The process of appointment of judges of the Supreme Court and the High Courts is an integrated participatory consultative process for selecting the best and most suitable persons available for appointment There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible.
Supreme Court of India in the Second Judges Case (AIR 1994 SC 268)
IT was 16 years ago that the Supreme Court of India gave this ruling in what is still regarded a landmark pronouncement. This was meant essentially to send out a strong signal to both the executive and judiciary that there cannot be and should not be any dilution of the standards set for judicial appointments.
The unmistakable message was that there should be neither political nor personal prejudices in the matter of choosing judges for the highest court of the land. By the same logic, the inference was that happenings impinging the image of the judiciary could not be swept under the carpet as they rightly fell within the public domain.
Ironically, until a few decades ago, it was almost taboo to discuss the judiciary in critical terms, either for its out-of-the-box rulings or for some apparently dubious decisions. Sedate and non-controversial comments were therefore the order of the day. Even the odd one who dared to take a dig at the hallowed institution couched his or her words in utterly ambivalent and defensive language so that he or she could still get away if hauled up by the lordships for contempt.
Those were the days when the contempt law was abused, and some judges went to utterly ridiculous limits. I remember one judge holding court on a railway platform to indict a station master for contempt, all for not providing a berth to a judge on a packed train. We have come a long way since those eminently forgettable days. Now one can comment fearlessly on both judges and judgments, as long as it is based on provable facts and amounts to reasonable criticism in public interest. The rule of prudence, however, has always been: you can criticise a judgment on its merits or shortcomings, but never question the motive of a judge in arriving at his or her conclusions. Also, when it comes to assailing the character of a judge, truth alone may not always be justification enough for levelling allegations.
Although judicial rulings on this subject are somewhat divided, I now see a lot of bold, meaningful and generally responsible writing that is extremely critical of the judiciary but which is considered appropriate and necessary to promote and preserve high standards of probity. Such criticism is also considered to be in tune with the widely shared perception that transparency is the hallmark of all modern public bodies. The judiciary is no longer the holy cow that it used to be and is open to clinical analysis.
In this context, the recent ruling of the Delhi High Court that the Right to Information Act was as much applicable to the Supreme Court as it was to the lower judiciary has been hailed by many. The Supreme Court is scheduled to take up this High Court ruling, in what is expected to be a full Bench sitting. Its outcome could form a watershed in the history of the Indian judiciary. It is on that basis alone that international evaluation of our judiciary could well proceed in the years to come.
The immediate provocation for my writing on this contentious subject of judicial standards and accountability and their corollary, that is, judicial independence, is a brilliant and most convincing talk that was delivered recently in Chennai by Justice J.S. Verma, former Chief Justice of India and Chairman of the National Human Rights Commission (NHRC).
The Govind Swaminathan Foundation, which organised the lecture, conferred on Justice Verma an award to recognise his contribution to legal ethics in the country. (Govind Swaminathan, an eminent barrister in the 1960s and 1970s, rose to be the Advocate-General of the State. An affable gentleman, he left a deep impression on the Madras Bar for his outstanding advocacy and faith in legal rectitude.)
In the view of a majority who were present at the Madras High Court that evening, none better than Justice Verma could have been chosen for the honour. His observations, in the Second Judges Case and the Hawala case, in the Supreme Court and directives to the executive both at the Centre and in States, when he was chairing the NHRC, speak for themselves. His clarity and fearlessness are regarded as something worthy of emulation by all those who aspire to climb the heights of excellence in the judiciary and the Bar.
Justice Vermas lecture was forthright and free of any jargon that could obfuscate the main theme, that is, the judiciary presently faced many dangers to its credibility, and it was required to do a lot of introspection and house-cleaning for clearing doubts arising from a few recent unsavoury incidents. Justice Verma obviously had the Justice Nirmal Yadav and Justice P.D. Dinakaran controversies in mind. I am troubled was the refrain that one heard right through his commentary on the judiciary. Coming as it did from a man of Justice Vermas stature and reputation, we can hardly ignore the warning.
Established procedures for both judicial appointments and inquiries into alleged misconduct by judges received major attention from Justice Verma. Notwithstanding some solid processes that have come into being, the popular impression was that these are flawed and require continual finetuning. He sought to clarify misconceptions that after the Second Judges Case, the executive did not have any role at all in the matter of appointments. It was true that the veto power given to the executive in the First Judges Case (1982) was taken away by the Second Judges Case (1994). But a reading of the latter judgment would highlight the fact that the process of appointment was participatory, one in which the executive was also required to bring in its inputs, especially in the matter of ensuring that the appointee had no adverse character and antecedents.
In Justice Vermas view, the current problem is not one which arises from the enormous authority given to the Supreme Court collegium by the Second Judges ruling. It is rather from the application of that judgment and dissemination of the wrong impression that once the collegium makes its recommendation, it was absolutely binding on the executive, even if the collegiums recommendation was not unanimous.
Justice Verma went on to say: .the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc., are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous, does not bind the executive to make the appointment.
Justice Verma could not have been more lucid on a subject that generates a controversy every other day. This assumes importance especially in the context of some jurists of unimpeachable integrity questioning the quality of appointments made after the Second Judges Case. The media would do well to keep in mind this interpretation by a judge who was part of the Bench that delivered the judgment before assailing the executive each time a collegium recommendation is held up either in the Ministry of Law or in the Rashtrapati Bhavan.
Justice Verma did not pull any punches also while commenting on matters related to misconduct by judges and investigations thereof. He recalled how he had been pleading for years, especially after the K. Veerasami case, that self-regulation by the judiciary was preferable to any external probe. He was for a clear-cut legislation on the subject, which left little scope for the executive to misuse the opportunity provided by misconduct of some judges and drive the judiciary to a tight corner.
Justice Verma told the audience that the framework for such a legislation should have come from the judiciary, instead of the executive, and that too years ago. He feared that the formers failure had allowed the initiative to go into the hands of the executive. In effect, what the Constitution had denied in terms of authority over the judiciary had now been obtained by the executive by the sheer default of the former.
Justice Verma spoke with passion on a subject that may never lose its relevance. He spoke also with anguish that recent happenings had eroded the credibility of an arm of the state, whose crucial role had a definite bearing on the stability of our democracy. There may be a few, just a few, in the judiciary who could advocate ignoring Justice Verma. That is an easy option. In the long run, however, such negativism could prove fatal to the cause of democracy and human rights. Viewed from this perspective, everyone in the world of justice needs to study Justice Vermas speech and draw appropriate lessons.