Originally Published 2014-07-31 08:57:32 Published on Jul 31, 2014
Without having to do away with the collegium per se, the new scheme could involve its choice going to Parliament, through the Executive, for a joint committee of both Houses holding public hearings, the American way, before the President appoints the person.
Why not Parliament oversight on Judges' appointment?
Now that the Centre has begun consulting jurists and others on the subject, it may be time to consider the possibility and propriety of bringing Judiciary under Parliament oversight, to ensure greater transparency, accountability and accountability. Predecessor UPA-2 had promised a Judicial Accountability Bill but it remained a promise, to be forgotten.

Despite perceptions about motivation and timing, Press Council Chairman, Justice Markandey Katju's recent revelation has stressed the need for greater transparency in high-level judicial appointments and transfers, and also brought out the absence of accountability and culpability in the matter. Going also by Justice Katju's belated observations, the present scheme defies the law of natural justice that dictates that the alleged wrong-doer (the late Justice S Ashok Kumar in this case) should be heard before a verdict is pronounced on his conduct.

Justice Ashok Kumar having been a member of the Tamil Nadu subordinate judiciary, questions will also arise as to how he became suddenly unqualified or under-qualified for elevation, after none before Justice Katju had found him unfit. And if Justice Katju had been over-ruled, as he claims, there is no knowing why no clear pronouncements were forthcoming. The judiciary expects such conduct and communication in relation to other appointments, promotions and transfers.

Code of conduct

Along with the collegium system for appointments to the higher judiciary, the Supreme Court should have framed code or rules of conduct for judicial officers, both during and after leaving the service. With Governments and political masters in States like Tamil Nadu always being in litigation, we have had Chief Justices of India receiving successive Chief Ministers of the State - and many be from elsewhere too - at their homes.

Post-retirement, such rules should have provided for a 'cooling off' period for judicial officers at all levels to accept private or public employment of whatever kind. Better still, the law, the Law Commission and the Pay Commission could provide for attractive pension and perks for retired judges at all levels, to discourage them from taking up post-retirement assignments, in government or out of it - and in all forms.

To facilitate drawing upon serving officers to head inquiry commissions under the law, the Government should facilitate filling up existing vacancies and creating more, whenever sought by the Supreme Court. To ensure judicial independence, it should also provide for an independent budget drawn from the Consolidated Fund of India, administered and audited by non-judicial officers at all levels, and presented to Parliament like any other CAG report. Good judges, like good doctors or engineers, do not necessarily make good administrators or book-keepers.

There is no reason also to buy the argument that Judges alone know the legal and judicial acumen of incumbents and aspirants. For historic reasons, the political class in India has been peppered with law professionals at all levels, almost since Independence. They will also know the personal background of lawyers and Judges better than the Judges on the collegium.

Delegated powers

The democratic constitutional scheme provided for Parliament, as in most other cases, delegating its powers for the appointment of Judges to the Executive. Parliament has, however, retained the powers of dismissal of such Judges to itself - in the form of 'impeachment'. It should thus share the responsibility, accountability and culpability in appointments, too.

As in other matters, the President is aided and advised by the Council of Ministers headed by the Prime Minister. As recent events have proved again, the collegium scheme, devised unilaterally by the higher judiciary, is only recommendatory in character, still. The dichotomy has to end. Either the Executive and Parliament formalise the collegium's exclusive powers, or they overhaul the same, as seems to be the need of the time.

Without having to do away with the collegium per se, the new scheme could involve its choice going to Parliament, through the Executive, for a joint committee of both Houses holding public hearings, the American way, before the President appoints the person. Throughout the process, the collegium should still remain a reference-point for clarification, for obvious reasons.

It is naive wanting to hide the political philosophy or personal predilection of judicial aspirants under the cloak of probity and propriety. Exposing and explaining them in good time will only enhance both, as personal preferences of the time have become acceptable as an inevitable reality of our times. So have private or public discourses on the same, at least up to a point.

Private and political deals could still be cut, but public hearings in an era of high-intensity media-alert could still discourage the undeserving from not putting up their names for consideration and lobbying for the same, otherwise. If at the end of it all, the choice turns dud, then the collegium alone does not have to take the blame, with an avoidable imagery of a secret cabal - which it certainly is not.

At impeachment proceedings, if it came to that, Parliament will have to ask itself how and why they had passed an undeserving in the first place, and could add remedies, at every turn. After all, an evolving democracy should provide for an evolving scheme - as the dynamism of the Indian Constitution with so many amendments to its credit has shown. The purpose would have been met if and only if the effort is aimed at strengthening judicial independence, and not ends up weakening it.

(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.


N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

Read More +