Opinion » Lead

Updated: August 18, 2012 01:00 IST

Judicial appointments & disappointments

  • V. R. Krishna Iyer
Comment (23)   ·   print   ·   T  T  

A commission to select judges will be an improvement on the collegium only if its members are of the highest standing

The Constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant.

It is in this context that Chief Justice S.H. Kapadia’s observations, at an event at the Supreme Court of India on Independence Day, underlining the need for the government to balance judicial accountability with judicial independence, have to be reconciled with what Law Minister Salman Khurshid observed about judicial propriety. It is this reconciliation of the trinity of instrumentality in their functionalism that does justice to the Constitution. A great and grand chapter on judicial sublime behaviour to forbid the “robes” becoming unruly or rude and to remain ever sober is obligatory.

The Constitution has three instrumentalities — executive, legislative and judicative. The implementation of the state’s laws and policies is the responsibility of the executive. The Cabinet headed by the Prime Minister at the Centre and the Cabinet led by the Chief Minister in the States, are its principal agencies. The rule of law governs the administration.

Parliament consisting of two Houses and legislatures at the State level make law. When the executive and the legislature do anything that is arbitrary, or contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. The Constitution lays down the fundamental rights, and if the States do not safeguard them, any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights.

Thus, among the three instrumentalities, the judiciary has pre-eminence. But the judiciary itself has to act according to the Constitution and work within the framework of the Constitution.

Felix Frankfurter pointed out thus: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

Ultimate authority

Judges are the ultimate authority in the interpretation of the Constitution, and so must be learned in the law and in the cultural wealth of the world. They play a vital role in the working of the Constitution and the laws. But how judges are appointed is a matter of concern. Simply put, the President appoints them, but in this the President only carries out the Cabinet’s decisions.

The Preamble to the Constitution lays down as the fundamentals of the paramount law that India shall be a socialist, secular democratic republic which shall enforce justice — social, economic and political — and ensure liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and promote among them fraternity, ensuring the individual’s dignity and the nation’s unity and integrity.

Need for clarity

But who will select the judges, and ascertain their qualifications and class character? Unless there is a clear statement of the principles of selection, the required character and conduct of judges in a democracy may fail since they will often belong to a class of the proprietariat, and the proletariat will have no voice in the governance: the proprietariat will remain the ruling class.

Winston Churchill made this position clear with respect to Britain thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.”

We in India have under the Constitution the same weaknesses pointed out by Churchill, with the result that socialism and social justice remain a promise on paper. Then came a new creation called collegiums. The concept was brought in by a narrow majority of one in a 5-4 decision of the Supreme Court for the selection of judges. It was binding on the executive, the decisions of which in turn were bound to be implemented by the President.

Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.

In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.

In these circumstances, the Union Law Minister has stated that the government proposes to change the collegium system and substitute it with a commission. But, how should the commission be constituted? To whom will it be answerable? What are the guiding principles to be followed by the Commission? These issues remain to be publicly discussed. A constitutional amendment, with a special chapter of the judiciary, is needed. Such an amendment can come about only through parliamentary action.

Surely a commission to select judges for the Supreme Court has to be of high standing. It must be of the highest order, of a status equal to that of the Prime Minister or a Supreme Court judge. The commission’s chairman should be the Chief Justice of India.

In the process of selection, an investigation into the character, class bias, communal leanings and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency functioning under the commission’s control. These and other views expressed by outstanding critics may have to be considered.

The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection or ill-will. It should act independently — such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justice of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process.

(V.R. Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

More In: Lead | Opinion

The eminent jurist has made a strong case for appointment of a high-powered judicial
Commission to induction men of high integrity to the judiciary. Judiciary has played a
Significant role in India , though some judges have embarrassed the nation. We found it
Difficult to get rid of the wrong doers, due to legal bottlenecks. The nation expects the
Eminent jurist to show the pathway to dispense with the services of those who tread the
Wrong path in judicial life to enable the lawmakers , to take appropriate action for the
Maintenance of high standards in judicial life. C.P.Chandra Das , Coimbatore

from:  C.P.Chandra das
Posted on: Aug 20, 2012 at 12:22 IST

Probably there is no one perfect way to appoint Supreme Court or lower level judges. Practices among countries differ, including among the advanced democratic societies. However, the appointment process must be transparent, involve public input, bring out the relevant issues, be credible and engender public confidence. As Summet Jalagaonkar has already noted it is the functioning of the lower courts that matters most to the average citizen. So if our judiciary is to carry out their assigned role effectively and earn citizens' respect, it is vital that the shortcomings of our lower courts be addressed. May be the Supreme Court can play a role in that reform.

from:  Virendra Gupta
Posted on: Aug 20, 2012 at 11:13 IST

Excellent article.Highly suited in the existing scenario.
Any change should be from bottom to the top in judiciary.
The quality of judgement down the level matters high for the
common man.The quality of the selection must be to meet the needs,clearly written very well.Thanks to The Hindu.

