The murky truth behind appointment of judges

The chief justice of India, TS Thakur emotionally broke down last Sunday as he lamented that judiciary had been made the scapegoat for increasing pendency of cases.

The CJI said that the present judicial strength of 18,000 cannot dispose of a pendency of more than three crore cases. He stated that while the Law Commission had sought 40,000 judges in 1947 and recommended a ratio of 50 judges for a population of one million, the present judge's ratio is abnormally low at 15 judges, while the country had added another 25 crore to its population since.

Therefore, how is it possible for the present judiciary with such a meagre strength to dispose of the pendency cases.

The CJI conceded that the problem had a historical angle, which was mostly on account of confrontation between the government and the judiciary as to who should have primacy in the appointments of judges to Supreme Court and high courts. This, according to him, was the sole reason for mounting delay in filling up of vacancies.

While these observations by the CJI are absolutely right and one has to also look into the reasons for the confrontation, unfortunately, in this country everyone wants power and nobody wants to let go off the privileges of power.

The important question that nobody seems to be bothering about or answering is that why should the government or collegium have any power in the appointments to the judiciary?

The government should do its functions and judiciary should go about its task of deciding the cases impartially and neutrally. The appointment matters can easily be left to the domain of an independent body which needn't be influenced either by the government or the judiciary. But, unfortunately, neither the government nor the judiciary is keen to have such a body because neither of them want to let go off their say in judicial appointments.

Unfortunately, in our society, people and institutions want rights but not much responsibility. Important positions are often garnered, captured by the privileged people of influence and would they would like to perpetuate their fiefdoms - be it appointments to judiciary, continuation of political legacies such as sons of prominent politicians becoming MLAs, MPs or even chief ministers, or for that matter sports associations, federations and Bollywood as well where star kids have it much easy than the other struggling ones.

Everywhere the story is same - constitution of privileges while paying lip service to transparency.

Prior to the collegium system attaining control over the judicial appointments, judiciary had demanded the introduction of All India Judicial Services (AIJS) and this demand has been raised in the Parliament and in several quarters since the last five decades.

Interestingly, ever since the collegium attained power in the appointments to the judiciary, it no longer talked about the introduction of AIJS. Rather, at every opportunity, the proposal was struck down by both the judiciary and the state governments as they now found a very convenient way to surreptitiously push in their candidates.

Why would state governments and high courts repeatedly refuse the introduction of the AIJS defies any logical explanation when it's introduction could have inculcated transparency, objectivity while ensuring neutral appointments, and above all, attract the brightest of talent from all parts of the country.

The AIJS was never made to see the light of the day as the introduction would reduce any scope for judicial or executive intervention in the appointments to the judiciary in the high courts and Supreme Court. The current impasse on account of the National Judicial Appointments Commission can only be seen as a tug of war between the executive and the judiciary.

Perhaps over the last two decades, the judiciary has been having far too much say in the judicial appointments and the executive seems to be having a problem with that. A survey needs to be done in the appointments of the judges in the high courts and Supreme Court over the last couple of decades as to ascertain as to how many judges with familial links in the judiciary & political elite got appointed.

Nobody knows the truth, but it's often spoken in whispers that significant number of kith and kin belonging to few judicial and political families have found their way in higher judicial appointments very smoothly. Is this the desire on the part of the judiciary to perpetuate nepotism and favouritism that is stalling the five decade old demand for introduction of the AIJS?

Delay in the introduction of the AIJS is grave injustice to the lakhs of students enrolled as law students and aspiring to become judges.

Currently the brilliant of law students can only aspire to become judges of the lower level judiciary. For High Courts and Supreme Courts, the gates are almost closed.

It is pertinent to examine that 75 per cent of the judicial appointments in the high courts are entirely made from the lawyers category who do not write any examination. 

Those who have passed competitive examination at the lower level can only hope to fill up 25 per cent of the posts reserved for them in high courts and the rest 75 per cent are chosen from within the bar chosen by the collegium - are they nominated on the basis of professional competence, integrity or sycophancy, favouritism or nepotism? One needs to know.

For all these years and decades, one has not known on what parameters the lawyers were appointed to the high courts. Has the collegium system examined all the eligible lawyers? What criteria was adopted by them? 

Nobody knows.

The secrecy of the judicial appointments was compounded by the fact that the judiciary has never been under any proper scrutiny. It is outside the purview of CVC, CBI and departmental inquiry system. It's completely closed-door and the only way to remove a judge is through the mechanism of impeachment.

With the divided Parliament we have been witnessing since 1989, this aspect has almost been a non-starter giving rise to unfettered freedom of operation and arrogance to judiciary.

The need for filling up of vacancies in the high court and Supreme Court has to be seen from this background.

There is no doubt it is necessary to fill up vacancies, but they need to be filled up in a transparent and non-partisan manner devoid of nepotism, favouritism and family links.

Merely lamenting the huge vacancies and backlog in appointments is not enough, judiciary should be ready to sacrifice its power of the collegium system towards a more transparent, non-partisan and neutral system of appointments.

What else can be better in this regard than the introduction of AIJS. Candidates selected by an independent body, such as the UPSC, can be professionally trained and be appointed directly as additional district judges who can subsequently rise up to become high court and Supreme Court judges through a well laid out transparent system.

Introduction of an annual AIJS examination will ensure that the vacancies in the country will routinely and automatically get filled up in an objective manner and the current tug of war between judiciary and government for primacy over judicial appointments will seize to exist.

Since AIJS officers cannot be directly posted as high court or Supreme Court judges, an interim arrangement can be made for neutral appointments only for a brief period, say one year.

Since judiciary has to play a very important role in providing justice impartially and neutrally in this diverse and complex country, it is of paramount significance that the judicial appointments are made in a completely neutral, independent manner devoid of any interference through the collegium system or the government.

It will be possible by the introduction of All India Judicial Services.

When the merits of introduction of AIJS are far too clear to see, it beats the logic as to why governments and judiciary have been desisting it for such a long time.