People's Democracy

Judiciary And The Ongoing Debates

S Ramachandran Pillai

DISCUSSIONS have been held often on the functioning of the executive and legislature, the two pillars of the present bourgeois parliamentary system of India. But, any discussion whatsoever about the third pillar, the judiciary, has been far and few and more academic in nature – among retired judges, advocate organisations or certain political leaders – and far away from the general public.

However, recently, a healthy trend of open discussions on the functioning of judiciary has been initiated. The chief justice of the Supreme Court, the prime minister and the Lok Sabha speaker and many others have taken part in this debate.

The subsequently-clarified controversial statement of Paloli Mohammed Kutty, Kerala’s minister for local self-government, and the contempt of court proceedings initiated by the Kerala High Court against him have given a new push to this debate.

When the Communist Party of India (Marxist) raised certain criticisms against the shortcomings and weaknesses in the functioning of the judiciary and against the approach of certain judgements of Supreme Court and High Courts, a section characterised the criticisms as an attack on the judicial system.

DEFICIENCIES AND MISTAKES

It is a fact that in the present bourgeois parliamentary system, judiciary has a role to play. But there are many weaknesses, shortcomings and deficiencies in the functioning of judiciary, which have to be rectified and remedied, so that the judicial system would become more efficient.

There are reports that a section among the judges is corrupt. The dispute is only about the percentage. There are allegations that some judges are showing favouritism and some are inefficient. Some judgements usurp the powers of executive and legislature. Some judgements are trying to rewrite the Constitution by giving innovative interpretations of the Constitutional provisions in order to restrict the power of parliament in making laws and to capture more powers for the judiciary. Some judgements ignore the interest of the poorer sections and oppressed and restrict the efforts to ameliorate their condition by social intervention. Some judgements show intolerance to mass struggles and mass organisations. And some judgements ignore the interest of the common people by their complete surrender to the globalisation philosophy. The exorbitant court expenses and inordinate delay in court proceedings are denying justice to common man. The people are increasingly loosing confidence in the judicial system.

The method of appointment of judges in India is defective as it is not open to public scrutiny and lacks accountability and transparency. The impeachment provision in the Constitution for dealing with judicial misbehaviour is impractical and unworkable. Even a reasonable criticism against a judgement can be branded as contempt of court as per the provisions of the present law. The system that deals with the contempt proceedings is also defective leading to denial of natural justice. A dangerous situation is created due to the cumulative effect of these factors. The present situation nurtures the emergence of authoritarian trend from certain judicial pronouncements. The globalisation forces are increasingly trying to make use of judiciary to facilitate implementation of their agenda as the other two pillars of the government – executive and legislature – are influenced by democratic intervention.

Some opine that if judiciary is criticised, people may lose faith in the judicial system and it would result in dangerous situation. We do not agree with these views. Whatever be the manner of criticism, if the judicial system is without shortcomings or weaknesses, people would not lose confidence in it. Confidence is to be earned through the efficient functioning of the judicial system and by correcting its mistakes and deficiencies. Confidence cannot be inspired by threats of contempt of court proceedings and by prohibiting public criticism. The defects can be remedied only by people’s intervention through enlightened debates.

APPOINTMENT OF JUDGES AND IMPEACHMENT PROCEDURES

Perhaps, it is only in India that judges are appointed by judges alone. In all major countries, executive, legislature and judiciary perform meaningful roles in the appointment of judges. In USA, the president of the country makes the nomination. The Senate Judiciary Committee conducts hearings and makes a report to the senate. The senate takes a decision by simple majority, either confirming or rejecting the nomination made by the president. In Germany, judges to the Federal Constitutional Court are elected by lower house of parliament and the Federal Council. In France, the president of the republic presides over an 18-member council comprising of minister of justice, prominent public figures and judges. This committee makes proposals for appointments. In United Kingdom, the Supreme Court judges are appointed by the Queen on the recommendation made by the prime minister. The Lord Chancellor who is a member of the cabinet convenes a selection commission consisting of five members, including the president and deputy president of the Supreme Court and one member each from the Judicial Appointments Commission, the Judicial Appointments Board of Scotland and the Northern Ireland Judicial Appointments Commission. The selection commission must consult senior judges, the Lord Chancellor, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland and make a report to the Lord Chancellor about the selection. The Lord Chancellor must notify the selection to the prime minister or reject it or require the commission to reconsider it. Even then, the Lord Chancellor may notify a person who was not selected on basis of reasons recorded in writing.

In India, till 1993, the executive had a role in the appointment of judges. The Supreme Court Advocates on Records Association filed a public interest litigation before the Supreme Court on the issue of appointment of judges. The nine judge bench with the majority of seven, by an innovative interpretation of the Constitution, took over the power of appointing judges in its own hands. This came in the background of a weak executive at the centre. It held that the recommendation for appointment of a judge should be made by the chief justice of India in consultation with his two senior most colleagues and that recommendation should be given effect to by the President.

