Lame Judiciary….!

Among all the three organs of the State; the legislative, the Executive and the Judiciary, Judiciary is believed to be the strongest. In any Nation, especially in a democratic one, judiciary is to act as the guarantor and protector of law. But the current position of Indian Judiciary has shown nothing like this.

This could be a known fact that in India, the appointments of judges in higher judiciary are made through the collegiums system which consists of Judges of Supreme Court, judges of High Courts concerned, and President, as the ultimate consenter.

The 121st Law Commission Report had brought the issue of appointments of judges in higher judiciary within the scope of its proposals. Keeping in mind the backdrop of judicial appointments, the proposals for the appointment of Justice Dinakaran and Justice A.P.Shah, recently, had kindled the concern over the issue. Recent incidents have indeed left the present collegiums system dubious. It has questioned the consistency of the system with the democracy. The present system of appointments works backstage and hence lacks transparency.

Moreover, the vacuity over the issue has been persistent for years. The report has recommended introduction of a National Judicial Commission instead of the present collegiums system. Although collegiums system so composed has been working in India in the appointments and removal of the judges of higher judiciary since the time the constitution has been given effect to, however, the present collegiums system does not seem to have been very convincing according to the need of the society. In the current world, when new rights are to be identified, there is an emergent need of higher level of transparency for the better and extended protection of the rights of the people.

Transparency forms the sole component and this is the idea behind appointments at the most respectable and reliable organ of the State. Judiciary, no doubt, is regarded and has been bestowed with utmost confidence of the people of this nation. The higher the faith is inculcated, the higher the expectations are generated out of the same. Indian judiciary, especially higher one, which incorporates both high courts at state levels and Supreme Court at central level, has gained much of public belief and faith and has confined within the public confidence. It is the highest source of reliability, remedy for all sorts of grievances. Therefore, such institutions require to be more transparent in their functioning so as maintaining this dignity of theirs.

Any lack of transparency, concealment of fact, or biasness on the matter of any function so performed would render the judiciary less-reliable and result in loss of confidence and a strong backlash against the judiciary. To hinder such a possible backlash to occur, necessary steps are to be taken immediately. The inception of NJC would rather buttress the belief of the people causing transparency to grow. It can most certainly be used as a vehicle for gaining transparency.

The NJC would consist of the Chief Justice of India, who would be its chairperson; two judges of the Supreme Court next to the Chief Justice in seniority; the law minister; and one eminent citizen to be nominated by the president in consultation with the prime minister, who will hold office for three years.

Further, the system of impeachment created by the Constitution for dealing with judicial misbehavior is impractical and unworkable. The Commission, however, would act as a mechanism which would have powers to transfer judges and inquire into complaints against them, prevent unilateral transfers and/or inquiries. This is to be taken note of that the present system requires signatures of over 100 MP’s on an impeachment motion which is quite impossible to be achieved. Therefore, constitution of an independent, separate commission, free from political and executive motives and never ending legislative processes is to be given a way.

The Rule of Law must be applicable on the judges and the politicians too. Law is supreme and every single being is subordinate to it. Meaning thereby, if appointments are made, there must be a law governing them, they should not be made on the basis of sole discretion of the members. They too must follow the rules and regulations before appointing Judges. In Aristotle’s words too, “for a judge to seek to be wiser than the law is to the very thing which is, by wise laws, forbidden”.

By Bhavtosh Agrawal on July 12, 2010 · Posted in Perspective

2 Comments | Post Comment

Aditya Kane says:

The point of having impeachment of judges not be tied in anyways to legislative bodies is actually counter productive. After all the judiciary, executive, and legislative bodies are supposed to keep each other in check.

I am not sure all appointments or notations against a judge can be made public considering how the law works right now. There are various reasons which can be noted but can turn out to be embarrassing. I am sure some of these are also personal views on if the judge it fit to be appointed.

A way out can be like in the US, where the judge might need to face a parliamentary committee and answer questions which can be made public. The comittee can then probably give its report to the legislative body.

Frankly in our sort of democracy the legislative bodies have far too much direct control on the executive.

What do you think??

Posted on July 16th, 2010

Bhavtosh Agrawal says:

@Aditya: In order to understand what the problem is, let us first draw a demarcation between two terms "Political/Executive check" and "Political/Exective motive".
If any legislative process in judicial matters is followed in furtherance to the Executive Check, fairly and non-arbitrarily, then it will surely be a democratic feature, and I am not against the same.
But, if any legislative process is followed in furtherance to or towards fulfillment of any political or executive motive, which is arbitrary and unfair, then it's an undemocratic act and detrimental to the reputation of judiciary.
I believe you are aware of the recent incidents of appointments of Justice P.D.Dinakaran and Justice A.P.Shah, wherein the posts were alleged to have been created out of sheer political motives and were based on political issues, rather than any fair rationales.
Also, no constitutional stauts has been given to seperation of powers and interference of one organ with the functions of another, therefore, there is no binding effect to keep check upon other, but yeah, being a democracy, we do need that.
Yes, we can most certainly take note of the US system of impeachment. But again, it will be more like a legislative act, which we are trying to escape from, at least as of now.
I think this might help. We shall continue the discussion.
Thanks for showing interest, it was a pleasure to attend you.

Posted on July 18th, 2010