Judiciary: A third dimension

A lot of heat and fury had been generated in the passage of the two Bills that aim to replace the collegium system with a National Judicial Appointments Commission. The debate is saturated and built around issues of independence of the judiciary, separation of powers, and a participatory system for the selection of judges. Some also argue for retaining the judiciary’s supremacy while others for wider participation not confined to the judiciary and executive alone but one that includes informed public participation (persons of eminence). Others have argued for referring the two Bills to the Supreme Court which has ruled the petitions as premature.

However, there is another closely related and more fundamental dimension to the debate that has been missing, which the stakeholders are aware of.  This constitutes the ground requirement if the discourse is to be about more effective, efficient and socially sensitive judicial governance. No doubt the selection process is important: Who selects?

How are selections made? Who gets selected? What is the constituency? And what are the attributes shared by those making the selections? These are questions of fundamental importance. Recent debates, and those from the days of the Constituent Assembly proceedings, have remained largely confined to addressing the first couple of these concerns. However, very little has been said about the last one  – a concern as to what attributes, qualities, culture and attitudes does the constituency from which judges are selected share and believe in. This concern is as serious, if not more important, than the others.  

In the Supreme Court, appointments, except rarely, are made from amongst chief justices of high courts or senior puisne court judges from high courts.  In high courts, most appointments (limited numbers are drawn from judicial officers at district level) are made from amongst members of the Bar.  Once perched in the high courts, it is they who constitute the main constituency for appointments to the highest court. Thus, it is the Bar that comprises the source constituency, first for appointments to high courts and then for elevation to the Supreme Court. It is the Bar that forms the heart and soul of judicial appointments – whatever method, collegiums or Commission, is ultimately accepted.  The quality of judges and judicial governance thus directly relate to the quality, calibre, intellectual depth, professional integrity, charter, and commitment to constitutional values that the Bar represents.  Unfortunately, the results of an honest and faithful assessment into these attributes of the members of the Bar by insiders to the system and those in the know, are not very encouraging.  No doubt there are some outstanding legal professionals and legal statesmen on the Bar, but even at the high court levels their numbers are too small to constitute a critical size of the constituency from where quality selections can be made.

Indubitably many good judges have been appointed, but as observed by  knowledgeable senior members of the Bar, a large number of undeserving persons were also selected.

“It is well known that the judiciary is afflicted with mediocrity, inefficiency, lethargy and corruption. The biggest victim has been intellectualism on the Bench. The quality of judgments between 1950 and 1990 and post 1990 certify the same. The judiciary has failed the judiciary,” senior advocate Dushyant Dave wrote. One cannot disagree with these observations especially as these are coming from within the system. If these assessments reflect the judiciary’s health, they do more so about the Bar which makes up the prime constituency for choosing judges to the superior judiciary. Whatever be the methodology, be it the collegium system or the Commission, the concern as to what kind of selections are made thus finally lies with the standing and status of the Bar. How legitimately and credibly can the Bar claim to have nurtured, fostered and promoted a culture amongst the fraternity so as to produce and shape its members who when called to the office of Judgeship, meet the test that Felix Frankfurter prescribed: “A judge should be compounded of faculties that are demanded of a historian, philosopher and the prophet. The last demand upon him – to make some forecast of the consequences of his action – is perhaps the heaviest. To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of imagination. It requires of a creative artist in them; they must have antennae registering feeling and judgment beyond logic, let alone qualitative proof”.

The call is of vision, wisdom, versatility, imagination and legal creativity.  How well the system of selection serves its purpose depends only on how well it chooses the judges of capacity and independence. Here surfaces the final and the most basic dimension missing in the present debate: what are the qualities, standards, perspectives and commitments shared by the constituency on which the selection process hinges – this will neither come from the efforts of the chosen six on the Commission or the collegium.

This will come largely from the Bar itself. The real challenge, as well as opportunity, for the profession lies here. While one cannot easily dismiss the demand from the profession for its representation and participation in the selection process, but it must remember that behind every exercise of power there resides accountability; more so in the case of exercise of public power and much higher in this context as it involves exercise of constitutional power. With no intention to sermonise, it is humbly submitted that the profession can serve its role and responsibility truly only if it enters into serious introspection. It needs to engage in the exercise of vast unlearning while simultaneously engaging in perpetual new learning. There is need to deconstruct some of the tactics and practices the Bar has internalised as a culture of the profession. The Bar has to create and construct more sensitive paradigms of professional discipline, integrity and accountability; and finally adopt more sensitive and forward looking approaches to the causes of the weak, poor, marginalised and needy. How well this plea is taken up will decide the numbers and quality of those who could be the judges. Judges moulded in a manner prescribed by Felix Frankfurter.

The author is Member, Law Commission of India