Can the judiciary keep functioning as a closed entity?

A 2016 report found that 11 out of the 28 SC judges belonged to families of judges or legal stalwarts, pointing to the existence of nepotism in the judiciary. A recent data also shows that the caste bias is real as 79% of 537 HC judges appointed in 2018-22 belonged to forward communities.

"Justice must not only be done but must also be seen to be done" is an aphorism that is often associated with the Indian judiciary. However, the irony of this is not lost on anyone when the fact that over 4.7 crore cases are pending in courts across all levels are taken into consideration.

It makes one question whether an institution that has its basic duty to protect the rights of citizens is doing its job in the most effective way? Here, instead of addressing what is arguably the most important issue that the country is faced with, the two most important pillars of Indian democracy seem to be at loggerheads on the question of how relevant is the collegium system.

What is interesting in the tug-of-war that is being played out publicly is that ultimately it is the citizens who are at the receiving end. The long-term consequences of what such an open disagreement can do to a democracy are being overlooked. It also brings forth the question of whether an institution can remain above criticism and ignore the opinion of the citizens, whose interests all the pillars of a democracy have a duty to serve.

The present collegium system was introduced in 1993 based on the judgment in the Supreme Court Advocates on Record Association versus Union of India case. According to this, the power vests with the senior judges of the Supreme Court to recommend names of judges for the apex courts, as well as High Courts and the government, is expected to accept the decisions made.

When the Narendra Modi-led government came to power in 2014, efforts were made to replace this system with the National Judicial Appointments Commission (NJAC). But in 2015, the Supreme Court struck down this decision citing that it is unconstitutional. Ever since that, there have been debates in both the legislative and judicial circles on who is right and what the future should be. This discussion once again gained steam when Vice-President Jagdeep Dhankhar and Union Minister for Law and Justice Kiren Rijiju expressed their displeasure with the collegium system.

It is an irrefutable fact that all three pillars of democracy - legislative, executive and judiciary - will function only if they are independent of each other. It ensures that there is balance and harmony in society. But it can prove to be dangerous if one pillar feels that it has the right to interfere in the decisions of the other and the other pillar feels that it is above any criticism. This is exactly what is happening in India and it is the feeling of being above even suggestive criticism that can prove truly detrimental to a nation. An institution that is meant to ensure justice in a society cannot simply afford to look the other way and ignore the needs and aspirations of the general public.

Over the years, the greed of many of those involved in the legal profession led to lawyers charging high fees and making it almost impossible for even those in the middle class to afford legal services in India. Even though the provision of free legal aid exists in criminal cases, a 2018 study by the Commonwealth Human Rights Initiative found that India has only five legal aid lawyers per 1,00,000 population. This essentially means that the marginalised do not have access to quality legal services.

And it is not just the lawyers who are to be blamed for artificially hiking the legal fees but in many instances, retired judges of the Supreme Court and High Courts have also played a role. The exorbitant amount that they charge as fees during arbitration proceedings is perhaps a reflection of how the legal profession is increasingly turning into a business and utterly failing to service the very people whom it was established for. Though the Supreme Court ruled last year that arbitrators cannot unilaterally fix their fees, the burden on small companies to pay this amount is still humongous.

It also needs to be noted that the courts of this country including the apex court do not function for nearly 100 days a year. Those in the legal profession would say that such long holidays are required as this is a rigorous profession that requires long hours to be put in by everyone involved. But these practices are seldom questioned in the country as there is a belief that the judiciary is insulated from all aspersions that can ever be cast upon it.

In this scenario, the reopening of the debate on the collegium system is a welcome change. It tries to make the judiciary accountable and transparent. There is now a rising consensus that the judicial system cannot be a caucus that is not open to questions or suggestions. There is an inherent bias in the judges recommending names in the absence of any clear guidelines.

A 2016 report by Outlook found that 11 out of the 28 Supreme Court judges belonged to families of judges or legal stalwarts, pointing to the existence of nepotism in the judiciary. In addition to this, Dalit and Adivasi activists have been arguing for long that judges from marginalised communities remain underrepresented in the judiciary. The data released by the Union government also proves that the bias is real. Out of 537 High Court judges appointed between 2018-'22, 79% belonged to forward communities.

It is evident that for a lawyer who has come up on his/her own with no backing, the highest positions in the Indian judiciary can remain out of bounds. If India has to honour its democratic credentials, it is important for this particular pillar to introspect and be ready to view the issues afflicting it with an open mind.

True representation in the judiciary can come only if it opens its doors to changes. The judges will have to be selected through a transparent process. The court showed its willingness to change when it decided to call for applications for the designation of senior advocates. A similar process should be followed in the cases of judges' appointments too.

Applications should be called for in an unbiased manner and the two pillars of democracy that are currently not on the same page should work in tandem to select the list of individuals. This should be published on the official site along with the reasons why each individual qualified to be on the final list. This list can also be taken up for discussion in Parliament.

This way, it makes the process transparent and also makes civil society a part of its decision-making process. In the end, all the pillars of democracy should remember that they exist to serve the people and no institution can function in an isolated manner. The Indian judiciary has a long and difficult task cut out for it to become truly representative and accessible for all.

(Lekshmi Parameswaran is a researcher and writer based in New Delhi. Her twitter profile is @lekshmip.)

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of OneIndia and OneIndia does not assume any responsibility or liability for the same.