from:  Santhanam
Posted on: Aug 20, 2012 at 07:32 IST

I hope Khurshid's idea of a commission is not that of a GOI majority deciding who can be a judge. This idea of a commission where HM , PM and Loksabha opposition leader can decide CVC and other such important posts has shown its limitations in the past.
If this was what Khurshid means by judicial commission, the process of destroying Independence of constitutional institutions, started by Indira Gandhi would be completed by her daughter in law , Sonia Maino Gandhi.
We already had a compromised CEC in Navin Chawla(his wife's NGO taking money from 32 Congress MP's MPLAD funds), a CVC favorable to Gandhi family appointed by overruling opposition's valid reservations, only to be removed by SC. If SC judges were to be compromised similarly by a GOI majority commission , the already faltering Indian democracy (India is just a sham but working democracy, where judiciary is the only hope, even media is compromised) would totally be destroyed.

from:  Aniket Sinkar
Posted on: Aug 19, 2012 at 21:25 IST

I request all eminent jurists to give their strong voice for speedy trial of cases. Let the judiciary enjoy all their rights and deliver its duties. But the plight of common man in courts is awful. The long standing trials make them economically weak. Everyone knows Justice delayed is Justice denied. Yet we are insensitive to it. Judges can also raise their voices for strong laws to punish the economic offence criminals. Duty is also as important as rights.

from:  swaminathan
Posted on: Aug 19, 2012 at 21:06 IST

Well said,my lord.But an element of doubt persists with regards to
assertion that the SC can pass directions u/a143 if executive or
legislature go wrong.To my mind this power can be exercised u/a141.It is
likely to be an editing error therefore needs correction.

from:  Dilip Tiwari
Posted on: Aug 19, 2012 at 17:22 IST

A very balanced article. Transparency is required to be enhanced not only in the appointment of higher judiciary but also in the designation of "Senior Advocates" by the High Courts and the Supreme Court. After all Judicial independence and Accountability are two sides of the same coin. Judicial integrity is the legitimate expectation of the public. It may help judicial independence and integrity if the proceedings of the Courts are telecast live and a DVD of the proceedings is supplied to the litigant on demand. Litigants also need to be protected from judicial overreach. A transparent and efficient judges' appointment system may help to remove negativism prevalent in a cross-section of the public mind about higher judiciary.

from:  Uttamchand
Posted on: Aug 19, 2012 at 13:43 IST

Indeed there is a great need for a complete overhaul in the prodedure
for the Appointment of Judges in the higher echelons of judiciary in
India, but at the same time we also need to focus at the quality of
judges or so called Magistrates at the subordinate level of judiciary.
As my lerned friend in the earlier comment has rightly said that
common man is least concerned with Higher Judiciary, as he is busy
knocking the doors of justice at the lower levels of the judiciary.
We always talk about changing the Indian democratic system by
concentrating at the administration at the village level. Why cant we
have the same approach in bringing change in the judicial system by
first cleansing up the mess at the lower level and than go to the
higher level. The Fourth estate i.e., Media always provides inputs
about Higher Judiciary and nothing says about the working of the
subordinate level courts.

from:  Sumeet Jalgaonkar
Posted on: Aug 19, 2012 at 12:17 IST

It would definitely be a positive step as one knows more and dispassionately after retirement from the job.

from:  S C PODDAR
Posted on: Aug 19, 2012 at 12:07 IST

V R Krishna Iyer has outlined good suggestions for appointment of judges for the Supreme Court and high court! It is fact that since the day collegium system was adopted in the wake of razor thin majority judgement of the Supreme court validating the collegium system,the standard and quality of judges appointed through such system has deteriorated in the entire judiciary.This apart collegium system has been adopoting strange and partisan manner to appoint judges.Baring a few almost all appointments through this system have badly affected the standard in judiciary! Only the sons and daughters of big shots, mainly SC and high courts judges are being appointed as judges, ignoring social structures and social justice parameters in the Indian society. The newly introduced bill by union govt and suggestion and appointment procedures through commission, led by chief justice of India will bring a new change in system for appointment of quality and good charaters judges!

from:  krishn kumarsingh
Posted on: Aug 19, 2012 at 09:38 IST

I totally agree with V.R. Krishna Iyer that the process of selection and
appointment of judges should be transparent and the commission should be
of highest order and totally unbiased. It is imperative to ensure the
individual's rights and dignity. After all its not the high class but
the working class which has to suffer.

from:  Deepak Aggarwal
Posted on: Aug 19, 2012 at 00:46 IST

Of the three instrumentalities of the Constitution — executive, legislative and judicative, the
weakest is the judicative. We know highly talented and intelligent youth are selected to go
into civil services which form the part of the executive. We have competitive election process
to fill the legislative branch - some are less educated than others, but they represent the
people and bring collective life experiences to legislative process. it is also common to find
brilliant people in this bunch. But our post independence judiciary come from the pool of
students who fail to go to civil services, medicine, engineering, management or science. And
these students of below average academic abilities are educated in (chaotic and lawless) law
colleges that are rated the lowest in terms of dedication to their field of study. Therefore, the
most important job is to build world class law colleges and attract bright and dedicated
students to the legal profession to safeguard our Constitution.

