Even six and a half decades after India became a Republic, a proper system of appointment of judges to the Supreme Court and the high courts has not been brought into being. The controversy created by Press Council of India chairman Justice Markandey Katju that three former chief justices of India were pressured to confirm a corrupt high court judge is a reflection of this failure. The Union law minister’s statement in Parliament that since all the chief justices concerned had retired, the government could do little in this regard has some merit. The incident happened over 10 years ago and the judge on whose behalf a political party had influenced the government is also no more.
Nonetheless, the Modi government has done well to initiate discussions with political parties and jurists on finding a proper system of recruitment. There was a time when the government could choose any of its favourites in the judiciary as judges. There was also a time when the government talked about a committed judiciary and chose chief justices in wanton disregard to seniority. Then came the present system of collegium, whereby the Chief Justice of India plays an important role in the selection of judges. That it is not flawless was proved when a controversial judge was chosen by the collegium without knowing his background, forcing the Chief Justice to transfer him.
Judges once appointed cannot be removed except through a time-consuming impeachment process. They enjoy enormous power, which can be detrimental to the country if it is not exercised properly. This is all the more reason that only persons of unimpeachable integrity, impartiality and ability are appointed to the post. A basic flaw of the collegium system is that it allows judges to choose their own successors. The UPA government tried to introduce a new system by attempting a constitutional amendment but it did not bear fruit. Whatever be the new system, the independence, transparency and accountability of the judiciary should not be compromised. The government should have a say in the selection of judges but the final word should be that of legal luminaries.