Every debate on judicial accountability inevitably brings judicial appointments into focus. The shift from executive-led appointments to the present collegium system was driven by concerns that executive overreach threatened the judiciary's independence, legitimacy and accountability.
Historically, judicial appointments were guided by an executive-led process where consultation with the judiciary was customary, but non-binding. However, traditionally, the judiciary's inputs were respected. In 1973, the supersession of judges by the Indira Gandhi government altered the landscape. Appointment of Justice A N Ray as CJI over three senior judges shattered the seniority convention, and ignited a debate about politicisation of judicial appointments.
The First, Second, and Third Judges' cases (1982, 1993, 1998) resulted in the collegium system, giving judges a decisive say in appointments. The collegium system finds no mention in the Constitution. But through judicial interpretation, the top court has stamped its supremacy on appointments.
For appointments to the Supreme Court, the collegium comprises CJI and the four senior-most judges. For appointments to high courts, the collegium comprises CJ of the concerned HC, and two senior-most judges of that court. Thereafter, recommendation by the HC collegium is reviewed by the apex court's collegium, comprising CJI and the two senior-most puisne judges.
GoI's role is limited, but significant. It conducts background checks through IB, and can return recommendations once, seeking clarifications or raising objections. If, despite objections, the collegium reiterates its recommendation, GoI is theoretically bound to accept it. But we have seen that theory and practice often work differently.
In 2014, in a rare political consensus, through the 99th Constitutional Amendment, National Judicial Appointments Commission was created to reform judicial appointments with participation from the judiciary, executive and civil society. But in the Fourth Judges' Case, on October 16, 2015, the top court struck it down as violating the basic structure of the Constitution, asserting judicial independence.
The collegium system has been criticised for its lack of transparency and institutional inbreeding, where the collegium tends to favour insiders - people who come from families of judges or senior lawyers, and tend to perpetuate legacies. This criticism is so strong that the present CJI has publicly stated that measures to address nepotism are being considered.
Critics say the existing framework for judicial accountability has repeatedly proven inadequate. The Judges (Inquiry) Act 1968 stipulates that a judge can only be removed for proven misbehaviour or incapacity. The in- house procedure established in 1999 has proved woefully inadequate, operating behind a veil of secrecy that shields judges from public scrutiny.
Beyond constitutional mechanisms, the judiciary has developed an in-house procedure for addressing complaints against judges, and CJI can form a 3-member judicial committee to investigate allegations. During investigation of serious allegations, the concerned judge may be asked not to perform judicial duties. And if allegations are substantiated, CJI may ask the judge to resign voluntarily. But this is often too little, and sometimes too late.
There is lack of transparency in the judiciary. Few judges have publicly disclosed their assets. Further, requirement of prior sanction from CJI before registering a criminal case against an HC or SC judge has effectively created a judicial immunity that borders on impunity. Even when the apex court has established investigative committees, their findings are rarely made public, and recommendations often go unimplemented.
Lokpal and Lokayuktas Act 2013 established the institution of the lokpal to investigate corruption allegations against public functionaries. However, the top court has stayed a lokpal order, asserting jurisdiction over sitting HC judges, jealously guarding its self-regulatory prerogatives despite mounting evidence of their inefficacy.
Judicial accountability requires a multifaceted approach:
Undertake institutional reforms to strengthen accountability, such as establishment of a national judicial oversight committee, or an independent review mechanism.
Ensure transparent evaluation in the administration of justice and continuous feedback from stakeholders in addressing endemic issues.
Adopt technological solutions to reduce pendency.
Fast-track criminal adjudication for judges against whom allegations have been made. This will instil judicial accountability and confidence in the process.
(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com)
Historically, judicial appointments were guided by an executive-led process where consultation with the judiciary was customary, but non-binding. However, traditionally, the judiciary's inputs were respected. In 1973, the supersession of judges by the Indira Gandhi government altered the landscape. Appointment of Justice A N Ray as CJI over three senior judges shattered the seniority convention, and ignited a debate about politicisation of judicial appointments.
The First, Second, and Third Judges' cases (1982, 1993, 1998) resulted in the collegium system, giving judges a decisive say in appointments. The collegium system finds no mention in the Constitution. But through judicial interpretation, the top court has stamped its supremacy on appointments.
For appointments to the Supreme Court, the collegium comprises CJI and the four senior-most judges. For appointments to high courts, the collegium comprises CJ of the concerned HC, and two senior-most judges of that court. Thereafter, recommendation by the HC collegium is reviewed by the apex court's collegium, comprising CJI and the two senior-most puisne judges.
GoI's role is limited, but significant. It conducts background checks through IB, and can return recommendations once, seeking clarifications or raising objections. If, despite objections, the collegium reiterates its recommendation, GoI is theoretically bound to accept it. But we have seen that theory and practice often work differently.
In 2014, in a rare political consensus, through the 99th Constitutional Amendment, National Judicial Appointments Commission was created to reform judicial appointments with participation from the judiciary, executive and civil society. But in the Fourth Judges' Case, on October 16, 2015, the top court struck it down as violating the basic structure of the Constitution, asserting judicial independence.
The collegium system has been criticised for its lack of transparency and institutional inbreeding, where the collegium tends to favour insiders - people who come from families of judges or senior lawyers, and tend to perpetuate legacies. This criticism is so strong that the present CJI has publicly stated that measures to address nepotism are being considered.
Critics say the existing framework for judicial accountability has repeatedly proven inadequate. The Judges (Inquiry) Act 1968 stipulates that a judge can only be removed for proven misbehaviour or incapacity. The in- house procedure established in 1999 has proved woefully inadequate, operating behind a veil of secrecy that shields judges from public scrutiny.
Beyond constitutional mechanisms, the judiciary has developed an in-house procedure for addressing complaints against judges, and CJI can form a 3-member judicial committee to investigate allegations. During investigation of serious allegations, the concerned judge may be asked not to perform judicial duties. And if allegations are substantiated, CJI may ask the judge to resign voluntarily. But this is often too little, and sometimes too late.
There is lack of transparency in the judiciary. Few judges have publicly disclosed their assets. Further, requirement of prior sanction from CJI before registering a criminal case against an HC or SC judge has effectively created a judicial immunity that borders on impunity. Even when the apex court has established investigative committees, their findings are rarely made public, and recommendations often go unimplemented.
Lokpal and Lokayuktas Act 2013 established the institution of the lokpal to investigate corruption allegations against public functionaries. However, the top court has stayed a lokpal order, asserting jurisdiction over sitting HC judges, jealously guarding its self-regulatory prerogatives despite mounting evidence of their inefficacy.
Judicial accountability requires a multifaceted approach:
Undertake institutional reforms to strengthen accountability, such as establishment of a national judicial oversight committee, or an independent review mechanism.
Ensure transparent evaluation in the administration of justice and continuous feedback from stakeholders in addressing endemic issues.
Adopt technological solutions to reduce pendency.
Fast-track criminal adjudication for judges against whom allegations have been made. This will instil judicial accountability and confidence in the process.
(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com)
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