The 1993 decision was reaffirmed in a unanimous opinion rendered by a nine judge bench of the Supreme Court in 1998 on a reference made by the President under Article 143 of the Constitution. It held that the recommendation for appointment of judges should be made by the chief justice of India and his four senior most colleagues. The chief justice of India and his four senior most colleagues are now generally referred to as collegium of judges for the purpose of appointment of judges to the Supreme Court.

The method of appointment of judges by judges themselves poses challenges to the democratic system. This may lead to the appointment of judges who hold only similar ideological or philosophical positions. It may also lead to the friends and relatives of the collegium or judges sneaking into the panel and the emergence of a coterie in judges’ appointments. The present system is incapable to appropriately address the diversities in India and is not open to public scrutiny and lacks accountability and transparency.

The system of appointment of judges has to be changed and as in the case of other countries, the executive, the legislature, the public and the judiciary should be given appropriate role in the appointment of judges. The system of appointment should be transparent and subject to public scrutiny. The public should be given an opportunity to express their views on the names nominated for the post of a judge.

The 57 years of experience shows that impeachment proceedings to punish an errant judge is impractical. To initiate an impeachment proceeding in Rajya Sabha, support of 50 members is required and in the Lok Sabha, support of 100 members. The judges’ committee will examine the allegations and they report their opinion to the parliament.

Each house of parliament has to take a decision on removal of judge from office supported by a majority of the total membership of the house and by a majority of not less than two-thirds of the members of that house present and voting in the same session. Then the President of India, by an order, can remove the judge. So far, only the case of Justice V Ramaswami came before the parliament and due to the lack of political will of the Congress party, parliament was unable to take a decision. The charges against Justice V Ramaswami pertained to purchases made for the High Court and his official residence and were audited by the Accountant General office whose audit report contained the evidence necessary to frame charges against Justice V Ramaswami. He was then tried by a committee of three judges who found him guilty on many charges of misfeasance.

ON THE JUSTICE (INQUIRY) BILL 2006

The present law on contempt of court and the system of trial is inherited from the British feudal system. Even a normal appreciation or a criticism of a judgement can be characterised as a contempt of court and proceedings can be initiated. The system of contempt proceedings is draconian as the person who makes the complaint, the person who adduces evidence for proving the contempt and the person who passes the judgement are one and the same. This will lead to denial of natural justice.

The sword of contempt is keeping the judiciary from public scrutiny and public intervention. It is better to have an independent mechanism for the trial of contempt of court proceedings. A common man has the right to approach a court against slanders and libels. In a democratic system, it is not appropriate to give more powers to the judge than what is open to a common man. Instead of taking contempt of court proceedings, the judge should file a case for defamation. The system of insulating the judiciary from public scrutiny and opinion with the threat of contempt of court is unjust and dangerous in a democratic system.

The present law of contempt of court should be changed, and public scrutiny in the form of critical appreciation of the merits and demerits of the judgements should be ensured.

The second Administrative Reforms Commission headed by Veerappa Moily has recommended to the government in January 2007 to constitute a National Judicial Council having the representation of the executive, legislature and judiciary for recommending names for appointment of Supreme Court and High Court judges, for inquiry into misconduct, for imposing minor penalties and for recommending removal of a judge. The committee also recommended that based on the recommendation of the National Judicial Council, the President should have the powers to remove a Supreme Court or High Court judge. The committee suggests that the Council should have the following composition: the vice president as the chairman of the Council, the prime minister, the speaker of the Lok Sabha, the chief justice of India, the law minister and the leaders of the opposition in the Lok Sabha and the Rajya Sabha.

The National Commission appointed by the NDA government to review the working of the Constitution had also recommended the constitution of a National Judicial Commission for appointment of judges of the Supreme Court. The commission shall comprise of the chief justice of India as chairman, two senior most judges of the Supreme Court, the union minister of law and Justice and one eminent person nominated by the president, after consulting the chief justice of India as members.

The Communist Party of India (Marxist) has recommended the constitution of a National Judicial Commission with representatives from the three organs of the government – executive, legislature and judiciary – representative of the bar association and the general public. This commission should be vested with the powers to make recommendations for the appointment of judges, to conduct inquiries into the misbehaviour of a judge, to impose minor punishments and to recommend to the president for the removal of a judge for proved misbehaviour or incapacity.

The debate on the role and functioning of the judiciary should continue. The government should show political will and determination to make necessary amendments to the Constitution, including other legislative measures for the constitution of a National Judicial Commission and for asserting the supremacy of the parliament. The government should also make necessary changes in the law regarding contempt of court to ensure free and fair discussion on the functioning of judiciary and their judgements.