The Indian democracy is based on Montesquieu’s doctrine of separation of power, wherein judiciary is supposed to be custodian of the Constitution. A great deal of importance was given by our Constitution makers to the manner in which the appointment of judges was to be done.
Originally, judges were appointed by the President after consulting the Chief Justice of India. It was in 1993 that the Supreme Court of India delivered a historic judgment and created a system called Collegium, a new feature of our judicial system, which was never envisioned by the Constitution makers. On the basis of this creative interpretation in the guise of independence of the judiciary, today judges are appointing judges in a non transparent manner.
The Attorney General Mr. Rohatgi has called this system as “a closed club or a group of judges who are not allowing fresh air in the appointment.” It is being said that most of the new judges that are appointed come from or because of the recommendations of top 200 families, which mostly consist of judges and senior advocates. As per a research paper filed before the Supreme Court, out of all the judges appointed by Collegium in 15 High Courts, a record 52% of them had been wards of judges and senior advocates. Moreover, it is also being claimed that 72 such persons are under consideration in the new appointments being made.
Former Chief Justice R. S. Pathak held that the administration of justice drew its legal sanction from the Constitution and its credibility rested on the faith of the people. Seeing the rising number of complaints of nepotism, the government enacted the NJAC Act in 2014 which was stuck down by the five judges bench and revived the collegium system. But the Constitutional Bench also accepted flaws in the collegium system and emphasised the need for Glasnost (openness and transparency) and Perestroika (restructuring). Subsequently, by 5th November, the Supreme Court asked the public to suggest changes that should be made to the Collegium. While the act of taking suggestions is indeed a welcome step, the big question is whether it will be able to bring any Perestroika through such reforms or will it remain an exercise of superficial changes.
With the matter of judicial appointments now under the public microscope, it is time that the manner of judicial appointments are opened to people across the country on the sole criteria of merit with the mandatory disclosure affidavit mechanism, because as Mahatma Gandhi said, “Truth never damages a cause that is just.”
Due to this syndication of senior advocates, Justice Krishna Iyer once said that the higher judiciary and the Supreme Court in particular, are beyond the reach of the ordinary man. Top judges admit that India’s justice system is a ‘tragedy’ as common citizens are ignored in favour of high-profile cases. The most glaring example of this is bail to Salman Khan and the subsequent acquittal of Jayalalithaa in her Disproportionate Assets case. Going further, the malaise of pendency has perhaps reached levels to which both the legislature and judiciary are seeking help from heaven. As on date, there exists more than 3.5 crore cases pending in India, a figure so big, that it will take another 150 years to clear all the cases, only if no new cases are filed.
While poor conviction rate has a deterrent effect on the justice delivery system of a country and forces it to introspect to prevent a ruinous impact on innocent lives. 2.5 lacs poor and illiterate under trials are languishing in jails. Sadly, two of three people incarcerated in India have not been convicted of any crime since they cannot afford senior advocates.
But the Indian Courts did manage to achieve one thing, i.e. the booming voice of senior advocates. In simple words, an advocate who has been appointed as a senior advocate by the Court, following a criterion that is itself vague, opaque and can be challenged and scrutinised.
The Supreme Court and High Courts, though high constitutional offices, are still in the realm of public employment, to which every person eligible ought to be given an opportunity to occupy, he being selected through a transparent, just, fair and non-arbitrary system. This can be possible through a Mandatory Disclosure Affidavit; a document which is similar to the affidavits submitted by politicians to the Election Commission and has managed to prevent acts of corruption and strong check on MPs and MLAs. Then why a person being appointed as a Judge should not give this Mandatory Disclosure Affidavit at the time of preliminary acceptance of his appointment. If Collegium member is related to prospective judge, then he will have to recuse from appointment procedure.
The Mandatory Disclosure Affidavit is in fact a document that takes on oath, the record of personal details of the person who is to be appointed as a judge. It also takes a declaration of free and fair appointment and hence asks the person to be appointed as a judge to disclose his/ her relations with persons who may influence the selection of judges and finally, the person to be appointed has to certify his integrity and honesty in the Mandatory Disclosure Affidavit. However, after the appointment of a person as a High Court judge has been made, if something in the affidavit has been found to be incorrect, such a person should be immediately removed, without going into the process of impeachment.
While the issue of stare decisis will be battled out in Court, the people of India demand changes which may repose their faith in a judiciary that is truly independent, honest, and transparent forum of justice. As former Chief Justice P N Bhagwati said that the concept of the “independence of the judiciary” was not limited only to the independence from executive pressure, but it was a much wider concept, which took within its sweep, independence from many other pressures and prejudices. It had many dimensions; namely, fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the classes to which the judges belong.
With the matter of judicial appointments now under the public microscope, it is time that the manner of judicial appointments are opened to people across the country on the sole criteria of merit with the mandatory disclosure affidavit mechanism, because as Mahatma Gandhi said, “Truth never damages a cause that is just.”
