Beating the summer 250 years ago

It is now open season for taking potshots at the judiciary. Almost everyone has something, usually harsh, to say about the honourable men adorning the benches. And politicians seem to be leading from the front in this onslaught.

The provocation of course is the plethora of allegations against some of the sitting judges across the country. These charges have come in quick succession lending an edge to the criticism.

But certain vital aspects seem to have been lost in all this cacophony. First, where do the judges come from? They do not descend from heaven but emanate from our midst. They, too, in some measure, carry the burden of the warts that are evident in our society. Secondly, and importantly, the choice of the judges ought to be a vital factor for ensuring the uprightness and the generally high calibre of the judiciary. Even a casual, but regular visitor, to a high court, would, after a few days, be able to identify some of the best brains in the Bar.

Unfortunately, the most deserving are ignored at the altar of caste preferences, potentially pliable, favourites and politics. Thus, not all those chosen fulfil the highest standards that the Constitution makers, and ultimately the people, expect of the judiciary.With some of the alleged unsavoury conduct of a few judges getting publicised, Members of Parliament recently took the first opportunity during a discussion on an innocuous amendment to the Delhi High Court Act, to vent their anger at the judiciary. One member, referring to the charges of corruption against some judges in a couple of High Courts, went to the extent of saying, "it is high time that the executive stands up and asserts the primacy of Parliament."

They were also critical of the alleged "intrusion of courts into the administrative terrain" through activism and also the use of the Contempt of Court Act. Indeed, some of the MPs wanted the Contempt of Court Act, "a product of the colonial era," done away with altogether. The Law Minister intervened to say "we need judicial statesmanship to ensure a dividing line in order to avoid confrontation." He also announced the Government’s commitment to put in place a National Judicial Commission soon to deal with the appointment of judges and also look into complaints against them.

The National Judicial Commission was referred to first in the Constitution (67th Amendment) Bill, 1990, since lapsed. The Commission that the Government now envisages would comprise the Chief Justice of India as its chairman, two senior Judges of the Supreme Court, the Union Minister for Law and Company Affairs and one person of eminence to be nominated by the President in consultation with the Prime Minister, as members.

The demand for a commission of this nature had been made ever since the apex court took away from the executive the power of appointment of judges of the Supreme Court and High Courts and the transfer of judges of the High Courts in 1993 in the Second Judges Case. The judgement concentrated the power of appointment of judges solely in the hands of the Chief Justice of India by interpreting the President’s authority in Article 124 of the Constitution.

A recent ruling of the Supreme Court, while upholding the 1993 judgement, required the addition that the consultation process be guided by the decision of a collegium of judges headed by the Chief Justice of India.

If the 43-year-old practice of appointment of judges by the executive in consultation with the judiciary was dispensed with because of perceived ills, where is the guarantee that the proposed National Judicial Commission will not end in disenchantment sooner than the present 10 year old system of choosing judges which again is now considered to be unsatisfactory?

Then, there is the other aspect of taking to task judges who stray from the straight path. According to the existing Constitutional provision, a judge, whether of the Supreme Court or High Court, "shall not be removed from office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that house and by a majority of no less than two-thirds of the members of that house present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."

There has been only one attempt at impeachment under this elaborate procedure, that of a former Supreme Court Judge, which failed to get the requisite support. The Constitution makes no provision for "deviant behaviour" as distinct from "proven misbehaviour" which provides for impeachment.

It is in this context also that the National Judicial Commission that is intended to be set up is sought to be used as an instrument for in-house correction and punishment of errant judges. A variety of powers is sought to be vested in the proposed Commission, in a graded manner, depending on the nature of proven offence by a member of the judiciary. It could be a mere warning, transfer, dismissal, and depending on the seriousness of the offence, finally impeachment.

The Government’s proposal is broadly in line with the suggestion of the National Commission to Review the Working of the Constitution which went into these aspects in great detail. The Commission had underlined that the composition of the National Judicial Commission should not be such as to affect directly or indirectly the independence of the judiciary and the power of judicial review, both of which have been held to be the basic features of the Constitution. It suggested two alternative compositions of the National Judicial Commission: one comprising the Chief Justice of India, four senior judges of the Supreme Court next to the Chief Justice and the Union Minister for Law; or, the Chief Justice of India, four seniormost judges of the Supreme Court next to the Chief Justice, the Union Minister of Law and two eminent persons to be nominated by the President of India, in consultation with the Prime Minister of India and the Chief Justice of India.

While on the subject of correcting some of the ills of the judiciary, thought ought to be given to the grant of financial autonomy to it. The words of the Constitution Review Panel bears repetition: "There is a dearth of Courts and Judges and of buildings both for Courts and Judges and officers and staff. In several cases even minimum facilities have not been given. The reason is that there is no planning and proper budgeting of the Courts’ requirements in consultation with the judiciary as is done in other countries. Nor is there a long-range plan or at least a Five-Year Plan. The result is that most courts are over-burdened with cases on the civil and criminal sides. "