Transcript of H K Dua’s speech during the debate in the Rajya Sabha on Constitution Amendment Bill on setting up of a Judicial Appointments Commission.
Appointing better judges is the key
By H K Dua
H K Dua (Nominated): Madam Vice-Chairperson, I thank you for giving me an opportunity to speak although I wish you don’t mind the clock too much.
Madam, kacheri is the last hope of the people. When other institutions fail – and often they fail, Parliament, the Executive, even the media — the common man goes to the kacheri and with some hope. I am afraid, the judiciary also has developed all the weaknesses which mark the decline of the other institutions.
Three crore cases are pending in the courts, in the lower judiciary, the High Courts and the Supreme Court. These are not just cases Actually, three crore families are affected, that means, nearly 12 crore people are affected because of delay in justice. There also must be crores of people waiting outside for justice; they do not go to the court simply because they are not expecting fast justice. Or, because it is costly. They do not have resources even to seek justice!
It is not only the cases and the arrears, but the quality of justice is also important. Lately, the people are feeling disappointed with the courts for the kind of quality of justice that has come out. I will cite just a few notable cases – the Jessica Lal case, the Priyadarshini Mattoo case. These trials have disappointed the people. These cases were raked up only because the media protests. I cannot understand how a BMW car becomes a truck as the trial proceeds. There can’t be greater travesty of justice. Six people killed by a BMW car, and the culprits get away with very light punishment after the lawyers were able to prove that it was not even a BMW car, it was a truck. I don’t think these people or witnesses were suffering from some kind of optical illusion that they can’t make out a difference between a car and a truck. But that is what happened during the trial. In many cases, it is happening like that across the country.
Recently, a Supreme Court Chief Judge retires, he simply passes orders on the eve of his retirement and a new Chief Justice takes over and reverses those orders in two or three days. . Now reversal of orders often happens in the courts, but not after such a short time. But the remarks of the new Chief Justice reversing the predecessor’s orders were more interesting: that their lordships were aware of the circumstances in which those orders were passed. Now it is not the media reporting, but these are remarks of a new Chief Justice on the orders passed by a Bench headed by the previous Chief Justice. Now, which orders should the people believe? This is the kind of quality of justice which shakes the faith of the people in the Court, which is the last court of appeal.
As the Leader of the Opposition was saying, well, there is a finality about what the Supreme Court decides and after that there is only God who is the final authority. If the people’s faith get shaken in a major institution, a watchdog-like court, the kacheri, I am afraid, they will be disappointed with the entire democratic system. Like other institutions, the judicial system needs reform, a serious reform from top to bottom, and the reform must start from the top.
The Collegium system is where the Judiciary has acquired for itself the power to appoint judges, which is very rare in the world’s judicial systems. I still cannot understand and many cannot understand, as it has been pointed out in the House earlier, the vocabulary; it is not the semantic difference; there is a vast difference between ”concurrence” and “consultation” — just to win the argument with the Executive. If consultation is interpreted as concurrence by the Court, there is self-interest of the Judiciary that is involved. Essentially, the Judiciary was fed up with the Executive’s appointment of the judges to the Court.
But so far as the new Bill is concerned, I am glad the Law Minister has changed his view he had held 20 years ago – in 1993. Now he is on the other side of the argument. But I am very happy he has developed second thoughts. And second thoughts are also a fundamental right of the Law Minister! Now, he has interpreted, correctly, that we need to evolve a system where the executive can’t interfere with the appointment of judges and get away, as well as the Judges don’t appoint themselves. We cannot give the right to the Generals in the Army to appoint their own colleagues at the top. They have to be appointed by the executive. Here in the Bill is a system that is being evolved where a Judicial Appointments Commission is being set up for the appointment of judges to the Supreme Court and the High Courts. There is the Executive, the Chief Justice, there are two eminent men from outside who will be selected by the Prime Minister and the Leader of the Opposition, etc. Everybody here knows the provisions in the Bill by now.
This system can provide us more independent-minded judges. This is an opportunity which needs to be utilized for judicial reform, but the Law Minister’s Constitution Amendment Bill — which I will support, has only one aspect of the reform i.e. appointment of judges which is very important.
I hope the Courts will take steps to reform the working of the High Courts. The image of the High Courts is very, very poor in the States. The image of the lower Judiciary. where touts are roaming around, is worse. They are ready to do anything you want them to do. Justice is often bought and sold by them. Reform of lower Judiciary is urgently needed. I wish the Law Minister undertakes these reforms fast.
I will draw now the attention of the Law Minister and the House to another Bill. A few months ago, I had moved a Private Members’ Constitution Amendment Bill, which the entire House supported. From each side of the House, Party supported it and that was on the Removal provision for an errant judge. Even Shri Ram Jethmalani supported that Bill although he said he is going to oppose the Law Minister’s present bill on the appointment of judges. I am very thankful to him for supporting my Bill on the removal of corrupt judges. This House almost unanimously had passed the Motion to remove Justice Soumitra Sen of the Kolkata High Court from the Bench. And it was unanimous. Before the Motion could go to the Lok Sabha, Justice Sen resigned.
Now where does the impeachment or removal provision in the Constitution stand when any judge, who is sought to be impeached by one House frustrates the entire removal process and gets away simply by sending in his hand-written resignation to the President. Justice P D Dinakaran, who was waiting for being impeached, judged the mood of Parliament and he also resigned. Now, the entire House supported my Bill and Mr Sibal’s predecessor had no option but to promise that the Government would bring an official Bill on the removal provision. I wish Mr Sibal could tell us as to when he is going to live up to the governmental promise and bring a Bill where the impeachment power of the President is translated into action.
Sir, I support the present Constitution Amendment Bill for setting of the Judicial Appointment Commission before the House.
(Mr Sibal remained quiet on the removal of judges.)
Thank you, Madam Vice Chairperson.