Selecting justice

Judicial appointments need transparency

Amid growing concerns about political pressure on the appointment or extension of judges, the government has indicated that it intends to move quicker on creating a judicial appointments commission. This immediately follows the revelation of a series of events from 2005 which, although the facts continue to be disputed, nevertheless raise serious concerns. Former Supreme Court judge, and current chairman of the Press Council of India, Markandey Katju recently said that a judge of the Madras High Court was granted an extension although a report by the Intelligence Bureau had said that he was corrupt. Mr Katju said that the collegium that appoints judges, then headed by the erstwhile chief justice of India, R C Lahoti, had given in to pressure from the government. Mr Katju said that the ex-prime minister, Manmohan Singh, was put under pressure from a coalition partner - who could only be the Dravida Munnetra Kazagham (DMK) from Tamil Nadu - to protect the judge, and a senior minister pressured the collegium on behalf of the government. Then law minister, H R Bhardwaj, subsequently claimed that extensions to the judge were solely the collegium's decision. It has now emerged, in a report by The Times of India, that the Prime Minister's Office had, in fact, lobbied in favour of making the judge in question a permanent member of the Madras High Court bench.

On one level, this is a reminder of the bad old days of coalition politics under the United Progressive Alliance (UPA). The DMK proved itself to be a difficult and bullying ally, and often used its pivotal numbers in the parliamentary coalition to dubious ends. Whether it is in the reported arm-twisting of Ratan Tata by the telecom ministry it controlled; or its insistence that A Raja be retained as a minister in 2009; or in the doubtful Maxis-Aircel deal, the DMK bears a great deal of responsibility for the downfall of the UPA. If these latest allegations are true, however, then it becomes clear that Dr Singh himself had no intention, right from the start, of standing up to this ally. It is no surprise, then, that the UPA failed to manage its coalition.

However, the larger point that must be made is on the nature of judges' appointments. The incumbent government has already been accused of intervening unduly in judicial appointments, by refraining from returning the nomination of eminent lawyer Gopal Subramanium to the collegium. With each such report, there are more holes in the existing justification for the collegium, that it is immune to political pressure. However, the answer is not to simply replace it with another opaque system. The appointment of judges must be made in the open, and transparently. The executive must be given a greater, but circumscribed, say in the choice of judges, certainly. However, if accusations of corruption or bias are going to be thrown around in this manner, then it is clear that the process requires clarity and light in order to preserve the aura of the judicial system. The proposed judicial appointments commission should, thus, not be a closed and opaque body.