Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid; make decisions,” said the famous British lawyer David Pannick in his celebrated work Judges (Oxford University Press, 1988). The point, however, is not somehow to make decisions. A society needs fair, just and timely decisions for which an impartial and independent judiciary is a democratic imperative. A committed judiciary is a threat to the constitutional ethos and in the Indian context it demonstrated the darkest era
after Independence.
All is not well with the Indian courts. We have a faulty and opaque system for selection and appointment of judges to the higher judiciary. Lack of judicial accountability has sometimes led to patent arbitrariness in adjudication. Instances of judicial misbehaviour and corruption are not uncommon. The law’s delays are notorious. Litigation becomes the privilege of the rich, especially in societies where socio-economic inequality is the rule. Lawyers are sometimes assessed by the money that they earn, rather than the quality of their work. A new legal plutocracy has emerged in the country. As former SC judge J Chelameswar once put it, mediocracy remains to be a great threat to India’s legal system, when the choice for the Bench and selection of the leaders of the Bar are done based on “impressions rather evaluation”.
The country is now about to choose its lawmakers and rulers. The question during the Lok Sabha election is how far our political parties are able to address the topics of judicial independence and standard of justice. An examination of the poll manifestos reveals interesting contradictions and disturbing deficits. The National Democratic Alliance (NDA) government, by its historic move to introduce the National Judicial Appointment Commission (NJAC), had at least attempted to put an end to the Collegium system in the country, whereby the judges are essentially appointed by judges, by not following a fair procedure. The proposed NJAC, though not adequately representative or participative as it should have been, was a radical step to put an end to the vices of Collegium.
But the 99th Constitutional amendment that aimed at a relatively independent Commission was stalled by the top court by its judgment of 16 October 2015. The legislation was struck down. The verdict does not, however, mean that the Parliament or the political executive at the Centre needs to abandon the reformative agenda forever. There is a need to reconceptualise the Commission, by erasing the possibility for political domination which was perceived as threat to judicial Independence.
Strangely, the BJP’s present manifesto makes only a casual reference to judicial reforms. Ironically, it is silent about the present method of appointment of judges. By way of Chapter 9 clause 7, it says: “We will work towards simplifying procedure laws, encouraging mediation and strengthening judicial and court management system in order to increase accessibility.”
The manifesto of the Congress is richer in details but poorer in terms of credibility. Chapter 29 of its poll manifesto promises a National Judicial Commission (NJC). It says: “The NJC will be comprised of judges, jurists and parliamentarians and will be serviced by a Secretariat. Names of suitable candidates will be placed in the public domain”. Also, it offers to constitute a Judicial Complaints Commission “to investigate complaints of misconduct against judges and recommend suitable action to Parliament”.
The fact of the matter is, the Congress, while in power, could not make any successful legislation to bring in any significant change. It did not thrive for any independent selection committee at all, while its effort by way of the “Judicial Standard and Accountability Bill” passed in Lok Sabha in March 2012 lapsed with the dissolution of the 15th Lok Sabha in 2014.
In Canada, a new system is designed by Prime Minister Justin Trudeau that enabled all qualified persons to apply for judicial posts in the top courts. That ensured equality of opportunity in judicial appointments by way of a fair and transparent process. Equality leads to quality.
At present, the judges of the constitutional courts are predominantly selected from among the advocates. A lawyer’s job is fundamentally different from that of a judge. A change could be worth considering. Article 124(3)(c) of the Constitution contemplates selection of Supreme Court judge from among “distinguished jurists” as well. This provision is yet to find its proper implementation. At the least, instead of selecting lawyers from the same state as judges of the High Court, those from the other states could be a better option. But the method of selection needs to be democratised, by ensuring equality of opportunity.
Juridical reform is no longer a legal issue pertaining to a few lawyers or judges. It is a political issue that concerns the public in the republic and therefore, should find a place in the electoral discourse. The political parties in India need to address the deficits in the legal system more comprehensively with a sense of statesmanship. As put by Justice Warren Burger, “The notion that ordinary people want black robed judges, well-dressed lawyers and fine panelled court rooms as the setting to resolve their disputes is not correct. People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.”
Kaleeswaram Raj
Lawyer practising in the Supreme Court
Email: kaleeswaramraj@gmail.com