By D Ramakrishaniah
The five judges constitution bench of Justices JS Khehar, Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel — after striking down the National Judicial Appointments Commission (NJAC) as unconstitutional — went ahead with the proceedings to explore alternatives to make the collegium system more transparent and accountable. Suggestions from various sections of the public, bar associations were obtained and a number of people sent the suggestions to the Supreme Court. It appears that after striking down the NJAC, which was passed by parliament and ratified by more than 20 states, the Supreme Court sought to have the stamp of public approval on its verdict by soliciting suggestions from the public.
Very limited time was given for the suggestions from the public; it is incomprehensible as to how vast sections of people who have no access to internet and technology and who live in the remote parts of the country would be able to present their points of view. The aspect of Supreme Court directly seeking public suggestions may be questionable, nonetheless what is significant is that the issue of transparency in judicial appointments has assumed critical significance. It’s no longer possible for nepotism and favouritism to surreptitiously sneak into the judicial appointments.
It is said that there are several vacancies in the Supreme Court and the vacancies in the High Court are to the extent of 40 percent. There is a section of vested interests that is trying to create a situation of vacancy crisis and is trying to push in the agenda of the same old non-transparent appointment process through the collegium system. This should be strictly forbidden and not resorted to by the Supreme Court. Large vacancies may be affecting the delivery of the criminal justice system and may be creating a lot of delay in clearing of pending cases, however mere pendency and vacancies will not justify non-transparent appointments.
Even when the vacancies were fewer, the performance of the judiciary in clearing outstanding and pending cases has not been extraordinary.
The performance of the judiciary has hardly ever been in the public domain. While it is important to ensure that we have a mechanism for speedy disposal of cases, the most important and significant thing is to ensure a transparent appointment mechanism of higher judiciary in high courts and the Supreme Court. This transparent mechanism of appointment that is in league with the constitutional provisions and requirements would have to be thoroughly examined and proper procedure should be first put in place before any appointments are made. A plethora of suggestions that have been received by now, can be examined by the government in consultation with the Chief Justice of India and a sincere attempt should be made to put in place an independent system such as the establishment of an independent commission or body such as the UPSC, and introduce the All-India Judicial Services.
Nobody need have a say, whether the executive or the judiciary.
The perpetuation of the collegium system would be a great injustice to the young aspirants who seek to become part of the higher judiciary. The creation of All-India Judicial Services will provide an attractive career-based judicial service for the aspiring law graduates and has a potential of perhaps becoming the number one career service of the country and it will go a long way in attracting the brightest and the best talent available in the country.
The merits in favour of the creation of All-India Judicial Services are far too many to ignore yet it is incomprehensible that the demand which is more than five-decades-old has not been implemented — primarily on account of vested interests both in the political and judicial systems masquerading in the name of judicial independence. While in reality, it was the intense desire to perpetuate nepotism and favouritism, continuation of the obsolete, unfair and non-transparent system of judicial appointments will not ensure transparency in the judicial functions, and will also not provide objectivity, fairness, sensitivity and a professional approach to judicial workings.
In spite of the fact that several people have applied to the Union government and Supreme Court for the introduction of the All-India Judicial Services, it appears that the judiciary is taking advantage of a divided parliament, so as to be able to push its agenda of perpetuating judicially-sponsored appointments. Although a procedure has not yet been framed by the Union government for transparency in the higher judicial appointments, recently the collegium has already finalised the postings of 13 Chief Justices of various high courts, which is blatantly unfair and un-justified.
During the pendency of finalisation of the procedure for appointment of higher judiciary, the collegium ought not to have finalised the names.
Since the divided parliament and largely muted press is unable to voice any protest to such recommendations, it is perhaps left to the civil society to take up the cause of transparency in the judicial appointments.