Who should appoint judges to rid judiciary of black sheep?

What Chief Justice of US Supreme Court John Marshall said two centuries ago applies to the present situation that the Indian judiciary finds itself in. He had said: “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.” Indian judiciary, by and large, enjoyed the “trust, confidence and faith of the common man” for decades. Today, it finds itself mired in accusations. Scams pointing to venality of judges are chipping away the judiciary’s carefully crafted and painstakingly preserved image that once evoked blind public faith in its integrity, impartiality and independence.

In such times, it was natural for a concerned PM not to beat around the bush. In the presence of Chief Justice of India K G Balakrishnan at a recent book release function, he drove home the point that “the time has come for introspection to ensure that judicial appointments at all levels live up to the exacting standards.” The CJI is seen as taking some drastic measures to rid the judiciary of black sheep — recommending impeachment of a High Court judge and allowing CBI to examine two more HC judges. These are at best remedial measures warranted by the situation to assure the public not to lose faith.

To address the ‘black sheep’ problem and stop their breeding, the time has come to test the efficacy of the existing mechanism for appointment of judges to the HCs and the Supreme Court. For, it is a matter of pride and respect of an institution in which a billion people repose faith. If one wants to fault the 1993 apex court judgment in SCORA Vs UOI [1993 (4) SCC 441] conferring primacy on the judges collegium headed by CJI to appoint judges to the HCs and the SC, then he can cite examples of Shamit Mukherjee, Soumitra Sen and many others.

Majority of these tainted judges resigned when the collegium headed by the CJI threatened to recommend their impeachment after the in-house inquiry process found them guilty. Prior to 1993, when the executive had the major say in judges’ appointment, judges did resign. Who can forget the resignation of Justice H R Khanna immediately after being superseded by a junior judge for the post of CJI. He was being punished by the executive for refusing to be pliant and penning the lone dissenting judgment, invalidating the brutal Emergency powers.

Justice Khanna was not the only victim of the executive. Many competent, bold and upright judges were superseded with impunity. Most swallowed the bitter pill and continued, unlike Justice Khanna. And, Justice V Ramaswamy, who was the first to face impeachment proceedings in Parliament, was also appointed at a time when the executive had the final say in judges’ appointment. If the present ‘judicial primacy’ appointment system produced some tainted judges, then we did see ‘executive primacy’ system making some pliant judges occupy and muddy the high constitutional offices.

What the PM said for judiciary — ‘ensuring that appointments live upto the exacting standards’ — holds good for executive and legislature too. Keeping faith in the PM, would it be prudent to revert to the pre-1993 system of judges’ appointment? The MPs are chosen directly by the people, but not the ministers. They are chosen by the PM. But, given the nature of present politics, it becomes his compulsion to accommodate even the tainted in his council of ministers.
Source:- The Times of India 15 September 2008 Delhi P.18
For any query:- legalpoint@aol.in