In attempt to bring
greater transparency in our judicial system which is one of the most respected
institutions of the country, the proposed Judicial
Appointments Commission, in which judges will be marginally outnumbered, will
make the selection system more transparent and help to assess professional
merit in a better way. The Union
Cabinet has already decided on the composition and draft of the proposed
Judicial Appointments Commission. The
commission will be presided over by the Chief Justice of India, and will
include two Supreme Court judges. The “non-judges” will be the Law Minister,
two eminent persons and the Justice Secretary, who will be the
Member-Secretary. The Leader of the Opposition in either House will be part of
a committee which nominates the eminent persons, the other members being the
Prime Minister and the Chief Justice. Thus, all the organs of the State, as
also the citizenry, will be represented.
The
attempt for more transparency is not however been much appreciated by the Bar
Council and has attracted some sharp reactions. The Chairman of the Bar Council
of India is reported to have said that “we are totally against this National
Judicial Appointment[s] Commission Bill because of the fact that in the process
of appointment of judges, we do not want any interference from any outsider,
including the executive” (PTI report, August 2, 2013). A later press release of
the Bar Council of India (August 10, 2013) says “…. lawyers of the country are
not going to tolerate the replacement of the existing collegiums with the
proposed Commission, without the representation of the Bar Councils and the
(Bar) Associations.” The president of the Supreme Court Bar Association is
reported to have said that “loading the Commission with more members from the
Executive and including fewer members from the judiciary would curtail the
independence of the judiciary” and that “the cure should not be worse than the
disease. The Bar will not agree to transfer the power of appointment to the
executive. The collegium system can be improved by making methods of selection
more transparent” (The Hindu, August 16, 2013).
A
recent Constitution Bench judgment has created consternation. In another of
those “rapid” judgments, a five judge bench of the Supreme Court held that
reservation in super specialities in the faculty of the All India Institute of
Medical Sciences was unconstitutional. The correctness of that judgment is not
the subject of today’s comment, though there is scope for two views on it. What
is disturbing is an observation in the penultimate paragraph that “the very
concept of reservation implies mediocrity.” There is no nuance here, no
qualification, just a bald statement. The judgment is authored by the outgoing
Chief Justice, who was of course under pressure of time. But four other judges
who signed the judgment have not had a problem with the language. This is the
judicial perception of reservation, while applying a 63-year-old Constitution
which has affirmative action written into it. Can we seriously find fault with
a legislator who wants to know what a judge’s constitutional philosophy is?
Another reason which
makes the role of an outsider more important is that manpower planning is not a concept which the judiciary has ever
considered important. Over the years both in pre- and post-collegium days, we
have witnessed the spectacle of Chief Justices of India occupying office for
periods like 41 days in the case of Justice G.B. Pattanaik, approximately one
month in the case of Justices Rajendra Babu and J.C. Shah and as few as 18 days
in the case of Justice K.N. Singh. There has not been a single occasion when a
judge has renounced the high office to make way for a colleague who would have
a longer tenure and would thus serve the institution better. The proposed
commission needs to bring in human resource consultants as well, to ensure that
only those with sufficient tenures will occupy these positions.
Similarly,
High Court Chief Justices have occupied their positions for as little as three
to six months en route to the Supreme Court. Little concern has been shown for
the effect that these short-term appointments have on administration in the
High Courts. Nor has there been too much worry about the quality of
recommendations for judicial appointments by collegiums presided over by such
short-term Chief Justices, who would really have had no occasion to assess the
competence of such persons. There have also been instances where senior judges
have been appointed as High Court Chief Justices for just a few days before
their retirement, so that they do not lose out on the benefits of retiring from
that higher position. While the judiciary has found it perfectly reasonable and
legitimate to mandate a two-year term for Directors General and Inspectors
General of Police (Prakash Singh, 2006), that unfortunately is not sauce for the gander.
For
all sorts of bouquets and brickbats feel free to leave a comment below or mail
me at author.vish94@gmail.com
No comments:
Post a Comment