The collegiums' appointment of judges in India has failed on several accounts, writes Dammu Ramakrishnaiah.
The Collegium system of judicial appointments has miserably failed in India. Justice Karnan, who is in the news for all the wrong reasons, was the choice of the Collegium. Similarly, AP Shah -- who many consider more than deserving to be chosen as a Supreme Court judge-- was ignored by the same Collegium. The parameters of selection or the basis of rejection are secretive, mysterious and unknown to the vast majority of aspirants.
Recently, the way in which a collegium of Karnataka High Court recommended the elevation of nine advocates from the Bar to the high court as judges, is also questionable. Six out of nine belong to the same caste as the Chief Justice and the rest are kith and kin of judges. The subsequent allegation of casteism, favouritism, nepotism and the complete lack of transparent methodology are indicative of an archaic system which is in urgent need of modification. Higher Judiciary needs to be inclusive in its approach, not elitist and power hungry by using the obsolete and archaic methods such as 'contempt of court' to establish its authority. Justice AP Shah has aptly said: "The need to respect the 'authority and dignity of the court' is borrowed from a bygone era; it has no basis in a democratic system. The law of contempt should be employed only to enable the court to function, not to prevent criticism."
Need for inclusive approach in criminal justice system is of utmost necessity, and this can come about only if the judiciary is itself reflective of the diversity of a nation. Even in the world's most developed nation such as the US, the Afro–American citizens perceived more racial biases in the criminal justice than in any other institution. In India, with more than 5000 castes, a feeling of judicial inclusion is imperative, as currently India's criminal justice system is mostly available to the rich and famous, while the poor and ignorant do not even approach higher judiciary fearing complete alienation. With about 30 million cases pending in various courts across the country, Indian judiciary is struggling to clear a huge backlog involving perhaps more than 100 million people.
However, instead of dealing with their stupendous backlog, the judiciary seems to be more and more interested in daily governance and monitoring. The judicial overreach has reached such ridiculous proportions, leading to Supreme Court running the BCCI, ruling on national anthem, barring fire crackers in the national capital region etc. Lakhs of people holed up in jails merely for the fact that their turn for trial itself hasn't matured, is a sorry state of affairs. On an average, it takes nearly 20 years from the lowest court of the country to the highest court for a case to be disposed casting severe doubts on the efficiency and efficacy of our judicial system.
Judiciary has been demanding transparency everywhere but isn't willing to allow transparency and introspection within. The Collegium based system of appointments in higher judiciary is only a reflection of nepotism, favouritism, and networking and is devoid of any merit, transparency and professional standards. In spite of this, while defending the collegium system, Justice JS Khehar said:"In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary to safeguard the rights of the citizens of this country can only be ensured by keeping it absolutely insulated and independent, from the other organs of governance."Isn't such a view by the Honourable Supreme Court an insult to the electorate which has since independence shown remarkable maturity during various elections in overthrowing the irresponsible governments time and again? It's time that higher judiciary came down from the mantle of lordships and stopped treating citizens as subjects.
Criticising the collegium system, Justice Chelameswar said that "proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks". It is time to chuck the collegium system out. Nowhere in the world does a judiciary appoint its own brethren, yet it happens in India. Except for higher judiciary, every public office in India right from the clerk to that of President of India requires a screening test. Even the politicians are made to follow the rules of the Election Commission and undergo rigours of polls before taking their seat.
The Collegium system of selection for the higher judiciary has come in for a lot of criticism on the premise that it lacks objectivity, fairness and impartiality in selection. But its cure does not lie in restoring the balance in favour of the executive, but to put in a system which is objective and transparent. It is against this requirement that the argument for the introduction of All-India Judicial Service assumes significance. This five-decade-old demand has always been shelved and never made to see the daylight on account of vested interest masquerading in the name of independence of judiciary, and maintenance of the federal structure. Whenever the formation of AIJS was objected to, judicial independence was ostensibly espoused while in reality it was the desire of the judiciary to perpetuate nepotism and favouritism.
The proposal for the establishment of a National Judicial Service was envisaged in Article 312 of the Constitution, but never given a serious examination that it deserves and hence never implemented. Early this year, the Supreme Court questioned the feasibility of AIJS stating that "the High Court is the top court of a state and doesn't work under the control of either Supreme Court or the Centre, and that AIJS may affect its powers". When it comes to the creation of AIJS, Supreme Court says that the High Court's powers would be curtailed, but when it comes to controlling an errant judge like Karnan, the apex court wants to exercise its power.
Shouldn't the court have referred Justice Karnan's case for parliamentary impeachment proceedings? Strong and independent courts are required, but not at the cost of lack of transparency, fairness, merit and inclusivity.
(Dammu Ramakrishnaiah is former Vice Chancellor and State Sahitya Academy Awardee. Views expressed are strictly personal.)