The first round of tussle over the primacy in appointment of judges may have been won by the judiciary, but the executive apparently had the last laugh if their shopping list of qualifications and procedures for appointments is anything to go by.
Was the inclusion of selection of persons of “merit and integrity” as the “primary criteria” in such appointments, merely tongue in cheek or a sharp rebuke to the judiciary that the executive has hitherto noticed a deficiency in that direction?
There was a time when a lawyer who complimented a judge to his peers on the ground that he was “an honest judge” was rebuked with “isn’t that taken for granted?” Since when has honesty become a criteria for judging how good a judge is or has been?
But the executive obviously thinks otherwise. Is it the executive’s way of telling the judiciary that they are worried that the collegium would otherwise elevate judges without integrity?
Equally strange is the inclusion of “merit” as a primary criterion. Does the executive have a genuine concern that the collegium, when elevating judges, does not consider their merit?
A glance over the other items in the executive’s wish list makes equally interesting reading. An introduction of performance appraisal of judges before elevating them as chief justices or to the Supreme Court! Does the executive believe that the collegium has hitherto elevated judges without a concern as to how effective they have been as associate judges of the high court?
The executive also wants the collegium to now evaluate judgments written by judges in the last five years before being elevated as a chief justice or to the Supreme Court? Are members of the collegium to sit and read every judgment of proposed elevatees like high school examiners and give marks thereon to decide on further elevations? Anyone in the profession knows that a good judge quickly comes to be known and respected by his peers and the Bar at large and one falling short of the mark is subjected to criticism. The position, reputation and respect he commands with his peers and the Bar speaks louder than evaluating the judgments rendered in the last few years.
Other recommendations made by the government seem to point in the same direction. Either stating the obvious or requiring objective tests for selection for appointments. Is it an innate suspicion the executive has in the judiciary abrogating to itself the powers of appointment of judges and the system of self-propagation adopted by the judiciary?
The concerns of the executive may have some merit. After all, is there any other institution in any democracy in the world that selects itself, disciplines itself, decides its own jurisdiction, judicially legislates, acts as administrator and super regulator, and takes over executive powers over both governmental departments and private associations, and now even supervises cricket? And yet, does not have to be elected to such office, not answer to the ballot box!
So do we read the recommendations of the executive to really mean that if the judiciary wields such absolute power, then its own house must be kept beyond reproach and corruption, and, therefore, become fully transparent. After all, has not the judiciary declared transparency in state functions not just a virtue but a constitutional mandate?
Will such extreme transparency with the application of the Right to Know doctrine to judicial functionings not give rise to other problems? Of special concern is the recording of reasons as to why a senior judge is overlooked for appointment to the Supreme Court? While at first blush, it may appear reasonable, what would happen to the reputation of such a judge if it becomes publicly known that he has failed in the examination conducted by the collegium, even though the reasons for his disqualifications may emanate from sources of doubtful authenticity with the poor candidate sitting for such examination being given no opportunity to answer? Or will there be a viva voce where he will be interviewed and permitted to explain?
There are certain areas where such transparency may be counter-productive, and selection to the higher Judiciary is one of them. The cure may be worse than the disease.
Perhaps the entire suspicion arises out of the collegium sitting in a haloed ivory tower unfamiliar with ground realities. Take the case of the proposed elevation of P D Dinakaran, which was later excused on the ground of “we did not know!”
If, in fact, the disease is felt to require a regulating of the regulator, then it is perhaps necessary to take a second look at the Constitution of the appointing body.
Sundaram is a senior advocate in the Supreme Court