Former Supreme Court Judge, Markendya Katju’s recent revelations about corruption in higher judiciary has once again indicated towards the growing rot in Indian judiciary marked by huge arrears of pending cases; inordinate delays in final disposal of cases; costly procedures and blind adherence thereto, which has simultaneously rendered the profession of advocates as one of the greatest money-spinning vocations with virtually no accountability whatsoever towards the fleeced and harassed clients and has stifled access of common man to justice; glaring, if not alarming, variance in the competence and honesty of judges; controversies about appointment and transfers of judges of superior courts; ever-widening and growing tentacles of corruption in the judicial system; etc. These ailments cry hoarse suggesting that the entire edifice of Indian judicial system is motheaten and its sudden crash imminent.
Surprisingly, however, while the judiciary is increasingly encroaching upon the executive and legislative domains in the name of promoting public interest, it has hardly shown any inclination to address the maladies afflicting the state of justice in India today. On the contrary, the judiciary often uses (misuses) it powers concerning the contempt of courts to silence any enlightened criticism of its working. To cap it all, the Supreme Court in what is known as the “second judges case” (1993), virtually re-wrote the Constitution by equating “in consultation with” to concurrence of” through its interpretation of Article 124(2) and thereby secured to itself the last word. It solidified this constitutional coup by vesting this power with its senior most judges, thus creating the collegiums, which has held centre stage in controlling appointments to the higher judiciary viz the Supreme Court and High Courts. For 21 years the head of the Indian judiciary have enjoyed the power which is unparalleled the world over – that of having the first and last word in determining who joins its ranks.
Collegium system operates ad hoc, based on no principle While in the opinion of the judges and a succession of chief justices of India, including the present Chief Justice of India, R M Lodha, this system of appointment by a collegium of the five senior-most judges (like that of the three that went before) has not failed, it has few supporters today. Jurists, retired judges, Bar leaders, political commentators and of course politicians criticise it for being opaque, secretive and not institutionalised: no mechanism is prescribed (by the collegium itself), no office is set up, no data gathered in advance, no criteria evolved as to who among the high court judges — all aspirants to a place in the Supreme Court — should be recommended. There is no reason given as to why a broad consensus among all the justices of the Supreme Court is not to be preferred to the views only of the five senior-most. The entire system operates ad hoc, based on no principle. And the choice of judges to be recommended has varied in quality with the collegium’s fastchanging composition leading to cases of promoting unsuitable appointments and blocking deserving ones.
The Modi government has therefore got down to business pretty quickly inserting itself into the appointment of judges to the Supreme Court and the High Courts. The Lok Sabha passed the National Judicial Appointments Commission (NJAC) Bill, 2014, by voice vote and the accompanying 99th Constitution Amendment Bill by 367 votes to nil. The first Bill lays out procedures for appointing and transferring judges to the Supreme Court and high courts while the second stipulates its membership and provides it constitutional protection. Subsequently the Rajya Sabha also passed the Bills by similar overwhelming margins.
The commission consists of the Chief Justice of India, his two senior most colleagues, the Law Minister and two eminent persons. The persons last mentioned are to be chosen by the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha. The commission is to recommend persons for appointment as Chief Justice and other judges of the Supreme Court and the High Courts. This bill thus breaks the present collegium system and dramatically revises the way judges will be appointed.
While piloting the bill in Parliament, the government rightly displayed accommodative approach by accepting the amendment proposed by Congress. The original legislation stated that if the President of India rejected a candidate sent for his approval by the committee, then all six members of the committee would have to unanimously endorse the judge for him to make the grade. Congress pointed out, rightly, that this will open up a way for the government to rig the system. If it didn’t approve of a particular candidate the President could reject him and then the Law Minister veto him. The government could go on casting its veto till it got a desirable candidate.
The government which believes in running the government through consensus rather than majority dropped this “unanimous” provision to assuage this concern. The Modi government has thus taken the much awaited step in the direction of reforming process of appointment to higher judiciary.
Appoint a fulltime Search Committee to aid NJAC
However, the government will have to consider the question as to whether the six members of the commission will have enough time and resources to scrutinise the credentials of so many candidates. This issue is important because these judges deal with questions of life and death, public policy issues of vast import, corporate and property matters, matrimonial and custody claims. They have more powers than heads of corporations and bureaucracies. Hence, these judges must be selected through a proper selection process which mandates that every prospective appointee must be carefully evaluated — for ability, merit and above all, integrity. The names should be disclosed and complaints and objections looked into and evaluated. Considering therefore the workloads of the members of the commission, it appears difficult that they will be able to devote adequate time for selecting the members of the higher judiciary who number close to 950, with over 200 vacancies, and an annual entry of about 100. For, three judicial members of the commission carry tremendous judicial workloads, the Law Minister runs a large ministry, and the eminent persons too will have important activities from which they gained their eminence.
It is therefore necessary that the commission must be backed up by a full-time search committee, composed primarily of retired judges along with other reputed members who will bring the time, the care and the circumspection to this task. In other countries, there are exacting methods to discard and choose candidates. The United States has the Judiciary Committee of the Senate comprising 18 members; it has the resources to unearth and examine every aspect of the candidate’s record.
