National Judicial Appointments Commission: will it be sweet or sour?

The 121^st amendment to the constitution, shunting out the collegium system of judicial appointment and replacing it with National Judicial Appointments Commission (NJAC), has seen the light of the day  (pending Presidential Assent) and brought with it a volley of discussions. The life of the Amendment Act is to kick-start with an impending challenge on its constitutionality.  Four petitions doubting the constitutional worthiness of the Amendment Act is due to be heard in the Supreme Court today. The Act has to meet the behemoth – basic structure.

A major drawbacks of the collegium system, besides it being extra constitutional, was the shroud of secrecy in which it functioned. Also the fact that judges appointing their brethren were unheard of in a system that runs on the basic principles of separation of powers.

The establishment of NJAC is justified due to the failed collegium system and legitimated through the constitutional amendment. The patent difference between the collegium and NJAC is the composition of the selection body, which has non-judicial representation.  Involvement of the Executive is through the presence of the Law Minister and the committee to appoint the two eminent persons.    The committee to nominate eminent persons consists of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People/the Leader of single largest opposition party in the House of the People. Law Minister and the appointed eminent persons bring in the non-judicial component.

Even this structure if work beyond public gaze can be plagued by the same problems that collegium system had, secrecy. The collegium system comprising of presumably superior legal minds had no reason to fail but on the principle of separation of powers. Whereas it was failed for the choices it made. The appointments made and the method of choosing has been in the line of fire for long and were condemned as arbitrary.  To analyse whether the procedure adopted by the collegium were faulty that it attracted criticism is far from possible as we are blind about how its business were conducted.

It could be assumed that transparency is the major factor that can save an institution from the critique that it acts arbitrarily. Laying out clear and unambiguous procedure is one way of tackling arbitrariness. So also, making the proceedings transparent. This transparency if infused into the procedure will be a perfect mixture. The discussions in the Commission and the Committee to nominate eminent persons shall be recorded. The statements a member makes when recorded and made public will add accountability factor, which is an offshoot of transparency.

It could be argued that members may be reluctant to speak freely if the discussions are made public. It is a ridicule even to suggest that the persons of the stature who shall be the members of the Commission will be afraid to speak out and be accountable for their statements. Also, the matter in discussion is not whether a prospective groom or bride is eligible that open statements may hurt the sentiments, but vital judicial positions with enormous implication for the nation and its future. 

Proof of the pudding is in the eating and the taste depends upon the ingredients and the cooking method. Let us hope, surviving the constitutional challenge, the procedure laid out for the functioning of NJAC will lift the cloud of secrecy from the process of selection of the higher judiciary.  

Can there be a partially honest judiciary?

This is a reproduction of a statement issued by Mr. Bijo Francis on Indian Judiciary in the website of AHRC.

The simmering debate between three senior judges in India, involving the suspect in a criminal case and a former Union Minister from Tamilnadu state, Mr. A. Raja, and his alleged attempt to influence the court to obtain bail for the suspect with the assistance of the former Chairperson of the Tamilnadu and Pondicherry Bar Council, Mr. R. K. Chandramohan, has once again brought the lingering question of judicial independence and accountability in the country into the forefront of national debates. Of the three judges involved in the debate, one is a sitting judge of the Supreme Court, Justice H. L. Gokhale, the other is the former Chief Justice of India who is now the current Chairperson of the National Human Rights Commission and the third judge is a former judge of the Madras High Court, Justice Regupathi. Chandramohan, the lawyer involved in the case has been temporarily suspended from practice and from the powerful post he occupied at the Bar Council, as it's Chairperson.

Four central questions that should be addressed and clarified in this issue are:

(1) Why did the courts -- the Madras High Court, when one of its judges were approached in his chamber, by none other than the Chairperson of the State Bar Council intervening criminally in the judicial process, and the Supreme Court of India, when its Chief Justice was addressed by the Chief Justice of Madras High Court at the request of the judge who was approached by the lawyer -- fail to immediately take actions against the bail petitioner, the lawyer and the minister?

(2) What prevented Justice Regupathi from initiating criminal proceedings against the lawyer, the accused and the minister when they tried to interfere with the court proceedings? The judge was empowered to do so. The courts in India have done it on several occasions in the past. The Indian courts have even misused the contempt of court proceedings often when the judges faced public criticism. Most of these cases involved, in lay language, 'small fries'. But in this case, which involved a powerful lawyer and a minister in the Union Cabinet, the judge appeared to be seeking consensus from his senior colleagues. One cannot be blamed if it is said that in cases involving powerful persons the court hesitates to act.

(3) What prompted the minister or his lawyer to engage in this otherwise audacious attempt of illegally approaching a High Court Judge to decide a case in favour of a particular person? Is it a practice that in this instance got exposed? It is difficult to believe that any lawyer worthy of his salt will dare to do such a task, risking his career. In this case, the lawyer involved is not a novice. He is the Chairperson of the State Bar Council.

(4) Why did not the State Bar Council take action when the judge himself first exposed the case, by his remarks in open court? The Bar Council is a statutory body empowered to take disciplinary actions against lawyers for misconduct. How did such a person become the Chairperson of the Bar Council? Is this the standard of the Bar Council? Now that the case has been exposed, what action has been taken to find the truth behind the matter other than the suspension of the lawyer from the Bar? Why no enquiry is initiated into the case?

Indeed these are some of the many questions that anyone could ask, coming to know the details about the case. Unfortunately, it is a sad irony in India that none in the country would dare to ask such questions, since that could amount to contempt, the way this miserably misused law is practiced in India.

The case not only casts shadow upon a former Union Minister or a retired Chief Justice or other judges in the country. The incident is one more indicator to the fact that it is time to seriously consider looking into the state of affairs within the Indian justice system. The country's judges must know that accountability, transparency and honesty are virtues that they can afford to insist upon the rest of the world only if they practice it among themselves.

The judiciary, irrespective of the geopolitical and legislative environment in which it works, has an inherent problem. It is the very notion of justice. In that, there cannot be a 'partially honest' judiciary. The nature of the institution demands absoluteness. It can be only either completely open, transparent and honest or absolutely dishonest. Justice cannot be 80 percent honest.

Those judges in India, who claim that 20 percent of their colleagues are dishonest, also have the responsibility to disclose the names and details of those judges who are corrupt, so that the litigants and lawyers can avoid such judges. There can never be percentages of honesty and dishonesty awarded to justice. Sadly, in India, it is so. Even worse is the fact that many in the country feel contented about the so-called 80 percent honest judges and thus about the judiciary as an institution. Any comments against it, other than from judges of the Supreme Court, warrants immediate contempt of court action.

This leads to the following additional questions. Can India continue to afford to have a judiciary that house judges having their names tainted with corruption? How long can the Supreme Court afford to have judges who will be transferred to High Courts in Sikkim or Guwahati, whenever their names and credential starts appearing in every place where a judge or his name should not be mentioned? How long can the Indian judiciary expect the people in Assam, Sikkim and Manipur to face the burden of having some of the tainted names in the country's justice system?

What would have been the approach of the higher judiciary, had the judges involved are from the lower courts, like a Magistrate or a Munsiff? Would the Supreme Court or the High Court allow a retired lower court judge to make such remarks like those made by the senior judges in this case? If not, what additional rights do these senior judges have than their colleagues in the lower courts?

Last but not least, how long can India continue to have this mess, what Indians today call as their judiciary?