Dinesh Kamath's Editorial 'An attempt to improve the Judiciary' that was published in Newsband

An attempt to improve the Judiciary

The Supreme Court of India and the High Courts is described as the most powerful judiciary in the world. The legislature has passed the Constitution (121st Amendment) Bill, 2014 and The National Judicial Appointments Commission Bill, 2014 to regulate the procedure for recommending the appointment and transfer of the Chief Justices and Judges of these higher courts. The National Judicial Appointments Commission (NJAC) is supposed to do that job.  

Previously the system was a judge-devised practice of appointments. This model was a reaction to blatant favouritism by the executive that marked appointments until the Supreme Court decided to change the procedure. To avoid charges of favouritism, the collegiums relied on seniority, which only encouraged more mediocrity. As far as this bill is concerned, the fear is that the NJAC may encourage High Court judges to give pro-government rulings with the object of gaining eventual promotion to the Supreme Court. Several influential lawyers criticise the law for being a political assault on judicial independence and the constitutionality of the law is about to be challenged in court.

There were times when supreme court fought tooth and nail with the laws made and to make an altogether different interpretation to show the rule of interpreter . It kept a record of old judgement but again changed judgements whenever it wished too. The balance between executive and judiciary has always been a major point of concern. It is more than necessary to maintain democracy. From that angle, it appears that this Commission is indeed a welcome move by the government.

Many question as to why elected representatives whose job it is to legislate and create Laws should be involved in who and what kind of judge will get to sit as interpreter of those Laws? Making Law stems from the nature of elected representation as bestowed upon MPs and MLAs. Appointing interpreters of those Laws must be left only to those in that profession as practicing Justices and eminent Lawyers, and no politician should be allowed to give a whiff of his preference.

But there are those who feel that NJAC is definitely a great step ahead in justice dispensation and democracy building in our country. It goes beyond blatant executive cronyism and judicial favouritism in judicial appointments. Though avoiding nepotism in appointment is an essential need, bringing in merit into the judicial appointment is a more important task in building a just and equitable democracy here.

Judiciary being the protector of the constitution its independence is a part of the basic structure of the constitution. Having three members out of six in a selection committee who are either representative of the legislative or appointed by legislature not only infringes on the independence of the judiciary but also greatly affects the consensus with their veto power. With Legislature having equal say in the appointments, there is a scope of favouritism in lower court verdicts.

The right thing to do is that Judiciary must be kept away from political pressure. To solve millions of pending cases, more Judges are required. Retirement age of a Judge (irrespective of DC/HC/SC ) should be 60. A separate Justice commission should be established like UPSC to conduct departmental exams and interviews to appoint new Judges. The examiners should be retired judges only. This should be carefully designed to check favouritism and delay in judgment time, like allotting cadres etc. And above all, this should be purely on merit.