Credibility is crucial

Rajindar Sachar

HAVING upheld the collegium system over the executive attempt to take over the matter of appointments of judges, the Supreme Court will now wrestle with the question of developing a credible mechanism for the same, at a hearing on November 3. 

This is all the more necessary because of the self-serving statements of the sovereignty vesting in Parliament (by both the BJP and the Congress-led opposition) are muddying the situation. It is a settled law that wherever there is a written Constitution, the supreme law is the law of the Constitution. For Parliament to accept that its powers are limited by the Constitution is not in any manner to derogate from its sovereignty, but only to accept that its sovereignty, like the sovereignty of the executive and the judiciary, is limited by the written Constitution. 

The US Supreme Court declared in Marbury v. Maddison that the Constitution was the fundamental and paramount law of the nation and “it is for the court to say what the law is”. This was emphasised by Justice Patanjali Shastri as far back as 1951, when he upbraided the Executive thus: “That we think it right to point out, what is sometimes overlooked that our Constitution contains express provision for judicial review of legislation, as to its conformity with the Constitution”.

The only way the judiciary can now disabuse an unfair charge that it is self-serving is to make incisive changes in the functioning of the collegium system. Obviously in making judicial appointments, the court can not act as a panchayat chaupal and take decisions sitting in the open. But it also cannot act in a free masonry way, taking decisions in total secrecy and to the total exclusion of the legal family and the public. 

It is in this context that it needs to open wide and let sunlight in before finalising the appointments. It should thus agree to share the information with stakeholders, like the public and the legal fraternity especially. In the first instance, it should disclose the names being considered on the website and to the bar associations concerned. The objectors will have the right to raise objections and a decision will be taken thereafter. It would be only fair to give an opportunity to the candidate who is being considered to meet these objections. Not doing so can lead to, and in fact did lead to, the prejudice of many prospective appointees. Amusingly, there is a true incident of this prejudicial implication of how a lawyer’s (now a judge) recommendation made years ago was withdrawn because the Intelligence report said he was a “boozer”. Nobody took the trouble of checking it with him or from others —  he was a teetotaler. The unfortunate result was a delay of many years for his fresh appointment. 

Not only is there nothing wrong in this course of openness, but also is mandatory by law laid down by the Supreme Court in PUCL (2000) thus: “Citizen’s right to know is derived from the concept of freedom of expression under Art. 19(1)(a) and that people of the country have a right to know every public act or everything done in public by public functionaries”. It was pointed out that in a democratic form of government, it is the MP or an MLA who represents the people of his constituency in the highest law-making bodies at the Centre and the state, respectively. In order to ensure the purity of elections and transparency to the process of election, the court directed that people have a right to know about the background of the candidate, his assets, educational qualification, etc. 

The same principle ipso facto must apply to the judiciary which is another pillar of democracy. The administration of justice is essential for reposing the confidence of the people in the judiciary and in democratic values. The persons who are going to administer justice are, therefore, required to be chosen in a transparent manner. People have a right to know about the antecedents of a candidate who is going to administer justice. Antecedents could involve his background, his assets, qualification and achievements, which he has made in the legal profession and in other walks of life. This will enable people to inform the selection committee about such candidates, his merits or demerits. The transparency will check tainted appointments as well as the appointments made of kith and kin, near friends and relatives. The performance of an advocate is an act in the public domain. In fact, whatever he/she does as an advocate (or as a judge) is seen by the other members of the Bar. It is further clear that information about the antecedents of the candidate will enable the authority concerned to appoint judges, only after considering various factors on merit, including his honesty and integrity, besides the knowledge of law.

There is motivated talk of the seniormost judge not necessarily being made the Chief Justice. This is a dangerous move — in our context — as it will open the floodgate of the Executive manoeuvring and petty functioning. The collegium, as a matter of reaffirmation, should follow the direction no. 6 given by Verma J (in 1993 case) namely: “Appointment to the office of the Chief Justice of India should be of the seniormost judge of the Supreme Court considered fit to hold the office”.

It is evident that for such sensitive posts, a broader element of selection mechanism is necessary. To say that to involve persons other than judges in selecting judges will bring in extraneous pressure is too simplistic. This argument proceeds on the assumption that the judges are immune to human frailties while making non-judicial decisions (such as appointments and transfers). This self-glorification is not accepted even by members of the judiciary, vide expostulation of Justice Frankfurter of the US Supreme Court that “all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint”. 

The former Chief Justice, AS Anand, reminded the judges that though “our function is divine, the problem begins when we start thinking that we have become divine”.

— The writer is a former Chief Justice of the Delhi High Court