Millennium Post

Time to judge the judge

Former Supreme Court judge, Justice Markandey Katju’s allegation of corruption against a former additional judge of the Madras High Court and the manner in which he was protected by members of the higher judiciary as well as Tamil Nadu’s political leadership of the time is a matter of great concern with implication with regard to the independence of Indian judiciary. Justice Katju’s allegations, which come nearly 10 years too late, point an accusing finger at the Manmohan Singh government (then UPA-I) which buckled under the Tamil Nadu party’s  blackmail tactics.

These serious allegations raise a doubt about the autonomy of the judges who are trusted upon to carry out their public duties and functions independent of dishonest or ideological considerations. But Justice Katju’s allegations advocate that India’s higher judiciary is in a state of deterioration. They bring into attention the vital necessity on the part of the government to pledge moves to quickly pass two important bills – the Judicial Appointments Commission Bill of 2013 and the Judges Standards and Accountability Bill, 2010.

As of now the Supreme Court of India’s collegium system, which appoints judges to the nation’s constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases. Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993. There is no mention of the collegium either in the original or in successive amendments.

The government through the Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary. The critical aspect about the new setup that the government through the amendment seeks to achieve is the composition of the Judicial Appointment Commission, the responsibility of which the amendment bill lays on the hands of Parliament to regulate by way of Acts, rules, regulations etc., passed through the regular legislative process. It establishes a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary.  It empowers Parliament to pass a law providing for the composition, functions and procedures of the JAC.

The Judges Standard And Accountability Bill 2010 lay down judicial standards and provide for accountability of judges, and, establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or of a High Court and to regulate the procedure for such investigation; and for the presentation of an address by Parliament to the President in relation to proceeding for removal of a Judge and for matters connected therewith or incidental thereto.

All these measures will increase accountability of Judges of the High courts and the Supreme Court thereby further strengthening the independence of the judiciary. The proposed Bill would strengthen the institution of judiciary in India by making it more accountable thereby increasing the confidence of the public in the institution It has been 67 years since India’s Independence. The three pillars of democracy the judiciary, parliament and executive are well defined under the Constitution of India and so is the separation of power of each institution. Unlike the West there is very little debate in public domain the way the Judiciary functions in our country.

The journalist, politicians, common man and even lawyers desist from open discussions regarding the appointment, transfer, alleged misconduct of some of the judges inside or outside the court room or for that matter very little is debated in public discussion even on national television about particular judgment which appears detrimental in national interest because of the fear of contempt of court.

Has the democracy matured in India? The recent poll indicators suggest that for the first time in last couple of decades the people of our country especially the youth rose above the caste politics and voted for vision, hope and aspiration for building a vibrant and strong nation which could truly be the world’s largest democracy.

India has come of age and so has the time arrived for a National debate regarding the transparency in the judicial system.

It is not the time to go into the merits of the allegation leveled by Justice Katju, or why it took him ten years to voice the matter, whether UPA or NDA led-government were responsible, what is more important is are there certain deficiencies in the present system and how we can improve upon them to instill the confidence of the people in the judicial system. Some legal experts even suggest that the manner in which the proceedings of parliament are shown live on television, the court proceedings of the high court and the apex court must be broadcasted live in order to demonstrate that ‘Not only must Justice be done; it must also be seen to be done’.
The author is an advocate
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