V.R.Krishna Iyer on Judicial Appointments

Yesterday's op-ed by V.R.Krishna Iyer is probably one of the very few in recent times where his views have some merit. Much of what he says is not new and the case for judicial commissions have been pushed by others most prominently Prashant Bhushan who has also been in the forefront of this campaign.

The idea of judicial commissions has been pushed as an alternative to both the existing system of judges appointing other judges as well as the earlier system (which is what the framers originally envisaged) of the executive branch making appointments. The accusation of favoritism has been made in both cases and now, the charges of corruption that we increasingly hear are being laid at the door of the judiciary which devised the present opaque system of appointments. To be sure, charges of judicial corruption have grown enormously in recent years to the point that such charges have been routinely made in the bar long before they started to appear specifically in particular cases in the press.

I write here to address a few of these points some of which no one in the media appears to have written enough about. The first is whether corruption is a feature exclusive to the present set-up. My guess is that it is not. When other instititutions of the state have been corrupted, it was naive of the judiciary to think that it could remain free from the same problem for long. Surely, the same wind would blow its way sooner rather than later and indeed, that is what appears to have happened. So is an alternative set-up such as a national judicial commission likely to solve or mitigate this problem? No one knows but it would be one way to establish a clear process, make it transparent and more accountable. That by itself is not sufficient to resolve the problem but the sigificant political component of such a commission would ensure a greater degree of accountability. That might very well happen even with the present system given the level of public scrutiny but if the collegium chooses to ignore the matter and persist with the appointment, there is absolutely nothing anyone can do about it except protest to various authorities (the bar can go on strike but it cannot change the fact).

The second is the question of judicial merit. No one seriously disputes that judges today lack the stature, qualities and performance of their counterparts in the early post-independence era. At that time, a High Court appointment was considered a very prestigious assignment; today in contrast, most lawyers do not want to join the bench and those who do are not particularly skilled at their job. The question though is whether this is due to the present system of appointments. In my view, it is not. Candidates are chosen from amongst the pool available for the office regardless of whether the choice is ultimately made by political leaders or by judges. Most candidates chosen in recent years have had reasonably good credentials even though their performance on the bench may have been below par. Reasons for this have to do with factors other than the appointment system such as the quality of legal education, understanding of the role of the judiciary, case overload, etc. Does this mean that a national judicial commission will not change the kind of judges that we have on the bench?

My guess is that it might very well change the sort of lawyers who are being appointed to the bench but whether that is for the better or worse would depend on how one interprets those terms. Those who are pushing for the national judicial commission such as Prashant Bhushan and Krishna Iyer have their own reasons for dissatisfaction with the present system. Very important amongst these is the failure of present-day judges to espouse the philosophy of judges of the earlier Krishna Iyer/Bhagwati era. Their belief is that a judicial commission which restores the system of political appointments would make it easier for them to aggressively push for judges sharing that worldview. There is a good possibility that this might happen. No political party including the BJP is prepared to confront socialist rhetoric and they are more likely than not to succumb to pressure particularly when a media campaign is launched.

Thirdly, a word about multiple commissions not only for appointment but also to assess performance and to inquire into the assets and liabilities of judges. A commission for appointments is more justifiable than for the other two. For one thing, there is no unique or universally accepted method of assessing judicial performance. It is much easier to lay down quantifiable criteria than qualitative ones but in a judicial system, the latter is no less important than the former. A judge forced to dispose a certain number of cases could end up sacrificing the quality in the bargain (in fact, that may be happening already since case disposal frequency is believed to be one of the considerations in elevation of judges to the Supreme Court; the Sikkim High Court is considered a punishment posting because there are so few cases there and it undermines a judge's chance of elevation to the Supreme court if appointed there). A commission to inquire into assets and liabilities suo motu has its own problems. It is a cardinal principle of law that no individual ought to be investigated without reason. To inquire into assets in the absence of any complaint is to subject judges to undue harassment.

Lastly, a word about a national judicial commission for appointments. One of the concerns with proposed models is a parity of the government and everybody else, i.e., the opposition is also granted a place along with the higher judiciary and possibly other 'eminent' individuals to decide the matter. But in any democracy, an elected government has greater democratic legitimacy than parties that lost the election as well as those who have not contested it. To put them all on the same pedestal will have the effect of undermining the preferences of the electorate. Clearly this is a flaw in the proposed system. One way to resolve it would be to allow the government to make the choice and thus determine the ideological orientation of the appointed judges while guaranteeing a say for everyone else involved in the process in determining whether the individuals exhibit the requisite integrity and qualifications for office.

As Krishna Iyer notes, a constitutional amendment is required for any such change which has so far proven to be elusive. That position is unlikely to change in the immediate future but more episodes such as those of Dinakaran and unsatisfactory answers from the judiciary may provide a push to such efforts.