While “democracy” is now hailed as part of “basic structure” of the Indian Constitution, the Judiciary is the only non-democratic wing of government. Framers of our basic law did not want justice dispensation hostage to populist considerations. Also, they felt that such variance was essential to preserve the “independence” of a judiciary tasked with being the custodian of the Constitution. To ensure a proper constitutional equilibrium, Article 124(1) conferred the power of judicial appointment on the political Executive (ie President) and Article 124(2) vested the power of removal on the legislature (ie Parliament).

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At India’s midnight hour, the Constituent Assembly could not have dreamt of this day when allegations of judicial misconduct are tumbling out of the closet. Having held that they would control their own appointment (by holding in the Judges’ Appointment Case [(1993)4SCC441] that “consultation” of the Court meant binding advice on the Executive) and preside over their own removal (in the Ramaswamy Case [AIR1992SC2219] where the court held that even impeachment by Parliament was subject to judicial review by court), the Court became a super-institution.

In the shaky Nineties and in the first decade of the millennium, a succession of weak coalition governments, rising aspirations of the emerging classes, wanton corruption, inactive state institutions, improving technology and information access and the turmoil of transition drove the people to embrace the Judiciary and judicial activism as a panacea for all that ailed society.

This supremacy had been readily conceded by a weak political Executive and welcomed by the legal fraternity. The hope that this would make judicial appointments merit-based, insulated from politics, was belied very soon. The last two decades have sadly put paid to this experiment. More often than not merit has yielded to the expediency of the collegium (a group of the senior judges of the court entrusted with picking candidates). The bickering and deadlock in the collegium has often left scores of seats unoccupied and deserving candidates excluded.

What has worsened matters is that till date, no criterion for judicial appointments has been clearly spelt out. What were, in the past, only hushed rumours in court corridors are now finding their way to the front pages of national dailies and are sadly the focus of infotainment on television talk shows. The horrifying spectacle of a sitting judge turning up as a litigant in a pending case challenging selection of judges or the sad matter of judges having to obtain pre-publication injunctions clearly point to a tragedy.

I propose a kiss and tell of well-kept secrets, most of which have until now been whispered in court corridors. The most damaging secret is that the legal profession has remained cloistered and oligarchic, and in this the bar is as guilty as the bench.  After five years of law education, a young litigator is often paid less than minimum wages paid to labourers. No wonder, young talent from the national law schools is increasingly drawn to big ticket corporate law firms. There is a perception that children of senior lawyers and many sitting judges are part of a First Citizens’ club — many have raised their voices against the “uncle” phenomenon. Prized placements in offices of top lawyers are easily obtained by wards of judges and senior lawyers — early on, youngsters receive local commissions and other lucrative assignments from courts. Instead of meritocracy such an opaque system encourages palace intrigues and oligarchic tendencies. Urban legend has it that wards of judges were heavily briefed during the parent’s judgeship.

As I have said, presently, the system of appointment is completely opaque. The criteria, the candidates, their respective standing in a merit rank — nothing is officially confirmed, leading to major speculation in the legal fraternity. Selection of candidates with no major legal accomplishments and open alignments with powers-that-be are not entirely unknown.

Several legislations such as a Judicial Standards and Accountability Bill and the Judicial Appointments Commission Bill are on the anvil to spruce up the state of the Judiciary.  While these laws are a definite improvement, some provisions such as gagging the complainant and witnesses and barring the RTI Act are jarring. Also, the proposed new system does not guarantee a broad-based representative system of appointment.

So here are some of my two-bit-proposals:

Establishment of a national judicial service on the lines of the central civil service. The proposed National Judicial Commission should be broad-based with a greater representation to civil society and the consumers of justice.

No automatic promotion on seniority basis to either the high court or the Supreme Court. Many judicial officers, especially in the zone of consideration for an elevation to a higher court, are under tremendous pressure to make the cut.

Putting in place a transfer policy to ensure that the five senior judges of each high court should be from out of state. At present only the Chief Justice is imported but is heavily dependent on the other senior judges who are locals and not totally insulated from the pressures of the bar.

Diversity and merit alone should be the criteria for appointment

Judicial reforms and reforms of the legal practice have to go hand-in-hand. The tragedy is that the importance of this issue as well as the need for a national judicial audit is always reduced to some enlightened sound bites from the law minister or some officious seminar at Vigyan Bhavan. Civil society is the ultimate consumer of legal justice, but rarely will you find that the labourer whose termination case is pending for 20 years or the tribal whose bauxite-rich sacred mountain is up for grabs or the woman in despair whose husband has dragged her to the Supreme Court on a maintenance order of Rs5,000, invited to attend such dos. Their voices are not heard, their pain not shared. Let us be under no illusion that even the vast majority of the legal community stands consulted in these processes. The majority of young lawyers who find it harrowing to work on stipends less than minimum wages, as well as the subordinate judiciary, the first point of contact in this process, have to struggle hard to have their voices heard. It is time that their inputs mattered.

If we appoint good judges, judicial standards and accountability would automatically improve.

The writer is an advocate practising in the Supreme Court and the Delhi High Court