Judges' appointments: Remedy can't be worse than the disease

New Delhi, Aug 3: The government may have lapped up Justice (retd) Markandey Katju's damning disclosures on the inherent flaws of the collegium system to push for a Judicial Appointments Commission (JAC), but lawyers feel that any alternative that cedes ground to non-judicial people would compromise the independence of the system and hence violate the basic structure of the constitution.

The collegium system, which includes the chief justice of India and four senior-most Supreme Court judges, does have some very fundamental structural defects - one never comes to know when the collegium is meeting, what names are under consideration and the reasons why a particular name was picked and another left out.

All this is enough to condemn the process as closed-door, non-transparent and non-broad-based. Despite these very obvious shortcomings, some lawyers have red-flagged the government's move to push for a JAC.

Senior advocate and former additional solicitor general Bishwajit Bhattacharyya told IANS that the "remedy cannot be worse than the disease". He described the attempts to ram through the JAC as an "orchestrated move" with a "sinister design to weaken the judiciary as it is proving inconvenient for the legislature and the executive".

To press his point he recounted court initiatives in the 2G case and that relating to the allocation of coal blocks, as also a court ruling that elected representatives can't continue in legislatures upon conviction.

The ruling saw political heavyweights such as Lalu Prasad and Rashid Masood losing their seats in parliament.

Since the collegium system came into being in 1993, the court has intervened in the Jain hawala case, the Gujarat riots cases and disproportionate assets of political leaders, taken away the shield of government "sanction" for proceeding against corrupt bureaucrats and exposed the corporate-political-bureaucratic nexus, Bhattacharya added.

Now, the court was trying to free the "caged parrot" - the CBI - from "speaking the voice of its multiple masters". All this, he said, was proving politically inconvenient to the ruling class.

The collegium should be allowed to take corrective steps and its apparent shortcomings cannot be allowed to be exploited to permit the backdoor entry of the political class to tinker with the independence of the judiciary, he said.

"There are others who say the holes in the collegium system can be easily plugged. What is needed is transparency," eminent jurist Rajiv Dhavan told IANS.

"Once transparency is there, then even the collegium system is okay. Transparency will make judges accountable," Dhawan added.

Additional fortification could come in the form of an insistence that all decisions should be justified in writing with the reasons for which they had been taken. Any switch to a JAC, he pointed out, would require a constitutional amendment to overcome the collegium system institutionalised by the top court in 1993.

A former top court judge and former member of the collegium felt that with some correctives, the existing system can remain. Citing a bird eye's view from the top court's perspective, the judge said he apprehended a "corporate assault" on the judiciary through the broad-based JAC that is being touted as a substitute for the collegium.

Expressing his "grave reservation" over the government move, senior counsel Shekhar Naphade pointed out that there was no guarantee that any other system would work better. He cited the "same social stock theory of human resource" to back his claim.

"Ultimately it is a question of moral standards in public life. People in the government and judges come from the same social stock and there is a serious crisis of character afflicting society," Naphade told IANS, suggesting the collegium system be relooked.

"Statutory provisions or a legal regime can help the process of transparency. But such help is of limited nature. Ultimately it is the character of the people who man the relevant institutions that is determining the falter," he added.

Naphade recalled B.R. Ambedkar's prophetic words in the Constituent Assembly to this effect. "If good people form the government, even a bad constitution can work and if something is wrong with the people in the government, even a good constitution can't work."

Activist-lawyer Prashant Bhushan, however, backed the switch to the new mechanism for selecting judges.

The proposed JAC, he said, should have retired judges and eminent people who will evaluate and shortlist names for appointment as judges to high courts and elevation to the apex court and then put them in public domain for a public response on all facets of their personality.

The names, he said, should only be finalised after evaluating the public response to their candidature, a process akin to the US Senate debating the presidential nominees to the US Supreme Court.

Bhattacharya, however, felt that even if the government were to succeed in pushing through the JAC, it may not stand court scrutiny as it would amount to executive tinkering with the independence of the judiciary which is part of the basic structure of the Constitution.

The battle ahead may be a long one, lawyers said. But the process of appointing judges is a very small part of the debate, some said. Accountability issues have also to be addressed. Under the current system, a judge can only be impeached or transferred elsewhere for any other misdemeanor.

The Justice Katju debate, lawyers pointed out, is also being used to project a one-sided picture of the ills that plague the judiciary. It is not as if the judges alone are responsible for what ails the judiciary - there's the backlog, the long delays in dispensing justice, vacancies and lack of judicial infrastructure, including trained man-power.

The executive, some lawyers said, has deliberately held up funds to hasten the process as it is wary of being caught in a problem of its own making. Faster disposal of cases will keep tainted politicians out of the political system, reason enough to dole out measly budgets to the judiciary, they said.

The people, they said, may be frustrated with the backlog of 30 million that cause long delays. But will they want a supine judiciary that can't protect their civil liberties against state and executive encroachment?

IANS