TIME FOR JUDICIAL REFORMS (July-Sept 2015) JOUNRAL PDF
Supreme Court judgment striking down the National Judicial Appointments Commission (NJAC) as unconstitutional split India’s legal fraternity down the middle. The churning that followed brought the spotlight on appointments to India’s top judiciary though the jury is still out on what will serve the interest of justice better. The issue at hand is not only of appointment and transfer of judges to higher judiciary per se but of making the judicial system kinder and more accessible to common man.
Those who believe business as usual would be a recipe for disaster saw an article of faith in the 99th Constitutional Amendment which constituted the NJAC. The idea of a dedicated commission was seen as one bold step which will stem the rot in India’s outmoded judicial system. After all it had the backing of both Houses of Parliament and was ratified by as many as 20 State Assemblies. In many ways the NJAC was a continuance of earlier efforts by illustrious former Chief Justices of India like Justices M N Venkatachaliah and J S Verma. The skeptics saw NJAC as a conspiracy of the political executive to overcome the primacy of the judiciary. They viewed the tricky practice of judges appointing judges as a better choice than the venal politicians subverting the process.
Never mind the sparring but the silver lining is that the supporters and the skeptics agreed on one thing: that the collegiums system, in its present form, is unacceptable. However, the only tangible issue to debate for now is how to improve the (defective) collegium system. We at Common Cause, initially saw merit in a strong and independent commission as it was possible to weed out conflicts and contradictions by reading down provisions. But once that opportunity was lost, we are back to the same question: How to make the process of judicial appointments more transparent and accountable?
In a country with the largest number of poor, uneducated and vulnerable people in the world, access to justice is a mirage. In theory every citizen is free to approach the courts but access to justice takes an opportunity cost. Besides skipping wages and covering long distances, poor litigants have to engage predatory lawyers and suffer unending harassment for every single ritual and every scrap of paper. Nothing comes easily or cheaply, right from identity or address proofs to official documents to protection of witnesses. What shakes the citizen’s faith in the system is the judicial corruption and inefficiency at every step of the long and winding way to justice. (Common Cause has also campaigned for setting up of inexpensive Gram Nyayalayas which are mandated to work at block levels and without the aid of lawyers)
It is in this light that we see the issues of fairness, transparency and accountability in judicial appointments. Common citizens tolerate delays or high cost of justice because they still see light at the end of the tunnel. But once that light is chocked, there is despair and loss of faith in democracy itself which is indeed perilous to all institutions including the judiciary. The impression which is gaining ground today is that the judiciary is unaccountable to citizens, is unable to root out corruption, nepotism or discrimination, and is reluctant to reform itself. Worse, still is the fact that the rot flows from the very top to the lower courts.
A sure spinoff of a fair and accountable process of appointments in higher judiciary is a cascading effect on other institutions. For a long time, Common Cause has been raising issues of opaqueness in appointments to heads of vital institutions like the Central Bureau of Investigation (CBI), Central Vigilance Commission (CVC), Lok Pal and Lokayuktas, besides other statutory and national commissions. It has challenged many such appointments in the past and is still spearheading many PILs in this regard. What matters more than anything else is the rigour of the process designed and empowered to select the best candidate while upholding the values of impartiality and institutional integrity.
When the Supreme Court opened up a small window of a couple of days to seek views from general public, academics and the civil society, Common Cause invited many institutions and public-spirited individuals for a brainstorming session to evolve suggestions for the Court. Our main partners in the endeavor were Vidhi Centre for Legal Policy, Inclusive Media for Change, Association for Democratic Reforms (ADR), Commonwealth Human Rights Initiative (CHRI) and the Centre for Public Interest Litigation (CPIL), among others. After a series of follow up consultations a representation was made pursuant to the Public Notice issued by the Department of Justice, on directions of the Hon’ble Supreme Court.
The main suggestions included adoption of a clear conflict of interest policy for the candidates and the selectors, RTI compliance and an advisory role for two SC judges to avoid cronyism in the interest of transparency. For improving eligibility it was submitted that suitability must include legal scholarship, independence, efficiency, integrity and record of public service and social sensitivity. For a better permanent secretariat, it was suggested that it should work under the SC’s supervision with clearly defined eligibility criterion and it must not become a fair game for retired bureaucrats. It was suggested that only complaints to be entertained should be about personal or moral integrity and that the mechanism should include the collegium with a provision for an ombudsman. It was also submitted that the appointment and complaint mechanisms must be mutually independent and that the system should be time-bound and not rushed. (For details please login to www.commoncause.in)
It is true that an improved appointment process alone would not change the way the justice apparatus works in India. We need to redesign the whole system which is free from colonial hang ups and which satisfies the anxieties of the most vulnerable. A mission mode approach to reforms and accountability mechanisms, institutional integrity and a sensible use of new technologies can work wonders for making the system more efficient and equitable. Videography of court proceedings, digitization and proactive disclosures of all data may go a long way in improving the appointment process of judges as well as in reducing the volume of cases piling up at all courts at an alarming speed.