Appointments to higher judiciary have been controversial for sometime now, but thanks to recent revelations by a retired apex court judge, Markendey Katju, the matter has become most urgent. It is clear that the present system of appointments by the Supreme Court collegiums, consisting of the Chief Justice of India and four other senior-most judges, has not worked well. Both on grounds of transparency and merit, a number of appointments have been questioned by members of the bar. Justice Katju may have invited awkward questions regarding the timing of his disclosure about an allegedly corrupt additional judge of a High Court being confirmed in that post, but his facts had not been disputed. The said judge had the support of the DMK, which at the time was a key ally of the ruling UPA Government. And despite the presence of strong evidence on record about his corrupt activities, the SC collegium had caved under the pressure of the executive. Indeed, this was not the only questionable appointment made by the five-member apex court collegium. From time to time, quite a few were called into question by independent members of the legal fraternity. In short, the collegium system has become a sort of closed-door club, where each member ended up pushing the appointment of his or her favourites, often at the cost of merit. That this system was devised to replace the equally baneful method of the executive dominating the appointment process of High Court and Supreme Court judges underlines the rot that has seeped in even in the higher echelons of the judiciary. A former law minister, himself a one-time mofussil lawyer, was given to boasting openly that he had appointed three-score-plus judges to various high courts. Small wonder, then, the abuse of the appointment process by the executive caused the higher judiciary to virtually eliminate its role through the collegium system. Under this system, though the executive had to be consulted, the collegium was free to ignore its advice. Since the collegium system too was abused, the ongoing debate on a better way to make higher judiciary appointments is quite in order. In fact, the Modi Government has sought to settle the issue, initiating a consultative process among various stakeholders for evolving the widest possible consensus. The proposed Judicial Appointments Commission holds promise of cleansing the process. Insofar as it would broadbase the process and make it transparent, the proposed JAC seems to be a good idea. The constitution of the JAC will still accord primacy to the members of the Supreme Court, but it will have representatives from the Government and the bar as well. Though no firm decision has been taken on its constitution, there is total unanimity that the executive will not have the veto. As per the pending Bill, there is a provision for three SC judges, in addition to the CJI, in a six-member JAC. The Government and the Bar will have a member each. However, the Law Commission Chairman and former Chief Justice of Delhi High Court A P Shah has proposed a seven-member JAC, providing for four SC judges in addition to the CJI. The issue is still to be settled.
On Monday, Law Minister Rabi Shankar Prasad convened a meeting of eminent jurists and senior law officers to discuss the same issue. Participants were unanimous that the flawed working of the collegium system cannot become an excuse for the executive to once again muscle its way back into the appointment process. The executive will have a single representative on the proposed JAC, and he will have no special influence on its working. Even the present system of referring proposed appointments to the Intelligence Bureau for credential checks is flawed, most members argued, and needed to be replaced by something more credible and effective. Having shown a sense of urgency in the matter, it is now hoped that the new government will not delay further in passing the requisite legislation. Faith in the higher judiciary ought to be restored fully. Of course, the judiciary itself will have to take steps to ensure that it commands the respect of ordinary Indians. How it will earn public trust by clearing the mountain of pending cases, by disciplining suspect members of the middle and lower judiciary, by clamping down on prohibitively costly adjournments and frivolous cases, etc. is ultimately for it to decide. But if the appointment process is made purely merit-linked its task would become easier.