from:  Govind
Posted on: Aug 18, 2012 at 22:37 IST

Justice V.R.Krishna Iyer's suggestion is excellent. What can't our Government adopt the ideas of such great people and save the country from the corruption which is now spreading on the judiciary also.

from:  Bharat
Posted on: Aug 18, 2012 at 19:28 IST

It is sad that our rulers appoint judges NOT on basis of integrity and
knowledge but other factors too !! like caste, minority, social status
and influence etc; which is absurd - appt committee should be free from
all interference and judges must be protected fully for honesty; we have
cases of former justice involvement in scam (helping family etc Kerala)
Many can be cited at other levels; all because there is NO sincerity on
part of GOvt to ensure FULL Justice to common man of India; we suffer;
and some tend to take law into own hands, and get off too !!

from:  Radhik Hairamf
Posted on: Aug 18, 2012 at 18:27 IST

Making legislation on a regular basis will not make more difference.What
Dr. Ambedkar claimed in the parliament while presenting the constitution
is that the success of the constitution would depend upon the "role and
the nature" of the public and their political party.I am of the view
that instead of making legislation we should put our 100% effort to make
the existing structure function properly. we should not make the system
more complex which can be counter-productive.

from:  Uttam Kumar
Posted on: Aug 18, 2012 at 18:26 IST

As a common man, I am least concerned with the appointment of Jugdes at Supreme Court of India. My first connection to judiciary is through district/session level courts or lower courts. My plight of injustice, biased judgements, corruption, few knowledgeable but largely inefficient judges start at these lower courts.

I am not sure whether "The Judicial Commission", whenever comes into being, is going to appoint judges at all levels. If not, such commissions have appeared and dispersed without creating a huge impact on system.

from:  Himalay Oza
Posted on: Aug 18, 2012 at 17:11 IST

The independence of the judiciary is a basic principle of our Constitution,the Supreme Law of the Land.But it is sad that the all inclusive Constitution does not contain provisions for selection of Judges to the Higher Judiciary,who interpret the Constitution.Krishna Iyer Sir's idea of such an amendment to the constitution incorporating procedure of Selection of Judges of Higher Judiciary is novel and sounds good.

from:  R.Sreeram Kovoor
Posted on: Aug 18, 2012 at 12:12 IST

We have such commission in Pakistan. It has created more chaos than
resolving it. One particular group of lawyers have overtaken the
whole judicial system. Almost consensus judgments are routine. The
fundamental mistake we have committed is that the commission
comprises of sitting judges of supreme court headed by Chief
Justice. They try to monopolize every thing and believe other
institutions as subservient. Commission should be broad based and
there should be no role of sitting judges in it. You may appoint
some retired judges or eminent jurists as members along with other
representatives from the society.

from:  Asad
Posted on: Aug 18, 2012 at 11:45 IST

Let the execute be ruthless and judiciary independent both will
compensate each other. Judiciary is the watch dog of constitution and
judges are its guards and if these guards are appointed in an
unprincipled way with out taking in to consideration the spirit and
ideology of constitution justice will become a distant dream for
common man.For the sustenance of justice and equality it is utmost
important that the selection should be done in away that gains public
confidence.The decision making for selection should be kept away from
any executive or legislate influence and an absolute independent body
consisting of people of high integrity and impeccable propriety free
from any political, communal, caste and secterian lineages should be

from:  Vinay Anand
Posted on: Aug 18, 2012 at 10:51 IST

appointment of judges should be very transparent, after all they are
going to give verdict on certain issues or cases.

from:  shadman ansari
Posted on: Aug 18, 2012 at 10:28 IST

Views aired are real worth following BUT who will do it? Money power
rules ALL and sundry today and it will be MOST difficult task to find
right persons to the high office; yet we must make sincere efforts and
independant body outside political rulers, known for commitment and
clear conscience exercise in selection for upholding Justice in real
terms as our National slogan says (Satyameva Jayate) alone should do
it. We can only HOPE for better days ONLY after the FOREIGN Lady
dominated Congress is fully washed out and its allies like SSP DMK etc
wiped out. A dream now, shall remain for long ?? Hope not; God bless
us !

from:  Radhik Hairam
Posted on: Aug 18, 2012 at 03:10 IST

very relevent article by a eminent jurist. Sir you are the person who bring the concept of P.I.L. and judicial activism by considring even latters aS P.I.L. By this even weaker class got a say in justice. Here also you pointed out reform in appointment of judges very rightly.

from:  Abhishek Kumar
Posted on: Aug 18, 2012 at 01:46 IST

The subject is dealt with wonderful clarity and frankness. It is time the country ends the opacity in the selection to high constitutional posts. It however goes without saying that the value of independence of judiciary is precious, nay, fundamental for the proper functioning of the judiciary which otherwise is apt to be reduced to the status of a subordinate department of the executive and more than that a mere pocket borough of an unscrupulous politician that wields power. yet it does not mean that we should allow ourselves to be willingly scared out from taking any initiative in the proper direction.

from:  Satyanand Kattamuri
Posted on: Aug 18, 2012 at 01:43 IST
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