As the judiciary is a major pillar that ensures proper enforcement of laws in any country and also safeguards the fundamental rights of its citizens, the success of any democracy is directly dependent on the robustness of the shoulders of its judicial system. Even the power, independence and effectiveness of the other three pillars of a democracy – namely the legislature, the executive and the media – depend on the uprightness, independence and impartiality of its judicial system.
However, if one takes into account the recent public utterances of Justice Markandey Katju about the distortions in appointing judges and the political pressures that often come into play, then it appears that the legislature and the executive have hijacked the judiciary in our country. Furthermore, anyone who has had any experience of the Indian courts is fully aware that our judicial system is beset with many flaws that need to be addressed on a war footing.
The assertions of Justice Katju, who is the current Chairperson of the Press Council of India (PCI), alleging that political pressure during the previous UPA regime had led to elevation of a district judge in Tamil Nadu to an additional judge of the Madras High Court despite charges of corruption against him, have not been the only instance that has damaged the reputation of the prevailing system of selection of High Court and Supreme Court judges.
Who can forget the case of Justice Hans Raj Khanna, a legendary Judge of the Supreme Court of India during 1967-77? He was prevented in January 1977 from being appointed as the Chief Justice of India (CJI) by the then Prime Minister Indira Gandhi owing to the fact that he was honest enough to give a dissenting judgment, against the then Union government, on the right to life and liberty during the internal emergency. Instead, his junior, Justice MH Beg was appointed as the CJI. Though Justice H R Khanna’s dissent cost him the job of CJI, he became immortal in the annals of Indian history, as also amongst the legal fraternity.
Justice H R Khanna’s dissenting opinion against the government stating that the Indian Constitution did not permit the right to life and liberty to be subject to any kind of executive decree, is widely regarded as a landmark judgment in Indian democracy. Since then our entire country, including the political leaders, the social activists and even the common man, have been aspiring for an arrangement that could permanently abolish all kinds of political meddling in the judiciary. To achieve this objective and to eliminate political interference in judicial appointments and end the practice of judges being appointed by the government, the existing collegium system was started.
Under the collegium system, which was implemented following a judgment of the apex court in 1993, judges appoint judges to the High Courts and the Supreme Court. Though the said collegium system was supposed to insulate the judiciary from the influence and pressure of the legislature and executive, the recent assertions of Justice Katju reveal it has not happened as expected.
There is a general perception that the collegium system has not performed well and should be radically changed. Some of the worrying concerns relate to appointment of unsuitable candidates, selections based on favouritism and influential connections as well as personal likes and dislikes. Furthermore, the present appointment process adopted by the collegium of judges is plagued with problems of opacity and non-accountability.
In view of the aforesaid flaws and with the aim of eliminating the culture of secrecy and nepotism that envelops the current process of selection of judges by the collegium, the BJP-led NDA government is contemplating to bring in the Judicial Appointments Commission Bill (JACB) providing for the constitution of a National Judicial Commission (NJC) for appointment of judges to the High Courts and the Supreme Court. The NJC will seek to replace the present collegium system with the aim of establishing judicial accountability, upholding the independence and impartiality of the judiciary as well as checking corruption in our judicial system. Thus, the JACB is expected to dilute the lingering bad faith and tug-of-war between the government and the judiciary.
The proposed NJC will be a statutory commission consisting of the Chief Justice of India, the Union Law Minister, two senior-most judges of the Supreme Court and two “eminent” persons who would be selected for a non-renewable tenure of three years by a collegium of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the CJI. The proposed bill, currently awaiting approval from the Rajya Sabha, will take away the power to transfer High Court judges from the government, and vest that power with the NJC, thereby ensuring total freedom to the judiciary from political interference and political domination.
Over and above bringing in transparency and openness in the appointments of the High Court and Supreme Court judges, the proposed Judicial Appointments Commission Bill should also strive to ensure total freedom from political interference and political domination. It should also address concerns with regard to the nomination of retired judges as the heads of various Tribunals and Commissions. The bill should also accord comprehensive freedom to the National Judicial Commission so as to ensure that only eminent, worthy, impartial and incorruptible judges with impeccable track record are selected for appointments in top positions of the Indian judiciary.