A judicious overhaul

Over the years, the vital wings of the State — Parliament, the judiciary and the executive — have not taken steps to retain the respect of the people. People are disappointed especially with the judiciary because the court is their last resort when the other two fail. There are indications that the government intends to push judicial reforms in the next few months. Time was when any attempt made by Parliament or the executive to set things right in the judiciary was suspect in the eyes of the Bar and the Bench. Way back in 1970s, protests greeted any discussion on the judiciary’s commitment or when pliable judges were appointed.

It was in this context that the Supreme Court snatched from the executive the power to appoint judges to the high courts and the apex court. In 1993, the Supreme Court came out with a judgement that enabled it to appoint judges by consultations in a collegium, thus depriving the government any opportunity to pack the courts with their own men. This system of appointment is now under threat. The way the collegium has functioned over the last 17 years, it’s placed the judiciary on the backfoot.

Not all the appointments made by the collegium are questionable, but some of them have been the subject of cynical comments. It is extremely difficult to get rid of a corrupt judge, as was evident in the case of Justice V. Ramaswamy, since the impeachment process is rigorous. He survived the House’s attempt in the 90s because MPs from Tamil Nadu joined hands and protested to the then Prime Minister P.V. Narasimha Rao on a peculiar plea that a judge from the state was being hounded out. Interestingly, this move failed in Parliament just about the time the apex court came out with a verdict taking away from the executive’s domain the powers to appoint judges. That power has been exercised by the collegium of judges for nearly 17 years. But the quality of selections has not improved.

That the balance of power in the constitutional scheme of things is slowly shifting away from the apex court will be evident when Parliament chooses to debate the cases of Justice Soumitra Sen of Kolkata and Chief Justice P.D. Dinakaran of the Karnataka High Court.

The judiciary as an institution itself will be the subject of critical examination by the MPs during the discussion, further weakening its support base. Whatever be the outcome of the debates in Parliament on the two judges, the collegium’s utility is bound to come under serious questioning.

The apex court took away the power to appoint judges from the executive with the promise that it will select only the best. To ward off the executive’s interference, it also promised that it would deal with corruption and misuse of power in-house. On both counts, the judiciary has left much to be desired.

It also remains to be seen how Parliament and the government will set up a system that will help select the best of the judges without undermining its independence. Involved is the question of whether the system of institutional checks and balances will willy-nilly get disturbed in the judicial reforms that are in the works.

– Hindustan Times, June 17th, 2010