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| JUDGES AND APPOINTMENT | | | ___________ _____ _ By Ranbir Singh Pathania | 10/25/2009 11:06:11 PM |
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Ramayana has a sweeping influence on India – as a society, culture and civilization - and so does Lord Rama’s justice-dispensing system. Drawing an astute line between ‘dharma’ and ‘adharma’, the Lord is said to have postulated a cosmopolitan principle – whatever is just is always just, and unjust always unjust. The quantum of faith and credibility associated with Lord’s verdicts was such that they were accepted and acclaimed by the loser as good as by the winner. Probably, this might have moved the great saint-cum-historian, Tulsi Das, to connote that ‘Ram Rajya’ and ‘Ram Nyaya’ would remain to be adored and accepted as role-models by the people as well as judges until the sun and the moon are there.
A bold band of lawyers led by legal luminaries like Ram Jethmalani, Shanti Bhushan and Soli Sorabjee has put the Union government on defensive with regard to the elevation of P.D. Dinkaran, Chief Justice of Karnataka High Court, to the Supreme Court. Dinkaran has all-along been accused by the Tamil Nadu Bar Association of amassing wealth and possessing assets, particularly 500 acres of land in Piruvullar district, palpably disproportionate to his known sources of income. Even then he was put in the prize-list of judges about to be elevated to the Supreme Court. Had it not been for the rowdy initiative and sense of pro-activeness of Tamil Nadu Bar Association and the leading lawyers in New Delhi, Dinkaran by now would have assumed the proud robes of a judge in the premier judicial institution of our country. The collegium in Supreme Court had sought a report from District Collector, which believably, has confirmed the charges against the judge. The collegium, as per reliable sources, is further known to have sought a response from Justice Dinkaran with regard to the allegations against him. And it is all-probable now that the Justice Dinkaran would be a drop-out form the list of proposed prize list. The sorry episode has sparked off a nation-wide debate - whether the mechanism governing the appointment of judges has sufficient checks and balances so as to clog the entry of corrupt and deadwood people to the Bench.
A proper scrutiny and fool-proof procedure governing the appointment of judges is virtually missing. It is easy to recall the year 1992 when one Srivastava from Mizoram Judicial Services received the Presidential warrant of appointment as a High Court judge. And later it came to light that he lacked the minimum qualification of 10 years of practice-at-bar/stint in judicial service. The warrant of appointment came to be later on quashed by the Supreme Court in a Public Interest Petition. The charges of misconduct against Justice Soumitra Sen from Kolkata for misappropriating Rs. 32 lacs while acting as a Court receiver and judges involved in the multi-crore Provident Fund scandal in Uttar Pradesh trace their roots prior to the elevation of these people to the Bench. It has not been a long ago that a C.B.I. inquiry had been ordered in Chandigarh with regard to the conduct of a High Court judge in cash-at-door scandal. How surprising! People with tainted pasts are managing smooth cakewalks to the jury. The judiciary and executive have been indulging in a sort of blame-game over the faux pas. The Chief Justice of India seeks to pass off the issue, too thick to be looked over lightly, by attributing it as an intelligence failure whereas the Union Law Minister calls it as an ugly consequence of judicial sway in appointment of judges. He has also went to the extent of charging that judiciary is not indulging in merit-based appointments. Fact remains that by virtue of a judicial ruling pronounced in 1993, judiciary has virtually took charge of the power of appointment of judges – the government may object to anybody’s name but cannot stop him from becoming a judge. The Prime Minister has sounded the alarm-bell that only honest and competent judges should be appointed as judges. The Parliamentary Standing Committee on Law, Justice and Personnel has called for an immediate overhaul of the procedure-in-vogue for appointment of judges. It has rather recommended disclosure of details and profiles of the appointees and the procedures involved in the process of appointment. But, unfortunately, the Union Law Ministry has taken a totally averse and otiose stand before Delhi High Court while challenging a Central Information Commissioner’s order stipulating that files relating to judges transfer are within the purview of Right to Information Act. It has pleaded that constitutional authorities, like President, Supreme Court and High Court judges are outside the sweep and amplitude of the Act. Whereas, surprisingly enough, there is no specific statutory provision catapulting the judges in the touch-me-not citadel. Former C.J.I. J.S. Verma has also said, “What has led to deterioration in the quality of judges is lack of transparency in procedure. I fail to understand why secrecy should be maintained once the process of appointment is over”
In U.S.A., the President has been vested with the power to make all key appointments including judges, but with the prior and mandatory approval of the Senate. Not only this, a judge has to get himself assessed and interviewed before Senate preceding his appointment. In many other foreign countries also, efforts have been made to work out fool-proof and efficacious systems for appointing judges. In India, our Constitution-makers had echoed the indispensable need for devising out a system dealing with the appointment, removal and working of judges. But it looks as if the post-freedom leadership was too starry-eyed and visionless to foresee that people of least sum and substance shall come to hold the charge once the old guard vanishes. No effort has till now been made in the direction of achieving the long-cherished goal.
Nevertheless, the chronology of events on the judicial canvass of our country seems to have drawn fresh battle-lines between the executive and the judiciary. Whereas, a sense of responsibility and a broader mutual understanding is the need of the hour. Transparency in the appointment and working of judges is also required to be maintained at every cost. The judges should be barred from further employment. How incomprehensible, while the members of C.A.G and U.P.S.C. are banned from further employment, why not the Supreme Court and High Court judges. And the judges should voluntarily disclose their assets and put them on the website of Supreme Court. The Delhi High Court order directing the Supreme Court judges to disclose their assets has been challenged by the Supreme Court. It really sounds ridiculous – judges seek a separate law for themselves in the field of right to information. The Union Law Minister’s bold talk of resurrecting the credibility and image of the judiciary without diluting its independence through the proposed ‘Judicial Standard and Accountability Bill’ also sounds a bit pragmatic and meaningful. While the sought-to-be-replaced Judges Inquiry Act was primarily meant for impeachment of High Court and Supreme Court judges, the proposed law would have additional provisions for dealing with “corruption, misconduct and misdemeanour” of judges. Let’s pray the ambitious Bill sees the light of the day after successfully going through the riff-raff of the Parliamentary approval.
Although the proposed law is a temporary stop-gap measure, the cat cannot be effectively belled but for the creation of an independent, faith-inspiring and over-arching body – National Judicial Commission. The Commission should accord meaningful representation to the executive, legislature and the judiciary including the Bar as well. And it should be all-empowered to devise out a procedure of its own regarding appointment and taking of disciplinary action against delinquent judges. It is surprising to note that bodies on the pattern of Judicial Commission are in place and delivering considerable goods in U.S., U.K. and Canada. Why the ‘Jai Ho’ nation is an exception? In fact both the judiciary and executive have put in concerted efforts to stall the setting up of National Judicial Commission in India. The concept of All India Judicial Services dealing with appointment of subordinate court judges coined long back by the first Law Commission having M.C. Setalvad and Nani Palkiwala as its members culminating in amendment in Article 312 of the Constitution, remains a dead letter till now. A consensus on the matter eludes the 21-point resolution adopted in Chief Justices’ recent conference at New Delhi.
And, above all, for the gospel of ‘RamNyaya’ to be re-incarnated, a vigilant, bold and duty-conscious citizenry, acting as a democratically viable pressure group, is also desperately required. As aptly said, “Nothing happens unless something is done.”
The columnist practices law in J & K High Court and can be reached at [email protected]/ Mo. : 09419160313.
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