Retired Supreme Court judge and Press Council of India chairperson Markandey Katju’s allegations of political pressure from the UPA government to extend an additional high court judge’s tenure cannot be dismissed lightly. The timing of his revelations, nearly 10 years later, raises questions of propriety. Further, the judge, who according to Katju had adverse entries in his official record and a secret IB report against him, is not alive anymore to defend himself. But Katju’s claims that  successive Chief Justices of India (CJIs) did not stop the judge’s elevation are distressing. If true, Katju’s claims undermine the major pillar on which the collegium system of judicial appointments rested: safeguarding judicial independence by insulating the government from judges appointments. The other longstanding demand for more transparency in judicial appointments and the setting up of a Judicial Appointments Commission (JAC) comprising both judicial and non-judicial members is also bound to be raised again.

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The collegium system drew its credibility from the Emergency era when senior judges were superceded, high court judges transferred and additional judges not confirmed for not toeing the government’s line.

While the Second Judges Case (1993) instituted the collegium and the Third Judges Case (1998) streamlined the procedure to be followed by the collegium, the subsequent years have seen a number of allegations of corruption, being raised against the higher judiciary. More problematically, these have kicked up complaints of tolerance towards malfeasance, and questions about whether the collegium’s processes for vetting judges’ records is adequately foolproof. But replacing the collegium by the JAC may not be the panacea to these woes as the controversy over senior advocate Gopal Subramaniam’s appointment to the Supreme Court shows. The series of leaks, which could only have emanated from government circles, forced Subramaniam to pull out his name even before the collegium had an opportunity to review the concerns professed in the leaks. If transparency is the yardstick, those in the government should have restrained themselves till the collegium took a stand.

Katju’s revelations of political intervention in a judicial appointment and Subramaniam’s claims in his letter to CJI Lodha that he was politically targeted for diligently pursuing the Sohrabuddin Sheikh fake encounter case show that politicians are yet to master the art of treating important institutions like the judiciary with maturity and responsibility. Too often, attempts have been made to run down institutions — be it the CAG, the Election Commission, Reserve Bank, and the judiciary — when they have taken independent stances, not suited to the political agenda of the day. India has seen the other extreme of shameful political inaction too. After the Supreme Court found Justice V Ramaswami to have committed irregularities and recommended his impeachment, ruling Congress MPs abstained from the impeachment motion, leading to its failure in the Lok Sabha. Not surprisingly, the discourse over the Judicial Appointments Commission Bill has gravitated from judicial accountability towards fears of executive overreach.

Other Supreme Court judges, including Justice JS Verma who wrote the 1993 judgment instituting the collegium, and Justice Ruma Pal, who served on the collegium, have been critical of its functioning and the manner in which past decisions have been taken. Justice Pal pointed out that the secrecy and confidentiality of the process facilitated nepotism, sycophancy and lobbying. She suggested a JAC comprising non-partisan members as the ideal. But would the judiciary or the executive agree to this restructuring?