Should executive have role in hiring judges?

Contributed by Dhananjay Mahapatra

The foul smell of corruption is increasingly enveloping the temples of justice, popularly referred to as courts. Almost everyone is aware of the level of corruption in the lower stream of justice. But, the screamers about instances of corruption in the higher judiciary appear to have forced the government and the CJI to look afresh for an effective antidote.

The common refrain is that there is something virulently wrong with the present process of selection of judges for the higher judiciary — the high courts and the Supreme Court. For long, the Executive had this grouse that India was the only country where judges appoint their peers through a secretive method called consultation among the judges forming part of the Collegium headed by the Chief Justice of India.

Recently, on February 27, a day after the last session of the 14th Lok Sabha, renowned lawyer, parliamentarian and then Speaker Somnath Chatterjee articulated the grievance most succinctly — “I still believe that India is unique in three things — a television operated by Parliament, judges appoint judges and MPs fix their own salaries.” A few days earlier, he was more direct: “India is the only country where judges appoint themselves. It is not a good system.”

At that time, the entire political apparatus was virtually bracing up for the Lok Sabha elections and it appeared that Somnathda’s terse words were lost in the poll cacophony. But, it does not appear so. His words actually had a lasting impression on those who matter in the new UPA government.

A thinking is gaining ground among the top echelons of the ruling coalition political leaders that the system of “Judges appointing Judges” has to undergo a change and the Executive must have a definitive say in it rather than performing the role of a mere postman — sending to the President the names recommended by the Collegium headed by CJI for appointment as judges.

What could be the shape of the ‘say’ that the Executive wants to have in the appointment of judges is not precise, but it is definitely tired of playing the role of a postman. The UK experience could be a guiding light.

Before the setting up of the independent Judicial Appointment Committee (JAC) in 2006, the judges were chosen by the a senior member of the Executive through a process that was not only secretive but was roundly criticised as “a tap on the shoulder” method.

The new mechanism for selecting high court judges was to bring an end to the secretive process of picking judges, which the ‘Guardian’ newspaper found responsible for producing a higher judiciary that was almost exclusively white and male (of the 108 HC judges, only 10 were women).

However, initial experience showed that JAC was virtually “old wine in a new bottle”. The ‘Guardian’ in January 2008 wrote a critical piece on the JAC’s method of appointment. It said: “Those appointed since last September are remarkably similar to those selected under the old process. All 10 are white male barristers.”

So, if the UPA government wants, in the wake of disturbing reports about corruption in the judiciary, to effect a systemic change in the process for appointment of judges, then it should put its proposal in open for a debate among the legal fraternity and parliamentarians.

The grievance may be well founded, for in no other country do the judges appoint themselves. But, the solution should not be worse off. To strike a balance, would it be acceptable to both the Judiciary and the Executive to have equal say in the appointment of judges?
Source :- The Times of India 8 June 2009 P 10 Delhi
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