Senior judges have developed a cushy arrangement among themselves: you back the appointment of so-and-so advocate's junior, and I will back so-and-so judge's nephew, says Subir Roy
Whatever be his motives, former Supreme Court judge Markandey Katju has done the nation a service by highlighting the fact that the collegium system, created by the Apex court to safeguard the independence of the judiciary, has, in fact, allowed executive interference.
What is worse, this happened in order to let a corrupt judge go on being a judge, so that the government of the day was able to go on being in power.
There is wide agreement that the collegium system, created by the judiciary in the 1990s to end political interference of the worst sort under Indira Gandhi, was a great improvement on the earlier system of the executive appointing senior judges.
But it has become clear over time that the collegium system has developed its own flaws, and a better system should replace it.
The collegium works non-transparently, and so there is no knowing that even its own laid down system has been followed in all cases. So a more robust system needs to be instituted, which can then be transparently followed.
This absence of robustness and transparency has resulted in the lowering of standards for the appointment of senior judges. Consequently, a streak of corruption has penetrated the higher judiciary.
In all the talk about political interference and corruption after judge Katju's revelations, one aspect of the present system has not been highlighted -- the favouritism it has generated -- according to those familiar with current realities.
Senior judges have developed a cushy arrangement among themselves: you back the appointment of so-and-so advocate's junior, and I will back so-and-so judge's nephew.
As a result, there are now self-perpetuating streams in the higher judiciary, which makes it a bit of a closed fraternity. To become a judge, you should, among other things, have connections with the right people in the bar and on the bench.
What can be the contours of a better system? The most clearly defined new system is the constitutional amendment Bill that seeks to create a judicial appointments commission, and a Bill to give shape to the commission.
It is seen to have two flaws.
One, highlighted by Ram Jethmalani, is that while the constitution will sanctify the commission, its composition (set out in the Bill) can be changed by any dispensation that can command a simple majority in Parliament. He is also unhappy with the proposed composition of the commission -- the chief justice of India, the two seniormost Supreme Court judges, the Union law minister, and two eminent persons (nothing more stipulated) nominated by the prime minister, the chief justice and the leader of the opposition in the Lok Sabha. Where is the space for eminent jurists, lawyers and those from the social sciences?
An equally serious objection is that such a system can be compromised by deals struck between the ruling party and the opposition. The judge in question was first appointed to the high court under the National Democratic Alliance's rule at the Centre when the Dravida Munnetra Kazhagam was an NDA ally.
Thereafter, though he was found to be corrupt, three chief justices let him pass through, so as to accommodate the political system under the United Progressive Alliance's rule.
Another model, which has not received sufficient mileage, is an All India Judicial Service that takes in the most talented people through public examination -- who begin at the subordinate judiciary level, and can aspire to become not just district judges but also to the high courts and the Supreme Court.
The recruitment to this cadre and its administration can be put in the hands of a judicial commission that functions like the Union Public Service Commission; and it can have state level commissions under it.
Everything depends on how this commission will look and how its members will be appointed. Prashant Bhushan draws attention to the fact that the "UK and many other countries now have full-time independent judicial appointment commissions, which invite applications and nominations that are evaluated on a set criteria. The entire process also has transparency".
For this you need a "full-time body", not an "ex officio body", as proposed in the judicial commission Bill, made up of sitting judges, ministers and "eminent" people nominated by the political class, acting in a non-transparent manner.
Who will man this independent commission and how will they be selected? Eminent jurists, lawyers, social scientists, social workers (say, an Aruna Roy or Ela Bhatt) and retired judges can form the pool to choose from.
The difference will be that while under the proposed judicial commission every judicial appointment will be approved by it, under the independent commission idea, once the commission is appointed, it will make all the appointments without reference to anybody.
Also, it can be stipulated, when independent commission members retire, they will truly retire.