Selecting judges for the highest levels

WITH EYES WIDE OPEN

D. N. Bezboruah

Writing about the judiciary is generally a fearsome matter in India. One is never sure when and how some kind of contempt of court (or of the judiciary) has been committed and when one can be sent to jail. However, in recent years, the judiciary in India seems to have become less touchy about constructive criticism as long as specific references to particular courts and judges and verdicts are avoided. I too have had to remain in fear of the courts since in my 22 years as editor of The Sentinel I have had a few occasions to be critical of courts and the judiciary and have even taken calculated risks in the matter of committing possible contempt whenever the compulsion to say what needs to be said in larger interests has outweighed the fear of committing contempt. One of the several such cases that comes readily to mind is an editorial that was critical of the arguments offered in the Supreme Court for the quashing of the Illegal Migrants (Determition by Tribuls) Act of 1983. I had been chilled to the bone by the fact that the learned counsel had missed out three very important arguments for the quashing of the IM(DT) Act. I had sent a cutting of the editorial to the senior advocate concerned who later offered me an opportunity of telling him what arguments he had missed. But what had come as a pleasant surprise was that there was no action against me for contempt of court despite my criticism of the arguments offered in a case that was being tried. Actually, in my fairly long experience of law courts in India I have had every reason to regard our magistrates and judges as fairly tolerant even when minor acts of contempt of court might have taken place at times.

The news that the Supreme Court has taken a rather dim view of the Union government’s iction about the appointment of high court judges should not come as a surprise to those who are only too well aware of the law’s inordite delay in India caused largely by a terrible shortage of judges at the higher levels. On Friday, Chief Justice of India T. S. Thakur berated the government of India for stalling the appointment of judges, saying the delay could “shut down” the courts. He even threatened to break the “logjam” through an unparalleled judicial order. “High courts are functioning at 44.30 per cent of their sanctioned strength. Things have come to such a pass that a person has completed his life term before the court can hear his case,” Chief Justice T. S. Thakur told Attorney General Mukul Rohatgi. “You can’t bring the situation to a stage where courts are shut down. Don’t force us to pass orders to remove this logjam, “ the Chief Justice added.

As is well known, judges are appointed on the recommendations of the Supreme Court collegium, which are administrative decisions. It has never happened before that the Supreme Court has had to threaten a judicial order making any recommendation mandatory so that a violation would invite contempt proceedings against members of the government. The strong remarks of Friday came against a backdrop of deteriorating relations between the judiciary and the Union government since last October, when a Constitution bench struck down the proposed tiol Judicial Appointments Commission that would have given the Executive a say in the appointments and transfers of judges. At present, the judges- only collegium recommends the appointments and transfers of high court and Supreme Court judges, with the government only allowed one request for reconsideration per recommendation, which must be accepted if the collegium reaffirms it. The Chief Justice of India is understandably chagrined by the fact that the Centre had been sitting on the collegium recommendations. The Supreme Court bench which included Justices A. M. Khanwilkar and D. Y. Chandrachud, told Mukul Rohatgi that some 313 recommendations for appointments awaited government clearance. According to some sources, 40 transfers too were pending. “We have sent back 78 mes (after recommendation); 234 are pending with the government... This is totally unfortute and is defeating the system,” the bench said. “Don’t force us to ask where the files are... Don’t force us to judicially intervene... Don’t try to bring this institution to a grinding halt... That’s not the right thing to do.” Attorney General Mukul Rohatgi admitted that “this sends a different message—a logjam” and sought time to “take up the matter at the highest level”. All this happened when the court was hearing a public interest petition moved by a retired army officer that sought ways to clear the backlog of cases through an improvement in infrastructure. Justice Thakur said that there were 478 vacancies in various high courts, and some were without chief justices. “In February, some judges were transferred and still they are not considered,” he said. “We think work should be withdrawn from these judges. Convey to those concerned (the government).”

After the October 2015 verdict (when a Constitution bench of the Supreme Court struck down the proposed Judicial Appointments Commission), the apex court had, as a concession, asked the Centre to redraft the memorandum of procedure fixing eligibility criteria such as age and qualifications for judges, subject to the collegium’s approval. Instead, the Centre has been sending queries to the collegium as to whether it can reject mes of judges on grounds of “tiol security”and install a mechanism to hear complaints against judges. The game of one-upmanship can be played by different agencies of the government and at different levels. Apart from satisfying the egos of individuals, such games are totally unproductive as far as benefits to citizens are concerned. There are things that the Judiciary can be coerced to do just because it is the Executive that holds the purse strings and there are things that the Judiciary cannot be coerced to do. On the other hand, there are orders of the Judiciary that the Executive is bound to carry out in order to avoid any kind of a constitutiol crisis. It is perhaps necessary to modify the process of selecting judges at the highest level, but until the Executive and the Judiciary are able to arrive at an agreed altertive process that is satisfactory to all concerned, the existing mode of selecting judges of the high courts and the Supreme Court through a collegium will have to continue. Perhaps there is need for a tionwide referendum on whether the existing mode of selecting high court and Supreme Court judges should continue or whether there should be one or two selectors also from the Executive to select judges for the high courts and the Supreme Court. But until there is an agreement on this issue it will not do either for the Executive or for the Judiciary to create obstacles in the process of delivering justice. The Executive must do everything in its power not to delay the appointment of judges to the high courts or the Supreme Court or hold up their transfers. Instead, the Executive must do everything in its power to reduce the law’s delay and to increase the number of judges for high courts and the Supreme Court within the next two or three months.