Sunday, July 27, 2014

Judicial mess

Justice Markandey Katju has stirred up a hornet's nest by disclosing certain unsavoury details about appointment of an additional judge in the Madras High Court. The facts of the case have been questioned by some and the timing of disclosure has been lambasted by many.

The facts are indisputable because they had been verified earlier in a public interest litigation filed by Shanti Bhushan (Shanti Bhushan and another vs Union of India - 2007) in the Supreme Court. (Though one may disagree with Bhushan's political views, he deserves respect for championing the cause of justice in many petitions he has filed.)

Timing of disclosure may be motivated. All actions have a motive. Motives behind an action do not necessarily delegitimise the action. It will be hypocritical to pretend otherwise.

So, where do we go from here? The most important learning points from this incident are that political interference in judicial appointments is undeniably present and that higher judiciary lacks the moral courage to resist political pressure. Facts like that Manmohan Singh was an active collaborator in commitment of egregious impropriety are too well known to be recounted here. So we stay away from the obvious.

Therefore we need to create a system or modify the present system of judicial appointments so that political pressures will be kept at bay and the selectors of judges will act ethically.

Formation of a judicial appointments commission whose members will be nominated by a team consisting of the prime minister, leader of opposition, chief justice of the supreme court etc. has been advocated by many legal luminaries. This suggestion is blatantly fraught with political gaming and therefore will only transport us from frying pan to fire. It is better to keep all politicians including the prime minister and the leader of opposition from this exercise. They have repeatedly proved their incapacity to rise above narrow politics.

The present collegium system is theoretically sound. It was misused because judges with feet of clay had become senior most judges. In addition, opacity characterised the functioning of the collegium.

Laying out clear criteria for selection of judges and mandating transparency in collegial decision-making processes are the way to stem the rot in judiciary. The rest is a matter of detail.

Added on 28th July:

It is uninspiring to note that erudite lawyers like Soli Sorabjee and Fali Nariman are questioning the wisdom of Katju's criticism of delinquent chief justices. Their argument is specious and misleading. According to them, Katju should not comment on Justice Ashok Kumar because the latter is no more. Katju should not comment on chief justices because it will bring down the image of judiciary. So, avoid comments on the dead and the living. What are they afraid of? 

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