Independence has become an omnibus defence against any criticism of the judiciary. From appointment of judges to complaints against them, all information is blocked by it invoking the independence principle. We are expected to trust our judges on the belief that they have a superior understanding of the reality and human affairs untainted by human frailties unlike all other public servants.
Political executives are elected and superior civil servants are appointed through Public Service Commissions. Both the processes are open. Transparency in public appointments lends legitimacy to the selected individual. The Right to Information Act has conferred on the citizens the right to know about such decisions. The Supreme Court has stayed a CIC decision of 2009-10 for disclosure of the proceedings of the Collegium for the last six years and the matter has been referred to a Constitutional Bench. The main defence against disclosure is that it would adversely affect the independence of judiciary by placing facts about the candidates under consideration in the public domain.
The RTI Act ordinarily exempts personal information from disclosure; therefore, there is no fear that any such information about the candidates would come out and embarrass anyone. All that would be disclosed is the process followed and why one was selected over the other.
An argument has been offered by some votaries of non-disclosure is that if the reason for the supersession of a High Court Chief Justice for elevation to the Supreme Court is made public, his continuance in the post would become untenable. This is a specious argument. The supersession itself is a loud message to the public about what the apex court thinks about the competence, credibility and, sometimes, even the integrity of the Chief Justice concerned.
Integrity is considered the highest value of public servants. For them, elaborate mechanisms and procedures exist, many by the orders of the judiciary itself, to ensure high levels of integrity and strong punishment for misconduct and corruption.
But as for the higher judiciary, there is no information available in the public domain about the mechanism, procedure or the outcome of any such inquiry. The citizens must accept that all incumbents are of high integrity and have done no wrong in discharging their duties even if it strains their credulity.
Finally, we come to consider if the independence has ensured greater levels of competence in the incumbents. The competence of the political executives is evaluated by the citizens through periodic elections and of those in the civil services, through annual performance appraisal systems and made the basis for career progression and, sometimes, even for removal from service.
One cannot say for certain if long pendency of cases, even in superior courts, has anything to do with the competence of the judges; nor could one say much about the quality of judgements for it is the legal community which alone can enlighten us how the judges perform. Since for the judges of the High Courts and the Supreme Court, the term of appointment is fixed, competence or absence of it is immaterial.
Thus, none of the four cardinal values which enrich the institution of judiciary are ensured by the way the need for independence is being articulated. Prof Upendra Baxi has claimed in some of his recent essays that the judiciary increasingly co-governs India along with the executive and the legislature. Governance is a role which no one had ever thought the judiciary would assume even in partnership with the remaining two organs of the State.
Power to govern without any institutionalised accountability is totally incompatible with the democratic ethos. It is no satisfaction to the citizens that the judiciary is accountable to the Constitution, because in the final analysis, it is only a book which is paraphrased and interpreted by the same judiciary. When judges appoint themselves and enquire into any allegations against themselves without allowing the citizens to know how they go about it, it gives a very uncomfortable feeling.