Restoring the judiciary’s credibility

The very credibility of the judiciary is at stake after recent allegations of misconduct against judges. The time is now ripe for reforming the process of judicial appointments to ensure that the judiciary is accountable to the public and free from interference

Updated - December 04, 2021 10:57 pm IST

Published - July 24, 2014 12:37 am IST

Justice Markandey Katju, a former judge of the Supreme Court and no stranger to controversy, has once again set the cat among the pigeons by alleging that three former Chief Justices of India made “improper compromises” under political pressure in confirming the appointment of a judge they knew to be corrupt. Making the revelations, Justice Katju said he wanted to show “how the system actually works, whatever it is in theory.”

It might therefore be instructive to understand the theory behind the system of appointing judges, for a better understanding of its actual working.

Birth of collegium system The tussle between the executive and the judiciary for control over the process of judicial appointments has its origins in what has come to be known as the First Judges’ case. In that case the Supreme Court, led by former Chief Justice of India P.N. Bhagwati came down in favour of the executive stating that “the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.”

The collegium has now become nothing more than a cabal, a secret society whose deliberations are not a matterof public record.

In 1993 however, in the Second Judges’ case, the Supreme Court led by former Chief Justice of India J.S. Verma overruled the First Judges’ case. According to Justice Verma, in the actual working of this process, even the executive attached primacy to the role of the Chief Justice of India in the matter of appointments to the superior judiciary. He thus went on to hold that “the selection should be made as a result of a participatory consultative process in which the executive should have the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose.”

This decision led to the birth of the collegium system of appointing judges to the higher judiciary, the working of which was set out in the Third Judges’ case by former Chief Justice of India S.P. Bharucha. The collegium system of appointing judges to the High Court is of particular relevance for our purposes; the collegium must take into account the opinion of the Chief Justice of India which “would be entitled to the greatest weight,” the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court bench “who are conversant with the affairs of the concerned High Court.”

Thus, the executive was completely frozen out of the process of judicial appointments, with Justice Bharucha declaring that “the Chief Justice of India, acting on the institutional advice available to him, was the surest and safest bet for preservation of the independence of the judiciary.”

Secrecy of the collegium Justice Bharucha’s confidence in the office of the Chief Justice of India has been given short shrift by Justice Katju’s explosive allegations. According to Justice Katju, when he was appointed Chief Justice of the Madras High Court, he came across a judge he believed to be corrupt. He subsequently asked for an inquiry to be conducted into his affairs by the Intelligence Bureau, and claims his worst fears were confirmed by the then Chief Justice of India R.C. Lahoti. The collegium headed by Justice Lahoti subsequently made a recommendation to the Central government that the judge in question must not be given a renewal after his current term expired.

But instead, claims Justice Katju, this judge was given an additional term by Justice Lahoti himself under political pressure from a Congress minister. Justice Katju alleges that the judge in question was close to an ally of the ruling United Progressive Alliance (UPA) government and this led to Justice Lahoti being pressured into granting the extension. Justice Katju alleges that the same judge was granted an extension by Justice Lahoti’s successor, Justice Y.K. Sabharwal, and was made a permanent judge by his successor, Justice K.G. Balakrishnan.

Sadly, it is nigh on impossible to ascertain the truth behind Justice Katju’s allegations. The reason behind this is the manner in which the collegium system functions, as illustrated by the controversy involving former Chief Justice of India Altamas Kabir last year. The Chief Justice of the Gujarat High Court wrote a letter to the President and Prime Minister stating that he was overlooked primarily because he had opposed the elevation of Justice Kabir’s sister as a High Court Judge when he was in the Calcutta High Court. His request, that he be shown the material which formed the basis of Justice Kabir’s decision regarding his competence and character was denied.

Again, the allegations made by the Gujarat Chief Justice are unverifiable as the collegium has now become nothing more than a cabal, a secret society whose deliberations are not a matter of public record. In fact, a Bill has been introduced in the Rajya Sabha to do away with the collegium system altogether and to replace it with a National Judicial Appointments Commission. While a constitutional amendment has already been passed in the Rajya Sabha last year to pave the way for the commission, the new government has been conspicuously silent on the issue.

This silence is perhaps best explained by the recent tussle between the judiciary and the government over the appointment of Gopal Subramanium as a Supreme Court judge. Withdrawing his candidature after his name had been proposed by the collegium for elevation to the Supreme Court, Mr. Subramanium spoke of how adverse reports about him by the Intelligence Bureau were “a result of carefully planted leaks aimed at generating doubts in the minds of the collegium and of the public as to the suitability and propriety of appointing me as a judge of the Supreme Court.”

Reforming process of appointments All of this lends further credence to Justice Katju’s contention that while the executive has no role in the appointment of judges, in theory it continues to exert significant pressure on the collegium in practice. Speaking in the Second Judges’ case, Justice Verma opined that the collegium system would ensure “the hyperbolic executive intrusion to impose its own selectee on the superior judiciary is effectively controlled and curbed.” If the Gopal Subramanium episode and the allegations of Justice Katju are anything to go by, the exact opposite seems to be happening.

Given the current state of affairs, the Judicial Appointments Commission would somewhat institutionalise what is already happening in practice as it would consist of the Chief Justice of India, the two seniormost judges of the Supreme Court, the Union Law Minister, and two eminent persons. Even if the government has in fact made a conscious decision to stick with the current collegium system, the very least it can do is to take immediate steps to reform its working. Prime among these should be to give the collegium constitutional status and to bring its deliberations within the purview of the Right to Information Act.

Considering the serious allegations of sexual misconduct made recently against two retired Supreme Court judges, coupled with allegations made by Justice Katju, the very credibility of the judiciary is now at stake. The time is now ripe for reforming the process of judicial appointments to ensure that the judiciary is accountable to the public at large, while at the same time being free from any interference. Only then can the judiciary live up to its billing, in the words of Justice Krishna Iyer, of acting “as a bulwark against executive excesses and misuse of power by the executive.”

(Abhishek Sudhir is assistant professor and assistant director, Centre for Public Law and Jurisprudence, Jindal Global Law School, O.P. Jindal Global University.)

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