for a particular number of years be the qualification for a person who is sought to be appointed to such a high office? It is obvious that something more, a predetermined objective criteria which leaves minimum subjectivity in the process, is needed. This basic defect in the “Basic Structure” leaves scope for subjectivity, thus putting the whole process in shadow of doubts. Actually after the legislation of The Advocates Act, 1961, there is no Advocate of High Court. All advocates, practicing at whichever court, are same. The Constitution itself needs an amendment to that effect.
Neither the Supreme Court nor the Parliament has taken into consideration that at the time of framing of the Constitution there was no specialised cadre of judicial officers at the Civil Judge/ Magistrate or at the District/ Sessions. It was for this reason probably that the provisions for appointment of lawyers practicing at the High Court were made. As on date, there is a vast cadre of Higher Judicial Services as well as Judicial Services in all states. It is but natural that these officers, who work in most jurisdictions ranging from civil, criminal, revenue, rent, etc., possess diverse experience and are the most suitable people to be appointed as High Court judges. All of them also have a track record and the said track record can be extensively examined before anyone of them is promoted/ appointed to High Court. Preference should be given in all such appointments to these officers and only when enough High Judicial Services officers meeting the predetermined criteria are not available then only applications could be invited from other qualified people. The present policy of selecting 50% High Court judges from the bar and 50% from the services has no constitutional basis and it has a dampening effect on the Judicial Services, as it curtails the opportunity which should reasonably belong to the said cadre.
The other problem which neither of them addresses is the lack of objectivity and predetermined criteria. Criteria should be predetermined. It should be elaborate and must be universally applied giving equal opportunity to all people who aspire to be the judges.
Lack of transparency and also non-involvement of stakeholders such as the general public and legal community in the whole process are other issues which neither of the two systems addresses. When it is accepted by everyone that the real problem with system of appointment of judges is lack of transparency, why should the whole process and deliberations taking place be not made public? Instant comes the answer, that if all aspects of a prospective judge’s life, negative as well as positive, will be made public, anyone can misuse them. Also whenever a person’s name is considered a lot of complaints start pouring. Answer is, why should a judge have anything which is worth concealment? If a person has any aspect of his life which can be scandalised, he should not be made a judge, as people having that information will be able to blackmail and manipulate him; there will always be someone having knowledge of those facts. It’s better that such facts are known in advance to all, deliberated, debated and ironed out before a person is made a judge, so that he can fearlessly and confidently function. A judge has to be above all suspicions like Caesar’s wife. Why should a person seeking to be a judge have any fear or why should he have anything to hide? This secrecy is the mother of all evils in judicial system.
The problem also lies with the arrogance on the part of political as well as the Judicial Class in presuming that they know it all. In a television debate, noted journalist Mr. Swapan Dasgupta rightly pointed out that there is a presumption that the justice is the domain of some loftier minds.
A process can certainly be evolved whereby the process of appointment of judges. For example, a group representing students, politicians, lawyers, journalists, sociologists, chartered accountants, doctors, engineers, teachers, law professors etc., may be allowed to question the prospective candidate in public view (obviously moderated by a responsible person) and a panel consisting of distinguished and internationally recognized law professors, judges, psychologists and social scientists rate the candidate on the basis of his knowledge, approach, positive disposition, composure, humility and power to keep balance. Even the subsequent process of rating by experts should be public.
In any Judicial System the only CONSUMER of Justice is the litigant/ victim. Should he not have any say in the formation of a system to which he must possess allegiance and is called upon to trust. Unfortunately in our country everyone else is CONSUMER of Justice except the common men. Lawyers, judges, clerks everyone earns their livelihood without ensuring justice to this person whose miseries the system is supposed to cure.
Both systems do not address a large number of problems plaguing the judicial system which are well known e.g. arrogance in functioning of courts; preferential treatment to Senior Lawyers, out of turn hearing of cases of important and powerful people. In May this year, the Supreme Court refused to grant early hearing to a woman whose husband inserts torch in her, but had time for priority hearing of Vodafone case or Ambani brother’s personal feud for weeks together.
No judge can do justice if he doesn’t possess positive disposition and an unbiased mind free of pre-suppositions. Even if his knowledge of law is not superlative, there would always be lawyers to fill that gap.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
