The system of choosing judges should be preceded by a national debate and discussion
The law treats the rich and the poor, the man and the woman, the mountain and the valley, all on an equal footing. But the legal system can be operated only if lawyers are able to argue. The Bar is integral to the administration of justice, but it does make the process expensive and rather exclusive.
India has adopted an adversarial legal system and it cannot function without the Bar. The members of the Bar compete in a commercial economy. Going to court involves hiring advocates, who naturally vie with one another in terms of their remuneration.
The poor man is often rudely shut out of a money-driven market. In a world where the have-nots have no clout, the law and the lawyer by and large tend to support the haves. The judiciary itself is largely chosen from among the members of the Bar, and, therefore, inevitably tends to have an inherent predisposition towards those with a good bank balance.
The Secretary of State for the Home Department, W.S. Churchill on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb. col.1022) put it powerfully 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.” (The Politics of the Judiciary, Page 173)
Representatives of the poor
Under the circumstances, socialism will remain a mirage unless the process of selection offers an opportunity for the representatives of the poor to sit on the Bench. The all-important issue where social and economic justice is a matter of state policy is the instrumentality of the selection of the members of the judiciary. Collegiums have ignored this perspective and the most relevant question today in a democracy with a socialistic pattern of society concerns the inclusion in the Constitution of a chapter on the judiciary that would seek to ensure the right orientation of the judicial structure.
Justice has civil and criminal dimensions, and both require substantial mutations which ensure that the voice of the weaker sections is reflected in judicial verdicts. The Supreme Court has interpreted the method of choosing the higher judiciary in a judgment that sets down that with a majority of one it could create the collegium. No plan, no commission, no parliamentary debate, no national symposium but a single vote that makes a majority in a single judgment.
This ad hoc accident is what governs the choice of the members of the higher judiciary. The seniormost three or five judges of the High Court or the Supreme Court comprise the collegiums. Ideology, class character, antecedents, performance or position in the social milieu hardly considered. The whole process is arbitrary, and naturally the perfunctory selection has come up for criticism.
Now, the government and a former Law Minister have claimed that the government has a draft alternative to the collegium. What it is, no one except the government knows. It is wrapped in a mystery of Secretariat files, and buried inside an enigmatic docket of the Law Ministry.
We require a public discussion of a well-thought-out draft proposal where the Bar will get to express its views and the higher judiciary too will give its views. But it shall be the product of national debates, symposia, parliamentary discussions and expression of views by academics, intellectuals and other enlightened sections of humanity.
The subject concerns India’s highest-level judiciary, whose verdict is final and binding on the nation. Such an authority needs considerable maturity. Neither Parliament nor the Union Cabinet has chosen to vocalise its views on the subject.
I advocate publicity on the above lines. If necessary, the President of India may appoint a commission. It is better to hasten slowly than to rush into law a secretive proposal of the government.
It is a pity that despite the Constitution, and the concept of infallibility of the Supreme Court, many of its appointments have been disappointments.
(V.R. Krishna Iyer is a former Judge of the Supreme Court.)