By Mayank Jain:
An independent judiciary is the sole torch bearer of a troubled democracy like ours where corruption charges taint one and all and legislature is marred by age old laws and systems. Some of them, like the Contract Act, date back to 1872. The recent turmoil over Justice Markandey Katju’s allegations about corruption and political influence in the judiciary has brought the question of effective independence of the judiciary to the fore again.
This controversy has been sparked over the appointment of a judge in Madras High Court. He was politically connected and was allowed to remain on his position for successive terms. The allegations have been directly put on three former Chief Justices of India (CJIs). Reportedly, the appointments were made even when the concerned judge had corruption charges against him and he was mentioned adversely in an IB report as well.
Katju has alleged that the ex CJI RC Lahoti granted him one year extension as the additional Judge of Madras High Court. This move by Lahoti was criticized by the court as the process of his appointment was questioned, but the court didn’t call for any action. Moreover, the case didn’t end here as the very next year, CJI YK Sabharwal recommended a six month extension to him in August, 2006.
The series of appointments didn’t stop there and when CJI KG Balakrishnan took over, he made the judge’s appointment permanent and transferred him to Andhra Pradesh High Court. These continued appointments and extensions do raise a lot of questions and may cause an uproar if in fact, the allegations of corruption and political influence made by Katju come out to be true.
What this translates to, is the fact that we are still far away from removing political influence from the judiciary and our efforts to make it independent and fair don’t seem to be going anywhere. Political interference has thwarted the clean and fair judiciary which we have always prided ourselves upon.
Playing ball with the laws:
The appointment of judges at higher level courts and Supreme Court are governed by the collegium system. This system prescribes the appointments and transfers of judges through a forum of Chief Justice of India and the four senior most judges of the Supreme Court.
Interestingly, the system has no mention in the Constitution of India which says the appointment should be made by the President with consultation of High Courts and Supreme Court judges. This system has come into criticism time and again because it lets political interference seep in through the loopholes.
The biggest criticism of the collegium system stems from the fact that it reduces the pool of open options to only the higher ranks in High Courts instead of giving opportunity to the more potent pool of candidates in lower ranks to be considered for positions in Supreme Court. Another consideration is the fact that it is a closed door affair without a formal system in place that brings the much desired transparency to our ailing democracy. The Supreme Court has continuously taken some steps to correct the deficiencies and issued some guidelines for the appointments but even introducing a new bill called Judicial Appointments Commission Bill, 2013 couldn’t change things.
New System, Newer Evils:
The Constitution (120th Amendment) Bill, 2013 was perfectly orchestrated to be passed by Rajya Sabha by the previous government in September along with the Judicial Appointments Commission Bill (JAC). However, the Constitution Amendment Bill has lapsed with the dissolution of Lok Sabha and the JAC Bill is still pending.
The Judicial Appointments Commission Bill seeks to revamp the system of appointments and transfers of the judges and make the decision making process in judiciary a faster and more inclusive affair. Unfortunately, the ghost of over inclusiveness and democratic bureaucracy will still haunt our judiciary if the review isn’t taken up by the government.
The JAC Bill will set up a six member committee for appointments which will include three SC judges, the Union Law Minister, the Law Secretary as its convener and, two “eminent persons” appointed by a body comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India.
However, the commission might create more problems than end them, with the involvement of government. The judiciary will now be more prone to excessive use of muscle power by the executive and when politics spills over on justice, there’s no way a good picture comes out.
The Bill also has some legal loopholes making it vulnerable to amendments by any government, leading the Parliament to leave it useless. This, due to the One Hundred and Twentieth Amendment Bill, 2013 which introduces Article 124A in the constitution to ensure that its actual composition and functioning can be regulated in the Parliament.
Katju is only 3 months away from the end of his term as the Chief of the Press Council of India and his allegations are far from isolated. We saw similar dirt being spilled on the muddle of government and the judiciary in the case of Gopal Subramanian’s appointment where a series of leaks appeared in newspapers. He took back his candidacy eventually.
BJP might blame Congress for the wrongs of the past but with the mandate that the party enjoys, it becomes a responsibility of the government to rethink our judicial prudence before barging in the way of justice. Causing ruckus in Rajya Sabha or not letting debates happen by raising your voice can’t work forever and an early realization won’t hurt the party.
To know more about this story and what I think, follow me on Twitter at @mayank1029