Aug 11 2014 : The Economic Times (Delhi)
Think Beyond a Judicial Commission
The legislature must have a role in judges' selection
It is time the discourse moved away from treating the collegium system of selecting judges and a judicial appointments commission as the only two choices before the nation for fair appointments to the higher judiciary . The trouble with a judges' collegium making the selection is supposedly the possibility of converting the judiciary into a self-propagating oligarchy . The revelation by Justice Markandey Katju is that the executive exerts undue influence on the collegium, not that the collegium is insularly autonomous. The conduct of the present government of turning down the nomination of Gopal Subramanium also makes it clear that the problem that needs to be fixed is not collegiate insularity and unaccountability . Actually , the problem is broader.India's justice system is a mess. It takes decades to settle a legal dispute beyond final appeal. Undertrials waste long years of their life in jail before they are, more often than not, acquitted. As the ultimate repository of popular sovereignty , Parliament has the responsibility to fix this mess that the judiciary has manifestly failed to.
Judges' selection must be seen in this context. It is necessary to ensure the individual independence of those appointed as judges and to maintain the collective independence of the judiciary , to ensure that it retains its ability to act as a check on the executive. While the judiciary is vocal on these themes, its silence on accountability is deafening.
The proposed Judicial Appointments Commission does not address these issues even partially. It only runs the risk of enabling the executive to pack the highest court of the land with people of its own ideological bent.
This is not surprising, considering that its offered solution to the quandaries surrounding fair selection of judges is to transfer such quandaries to the selection of members of the commission. To ensure truly non-partisan selection of judges, the legislature must have a decisive role in the process, whether by committee or majority of an entire House, preferably the Upper House that is less susceptible to the vagaries of electoral mood swings.
Judges' selection must be seen in this context. It is necessary to ensure the individual independence of those appointed as judges and to maintain the collective independence of the judiciary , to ensure that it retains its ability to act as a check on the executive. While the judiciary is vocal on these themes, its silence on accountability is deafening.
The proposed Judicial Appointments Commission does not address these issues even partially. It only runs the risk of enabling the executive to pack the highest court of the land with people of its own ideological bent.
This is not surprising, considering that its offered solution to the quandaries surrounding fair selection of judges is to transfer such quandaries to the selection of members of the commission. To ensure truly non-partisan selection of judges, the legislature must have a decisive role in the process, whether by committee or majority of an entire House, preferably the Upper House that is less susceptible to the vagaries of electoral mood swings.
