For last some years question of judicial accountability has been dominating news media notwithstanding the recent epoch-making petition filed by former Law Minister Shanti Bhusan before the Supreme Court in the ongoing contempt case against advocate Prasant Bhusan in which he has reportedly questioned honesty of eight of 16 past Chief Justices. As this event was widely published in media the matter is now in public domain and not simply confined to Bhusan and the court. Justice Krishna Iyer in response to Shanti Bhusan’s petition in an article published in The Hindu on 21.09.2010 classified the allegations as of “paramount importance” calling upon both the judiciary and executive “to take action or collapse”. With a sense of agony Justice Iyer said that this is not the time to retreat from responsibility or “relax or show amoral indifference” maintaining that if charges are frivolous, Mr Bhusan be punished or reform the system if there is substance. Justice Iyer, who all along in his career never compromised on certain basic values of justice and democracy describes the collegiums created by the Supreme Court as without constitutional support which according to him has “played havoc” and deserves “to be demolished”.
Supreme Court is the highest legal institution which carries trust and confidence of more than 100 crore Indians and has successfully overcome the test of time. We are proud of the historic role it played in moulding public policy and protecting citizens right, inheriting high legacy of founding fathers of the Constitution. HV Kamath, while speaking on June 7, 1949, in the Constituent Assembly had visualised: “Our judges wherever they might be in the states or in centre, must be models of judicial independence.”
The first Chief Justice HJ Kania addressing the inaugural meeting of the Supreme Court had echoed this legacy by asserting: “It will stand firm and aloof from party politics and political theories.” In this background it is natural that an iota of damage to the credibility of the apex court is a matter of deep concern, for those who love democracy and rule of law. India’s love for democracy is so deeply rooted that its people in their wisdom in past have thrown political executives of tyrinical charter to dustbin in their silent march to ballot box.
In a way the Supreme Court of USA is a political institution, from the manner in which its judges are appointed, but its functioning is absolutely non-political. The judges of USA are nominated by President. But their appointments are publicly screened, approved and confirmed by majority of Senate to hold their office “during good behaviour”. In contrast the appointment of judges in India is a close-door affair and does not pass through any public scrutiny and in the light of Justice Iyer’s opinion, the present system should go to avoid any such controversies.
Our Supreme Court, on many occasions have emphasised against the concept of one becoming judge to judge his own act holding it unfair the unacceptable (Air 1993 SC P 2159 to 2164 Refer). In the same spirit it would be better, reasonable and controversy free to regulate appointment of judges through a different institution. The Supreme Court always can step in to scrutinise and remedy such appointments in case of any complaint. Therefore a jurist of Justice Iyer’s eminence called for “parliamentary correction” to the present system on the ground that the collegiums are answerable to none. Much before Mr Shanti Bhusan’s episode, in another earlier article, published in The Hindu on 01.09.2010, Justice Iyer had also questioned the concept of judges judging themselves calling upon Parliament to wake up and implement “glassnost” saying that process of promotion of judges to the apex court is according to the “fancy of… collegiums”, asserting: “The collegium is a judicial creation and the syndrome of personality cult being beyond accountability.”
I am an ordinary citizen. Much before the above sad developments, I had a brief meeting with Law Minister at New Delhi on 04.08.2010 in connection with lawyers’ strike in Berhampur demanding a High Court Bench. Incidentally, I appealed to the Law Minister to pay urgent attention in bringing judicial reforms as delay is not in the interest of democracy. I had told him that if he can achieve this it would be historic. He was very kind enough to hear patiently, nodding occasionally.
So, in the very interest of credibility of this great institution and to keep it above controversy, the central government’s decision to bring judicial standards and accountability bill is a right decision at right time. It was approved by the cabinet on 05.10.10. Without going for complex mechanism, the proposed institution can be suitably empowered to oversee appointments, promotions and associated matters. However transfer of judges must remain with the Supreme Court.
The proposed body can be legally mandated to oversee appointments and hear complaints against judicial working. Its proceedings should be confidential. It can submit annual report to the President under whose seal and signature appoints are made. The Constitution of the proposed body can be broad-based. One each member to it can be nominated by the Chief Justice, President of India, Leader of Opposition, All India Bar Council and another retired judge nominated by presidents of different High Court Bar Associations, by a system of postal ballot. The Attorney General of India should be included in this body, while the Additional Secretary of Law, Government of India, can be its full-time secretary. The prescribed qualification for nomination to this august body should be that he must be either a retired judge of Supreme Court or a retired Chief Justice of High Court. Since details of the proposed institution and its scope is to be determined by the wisdom of Parliament, let us hope that the proposed enactment would be capable to eliminate various rust eating into credibility of the system. In this connection let me quote Charles R Ashman in his book on judicial pollution at page 263, who said: “The challenge of judicial reform must be met because it may be the last arena for the survival of democracy.”
By RC Panda
The writer is a former Deputy Speaker, Odisha