Take citizens into confidence for judicial appointments

It is a matter of debate whether Justice Markandey Katju has done service or disservice to the club that he belonged to until a few years ago. You may not endorse him, but we are obliged to listen to him on what he says about the opaque nature of judicial appointments, especially to the Apex Court. A few days ago I watched Justice APShah, Chairman, Law Commission and a former Chief Justice of Madras and Delhi High Courts, wax eloquence on the need to review the present system. Not many would know that he himself was a victim of the Collegium process. He spoke with great conviction and I was impressed with his argument that there needs to be a balance between the current and proposed systems. The NDA has a bill cleared by the Select Committee of Parliament last year on the structure of the much talked about National Judicial Commission. The consensus seems to favour a mechanism that would ensure an equal voice both to the Collegium and the Executive. This is expected to defeat any surreptitious move to tilt the procedure to one where the Executive has a disproportionate say. Strengthening the latter’s clout would tantamount to going back to the pre-Collegium days when the Executive made some dubious choices and brought disrepute to the judiciary.

There is fortunately a meeting ground on the subject between the NDA and UPA, whatever be their differences in related matters. Both feel that on occasion they had been done in by a few judges who were arbitrary, biased and brash. They would therefore like to reform the current system so as to ensure creating a certain safeguard in the form of judges appointed purely on their reputation for political neutrality and objectivity in general. 

I have often heard responsible people say that what we need are not brilliant judges but only honest and apolitical men and women in the Bench who may err but who cannot be accused of partisanship or dishonesty. I believe that this is the minimum we can demand in a country as disparate as we are.

There is a view that candidates for judgeship should apply to the Chief Justice of India to express their interest in the job. This is what happens in a few countries. I had once believed that this was not in keeping with the dignity of the position. I am inclined to change my position, especially in the context of moves to enlarge the judiciary, and the sordid happenings reported by Justice Katju. This would give enough time to the mechanism now available to vet the background of prospective judges.  It is an entirely different matter as to who will screen the candidates for their integrity. A mere IB report may not be enough, given that organisation’s limitation in the form of a lack of legal status. If we ultimately get a National Judicial Appointments Commission, it may have to be clothed with investigative powers. This may not be the best of arrangements. In my opinion however that would be an improvement over the present total reliance on an IB report framed initially by an Inspector-level officer and fine-tuned later by those above him.

Next is the question of how the proposed Commission would satisfy itself that they make the right choice. There is no alternative to a publication of names of applicants so that anything that the latter have suppressed comes out in the open much before their cases come up to the Commission’s members. We may not yet be ready for the kind of Senate inquisition that takes place in the US. As a first step however we need to take the citizen into confidence and let him tell the Commission, if he cares to, of what he considers the negative qualities of an applicant that would make him unsuited to be a judge. I quite understand that a lot of dirty linen will be washed in public. We have to build enough safeguards against blackmail and slander so that no one brings up vague allegations just to settle a personal score. In the absence of a say for the citizen, there will still be a lacuna in the process that would facilitate the wrong person getting into the sanctum sanctorum that the higher judiciary is meant to be. In the ultimate analysis no process for appointing judges is perfect, that too in as hugely complex and socially divided a country as ours. We have to settle for what is practical and what would even marginally enhance the image of the judiciary.

The writer is a former CBI Director