As Shakespeare said, there’s ‘something rotten’

Let us focus on the fundamental hopes and expectations of 1.4 billion people from the judges in the country's highest court of appeal. One may go incognito to the court campus to hear what the thousands of litigants, their friends and relatives have to say on various issues of democratic India's judiciary on a given day.

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How is the high priest in the highest court seen and assessed, irrespective of the verdicts that come out of the courtroom? It's important that a judge be ascetic-like, but not mendicant, and be a recluse of sorts, far from the madding crowd. Once a judge, he/she has to be detached, fair, objective and aloof from all allurements and glitz and glitches of society. Immersed in books, papers and thoughts, he/she must avoid partying, lecturing in public fora, issuing press statements or be photographed with high-profile public figures. That would cut deep into this oft-quoted adage: Justice must not only be done but also appear to have been done.

Thus, image, credibility and probity must be an inalienable part of the judges in office, while deciding the fate of millions of people. They must be likened to the quote "Caesar's wife must be above suspicion." Not only performance, but also visibility, behaviour, utterances and body language, all combined, make a judge a judge.

Trust, faith and confidence of the people on the highest judiciary mustn't be allowed to be shaken or broken at any cost. And that can only be done by self-regulatory means and self-controlled mechanisms, adopted by the judges themselves.

That would bring us to the moot point of the appointment of judge(s). Article 124 (2) of the Constitution stipulates: "Every Judge of Supreme Court shall be appointed by the President." Plainly, the President of India still is central to the appointment of the Supreme Court judges, and the jurists of the apex court play a helping role vis-à-vis the appointment of their colleagues to the Bench, through "consultation".

The makers of our Constitution rightly and wisely drafted the legal words. Hence, the best of legal brains, like Ashoke K Sen, could be the President of Supreme Court Bar Association as well as a brilliant Law Minister from 1957 to 1966 and 1984-1987.

Those days — from 1947 to the 1990s — the executive rightly and legally held the key to the appointment of judges. However, a few deplorable happenings between 1973 and the 1990s pertaining to judges irreversibly damaged the reputation, image and credibility of both the executive (the appointing arm) and the apex court (the appointed). It marked an embarrassing period of struggle for mastery between the judiciary and the executive on the issue of apex court appointments.

The Indian system honestly adopted and deftly adapted itself by finding a via media between the US system of judicial supremacy and the British principle of parliamentary supremacy. At the same time, it also empowered the judiciary to declare a law unconstitutional if it was perceived as going beyond the competence of the legislature, according to the distribution of powers, as enshrined in the Constitution. Thus, in the landmark 13-judge Bench (April 24, 1973) verdict on Kesavananda Bharati vs Kerala, the doctrine of the "Basic Structure of the Constitution" formed the basis of power of the judiciary to review and override amendments to the Constitution enacted by Parliament.

In this background, when the executive gravely erred in appointing junior judge Ray as the Chief Justice of India (two days after the Kesavananda Bharati April 24 case) on April 26, 1973, jumping over three of his seniors (Shelat, Hegde and Grover), a protracted tussle between the two arms of the state became inevitable.

Things worsened with the repeat bypassing of seniormost Justice Khanna by his junior jurist MH Beg in January 1977.

The final nail in the coffin was deeply speared in the 1993 humiliating impeachment (though failed) of sitting Supreme Court Justice V Ramaswamy.

The power to appoint its own judges was taken away by the SC itself. Henceforth, the "Collegium System" of designated seniormost judges would have the sole say in recommending and proposing names of jurists to be elevated to the apex court. In this, the executive would not have any say except to endorse what the sitting arbiters of SC said.

The last and latest of this bitterly prolonged battle between the executive and the judiciary was played out in the apex court, resulting in the declaration of the Constitution Ninety-ninth Amendment Act, 2014 as unconstitutional and void. Also, the National Judicial Appointments Commission Act, 2014 (passed by Parliament) was declared unconstitutional and void. And the apex court declared the system of appointment of judges to the Supreme Court and high courts and transfer thereof as existing prior to the Constitution Ninety-ninth Amendment Act, 2014 (called "collegium system") to be operative.

As things stand today, the "collegium system" is supreme and unchallenged. However, in the midst of serious allegations against a sitting Delhi High Court judge, an embarrassing scene has emerged on the present system and murmurs are increasing by the day. Several potential fronts are coming alive to revisit the higher judiciary.

The reality is that in the first chapter, the executive appointed the apex court judges. After its failure, the second chapter saw the judiciary playing a pivotal role in appointing the judges. Has the time now come for a third chapter?

Could India take a cue from the procedure for appointing the justices of the Supreme Court of the United Kingdom, which is set out in the Constitutional Reform Act 2005 (CRA 2005) and the Supreme Court (Judicial Appointments) Regulations 2013? The process for selecting the justices of the UK's SC is overseen by an independent selection commission, which is convened by the Lord Chancellor in accordance with the relevant Sections of the CRA 2005 and the Supreme Court (Judicial Appointments) Regulations 2013.

If Rs 15 crore have been allegedly found from one of the seniormost sitting high court judges, who could very well have headed to adorn apex court Bench, then Shakespeare's iconic words "something rotten" in the play Hamlet comes to mind.