The United Kingdom has its Judicial Appointments Commission that comprises 15 judicial and lay members, with a staff of 70. The permanent Search Committee proposed here to aid the National Judicial Appointments Commission has to function in a transparent way, involve the Bar and other stakeholders, and then present its evaluation to the commission. And crucially, this record of facts, investigation, examination of complaints and findings must become public knowledge. The NJAC would do well to study the workings of Judicial Performance Evaluation Programmes in several states in the US and establish well-defined criteria to assess potential adjudicative ability. The Bill has the necessary preamble of transparency, participation and accountability in its Statement of Reasons; creating such a Search Committee is the way to translate platitude to performance.
Streamline the criminal justice system and clear the backlog of pending cases
Another area regarding judicial reform that needs attention of the Modi government is increasing workload of pending cases. As the present Chief Justice of India, Justice R M Lodha, observed on August 15, 2014, trials in two lakh cases are pending since five years and over 40,000 cases are lingering since ten years. He said that as a consequence, in central prisons 50 percent of the inmates are under trial prisoners and in district jails the figure is 72 percent. One of the important reasons for this inordinate delay in disposal of cases, according to him, is not filling of vacancies in courts. He said from the Chief Justice of India to the last muffasil court in the country, there are 20,000 judicial positions, of which the Supreme Court collegium is mandated to pick judges for 960 positions in high courts and 31 in the apex court. The state governments have to fill 19,000 positions in subordinate judiciary.
Accordingly, the Union Law Minister, the Judiciary and the state governments must work hard to fill up these vacancies to expedite disposal of pending cases. Justice Lodha also observed and rightly so that investigation, collecting evidence and prosecution is not the job of judiciary. We can add that the Union and state governments must implement long pending recommendation regarding policy reform as well as provide adequate infra structure, and facilities to courts to streamline the criminal justice system in the country.
What however Justice Lodha and most of colleagues ignore that a well intended and innovative Public Interest Litigation device has been allowed to degenerate into “political interest litigation” device. As the saying goes, “excess of everything is bad,” now judiciary is going to the other extreme of readily interfering in matters largely relating to the administrative aspects of society. While the judiciary has no time to consider its own reform and very little time to perform its basic duty of settling disputes between individuals and institutions—victims of grave injustice going to approach Delhibased courts from faraway places like Pondicherry, for instance, do not get even five minutes to put forth their arguments due to truck load of pending cases— the judiciary has enough time to encroach upon the public domain, which legitimately belongs to the Government. But while encroaching upon the legislative and executive domain, the judiciary forgets that in a democratic system like India, if the government were to fail to act in such matters, it is for the people to take up the issues in various methods, so as to force the government to act in the matter. In a number of subjects where judiciary has interfered in recent times, it is seen that no legal disputes have been involved. Now when the Modi government is tirelessly working for improvement of life of the common people, it is hoped, the judiciary will get less chance and legitimacy to interfere in the executive domain.
Time to reform the law of contempt
The Modi government will also have to devote attention towards reforming the law of contempt to ensure accountability of and transparency in the judicial system. While the constant evaluation of the functioning of judiciary is a must to maintain the popular confidence in this vital institution, which requires that the actions of judges are transparent and legally sound, but the greatest obstacle in ensuring transparency and accountability of judicial conduct is the continuation of a colonial and highly undemocratic law concerning the contempt of court. For a long time now, the power of the courts to punish for contempt in India has deterred free and frank debate and comment on the state of the judicial system. All the copies of a Delhi-based magazine, for example, were ceased and the editor of the magazine was forced to offer an unconditional apology, on the order of a Delhi court (in 2001) for publishing the ranking of judges of that court on the basis of interviews conducted with the lawyers working there. The courts claim that in the interests of administration of justice it is necessary to penalise those who wilfully scandalize judiciary and lower its image among the public. But in reality, every time that the court punishes anyone for “scandalising the court,” that act does not enhance the dignity or the reputation of the court. On the contrary, almost always, it has the opposite effect of making people believe that the court has much to hide. This gives the public a feeling that the institution is staffed with persons of authoritarian tradition. Hence, Justice V. R. Krishna Iyer, observed that contempt law violates the freedom of speech and expression guaranteed to the Indian people by Article 19 (1) of the Constitution, which has also been recognised by Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights ratified by India in 1977.
The law of contempt must, therefore, be modified on the pattern of American system to enable the press to report the judicial misbehaviour. Judges must draw respect through their impartiality and competence and not with the help of any special provision as other public functionaries like civil servants, police and military officers, and university teachers are expected to do. After all, they too perform public functions, and it is equally important for their efficacy that public confidence in them should also be preserved. But then it has been recognised in their case that being human beings, they can err and also be corrupted, therefore the best safeguard against their degeneration is their accountability to the people for which it is essential that people should have the right to feely criticise them. The same applies to the judges and parliamentarians. There is nothing special about the judiciary that warrant a law that provides that even a citizen having sufficient proof of a judge’s corrupt and biased conduct and who is willing to face action for civil and criminal defamation cannot accuse them of dishonesty until he is also able to satisfy the judges that he has criticised a judge for promoting national interest. Why is defamation, which is actionable in both civil and criminal proceedings, not an adequate safeguard to protect the reputation of judges and courts? Now when right-thinking judges such as Lord Atkins, Justice Iyer, Justice Mukherji, Justice Khanna, Justice J S Verma and Justice Annoussamy, and other like them, are fast dwindling, it is high time for the Government to seriously re-consider re-writing of the existing colonial and undemocratic law on contempt.
Indeed, if these challenges are not recognised immediately and if far-reaching judicial reforms are not initiated with a great sense of urgency and devotion, the judiciary may also fall in public esteem endangering the whole civil society with dangerous consequences for the public good.