The Hindu : National judicial commission

Online edition of India's National Newspaper
Friday, Mar 28, 2003

Opinion

Opinion - Leader Page Articles

National judicial commission

By Rajindar Sachar

There is an insistent public demand now that matters connected with appointments and misdemeanours by the higher judiciary need to be dealt with by an independent body using transparent means.

OF THE three organs of Government, namely, the Executive, the Legislature and the Judiciary, political commentators consider Judiciary the weakest. And yet, in the scheme of a written Constitution such as ours, the Judiciary in the last resort is the guarantor of democracy and the protector of basic rights of an average citizen. And for the Judiciary to fulfil its role, it is necessary for it to be manned by persons of competence and integrity, so that their independence from any extraneous influence, howsoever high, is ensured.

In the not-too-distant past, integrity of the high judiciary (High Court/Supreme Court) was unimpeachable. But that confidence has been shaken after the frank lament by the former Chief Justice of India, S. P. Bharucha, that there is doubt about the integrity of 20 per cent of the higher judiciary. The recent unsavoury reports about the conduct of some High Court judges of Punjab, Rajasthan and Karnataka have further added urgency to the basic question of the mechanism for appointment, removal and taking action against higher judiciary.

Right from 1950, appointments have been broadly based on the recommendation by the Chief Justices of the High Court and the Supreme Court in consultation with the President, i.e. the Centre. Though in law, as then understood, the supremacy lay with the Government in matters of appointment — but for the unfortunate distortion of 1973-76 period — it was rare that any appointments were made without the concurrence of the Chief Justice of India.

However, by a stretched interpretation, the present position is that the recommendation of the Chief Justice of India, along with that of four seniormost colleagues, is final and that the Executive is bound to accept it. Interestingly, one of the former Chief Justices of India commented that "the text of the Constitution seems to have been departed from. The construction now placed by the court makes the Supreme Court and the High Courts totally undemocratic. The new meaning given by the Supreme Court appears to be beyond the scope of mere interpretation and virtually amounts to re-writing the relevant constitutional provisions."

Even some of the U.S. Supreme Court judges, in an informal meeting with our Supreme Court judges, paid a left-handed compliment saying that they wished they could also read "consultation" as "concurrence". In fact, so unsatisfactory and of doubtful benefit is the present procedure that apart from the public and legal circles, even former Chief Justices of India who were party to giving this power exclusively to the judges, have revised their opinion in favour of a national judicial commission (NJC).

It is for that reason that there is now near unanimity in legal and political circles that in the matter of appointments, transfers, removal and other disciplinary matters of the higher judiciary, the present position of the Supreme Court alone being the exclusive mechanism is no longer acceptable. There is also near unanimity that an NJC should be constituted to deal with all these matters. It is not a revolutionary suggestion — rather it is to be found in a number of countries.

There is the Canadian Judicial Council, 1971, which has the power to recommend the removal of judges, after holding an enquiry, to the Minister of Justice. In Australia, after a great deal of experimentation, the Constitutional Commission recommended a tribunal capable of taking up cases amounting to misbehaviour or incapacity, warranting the removal of a judge from office. In England, there is almost a revolution in thinking, considering that the country is so tradition-oriented. The appointments are made by the Lord Chancellor, who is head of the Judiciary and also a Cabinet member. In spite of this, though no doubt some kind of personal preferences do seep in, the British judiciary has not been felt to be in danger of suffering in independence because of the Executive's involvement in appointments. But serious apprehensions have been voiced lately. An Enquiry Commission appointed by the Bar Council of England, headed by Iain Glidewell, a former Lord Justice of Appeal, concluded that it was "politically unacceptable for a member of the Government to continue to appoint high-ranking judges." Sir Iain recommended that an "independent High Court appointments board take over the Lord Chancellor's role — we do not consider that the current process can be seen to be wholly satisfactory for the 21st century".

However, it will be wrong to infer that independence of judges requires that persons other than judges should have nothing to do with appointments, removal and other matters. But that is to misunderstand the role of judges in a republican Constitution such as ours. The issue that judges now have to decide are not the kind of those which arose in the 19th century. This is because the power of the Judiciary under the Constitution is different in terms of quality and extent than it was under the pre-Constitution period. Judges are no longer expected to be experts merely in the technicalities of procedure or evidence. Their role in society has undergone a sea change. Most of the cases raise questions of public law and the Constitution, in which the philosophy and broad socially-oriented objective thinking of a judge would play a crucial role in interpreting law.

Judges are not computers — the same answer cannot be given by all of them to similar questions. That is why the judicial philosophy and social outlook of persons to be appointed as judges are crucial for the democratic, egalitarian aims of our society.

It is evident that for such sensitive posts, a broader element of selection mechanism is necessary. To say that to involve persons other than judges in selecting judges will bring in extraneous pressure is too simplistic. This argument proceeds on the assumption that judges are immune to human frailties while making non-judicial decisions (such as appointments and transfers.) This self-glorification is not accepted even by members of the Judiciary. Thus the former Chief Justice, A.S. Anand, reminded the judges that though "our function is divine, the problem begins when we start thinking that we have become divine". To similar effect is the expostulation of Justice Frankfurter of the U.S. Supreme Court that "all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint".

There is an insistent public demand now that matters connected with appointments and misdemeanours by the higher judiciary need to be dealt with by an independent body using transparent means, instead of the present unsatisfactory mechanism shrouded in secrecy. It is for this reason that the National Commission to Review the Constitution also advised that a NJC be established under the Constitution.

Regarding the NJC's composition, one extreme view seems to be that it should consist of retired judges, nominated by the Supreme Court and the High Court Chief Justices. I feel this suggestion is un-workable. Nor is it in keeping with the dignity of Chief Justices. The NJC should have the CJI (chairperson), two seniormost Supreme Court judges, the seniormost Chief Justice of the High Court, the Law Minister, the Leader of the Opposition and a senior member of the Bar, to be nominated by other members of the commission. A retired judge of the Supreme Court could be a full-time member.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Prevent an imminent disaster

A credible probe needed

Anti-Congressism

National judicial commission

Western media toeing official line

Iraqi opposition wants role