An extremely complex, diverse, federal polity which is struggling to reconcile short-term expediency with long-term imperatives of nation building needs a credible, independent and impartial judiciary. The nation has so far been well-served by the judiciary. But certain distortions and glaring inadequacies are endangering the credibility of higher judiciary.
The Supreme Court judgments relating to appointments of judges of higher courts and the subsequent practice of the judiciary having the final say in matters of judicial appointment have raised questions of Constitutional propriety. Even more important, there is significant disquiet about the quality of judges appointed. In recent times, serious questions have been raised about the impartiality, and ability of judges of higher courts. Of late, even the integrity of some of the judges has come under public scrutiny. The recent allegations of serious impropriety or even the taint of corruption, of some of the highest judicial functionaries in the land is a source of grave concern to all lovers of liberty and champions and constitutionalism and rule of law.
Protecting the credibility of the judiciary is a matter of great national importance. If the general public loses confidence in the integrity and impartiality of the higher judiciary, there is every danger that the nation will fall apart. Therefore protecting the image of the higher courts, enhancing the quality of judges, and ensuring their impeccable conduct are matters of great public importance which need to be addressed immediately..
The three central issues that need to be addressed in this regard are as follows:
The Supreme Court of India and the High Courts set the standard for judicial conduct and competence in the country. We must see that only candidates of the highest integrity and ability are appointed to these courts and that, once judges, they perform their duties with honesty, dedication and skill. This requires a degree of scrutiny in judicial appointments and oversight impossible under the current system. It is vital that we create a National Judicial Commission, combining input from the elected branches of government and the judiciary, to appoint and oversee the judges of the Supreme Court and High Court.
· The Chairman of the Rajya Sabha (Vice-President of India) as Chair of the Commission
· The Prime Minister or the Prime Minister’s nominee
· The Speaker of the Lok Sabha
· The Law Minister
· The Leader of the Opposition in the Lok Sabha and Rajya Sabha
· The Chief Justice of India
· The Chief Minister of the concerned State
· The Chief Justice of the concerned High Court
The NJC can be authorized to solicit views of jurists, representatives of the Bar and the public in any manner the Commission deems fit. Also, NJC can have the option of inviting two jurists to be non-voting members.
One question which needs to be addressed is whether the advice of NJC should be binding on the President. In this respect, the procedure adopted for the Judicial Appointments Commission of England and Wales seems well-suited for our situation. Upon the Commission’s recommendation, the President can either appoint the candidate, or return to the Commission for further consideration, or reject the candidate. Rejection or returning a name should be backed by reasons recorded in writing and communicated to the Commission. If rejected, the Commission cannot resubmit the candidate. But if a name is simply returned, the Commission would be free to resubmit a candidate returned for reconsideration. The President should then appoint a candidate whose name has been resubmitted for appointment.
Then we need to address the question of oversight of the higher judiciary. Clauses (4) and (5) of Article 124, Article 217 and Article 218 govern the procedure for removal of judges of Supreme Court and High Courts. However, past experience shows that this mechanism has failed, and the Parliament could not effectively exercise oversight functions in respect of judiciary. Given this background, it would be most appropriate if NJC is entrusted with the responsibility of oversight of judiciary. The Judges Enquiry Act could be suitably amended to empower NJC to constitute a committee comprising of a judge of the Supreme Court, a Chief Justice of a High Court and an eminent jurist to investigate into complaints. Upon receiving the report of the Committee, NJC would consider it, duly giving an opportunity to the judge concerned to present his case. The NJC can then recommend dropping of charges, or censure or removal. Dropping of changes or censure would require a majority support, while removal would require support of two-thirds of the members of NJC. The recommendation made by the NJC will be binding on the President. Such a procedure will harmoniously reconcile the requirement of restraint and balance in dealing with the higher judiciary with the need for effective, independent and bipartisan oversight of judiciary.