V.R. Krishna Iyer
|There is no reason why we should not have a Performance Commission for the judiciary.|
JUDGES IN democratic countries are independent and impartial. They enjoy vast powers provided by convention as in Great Britain or by constitutional provisions as in the U.S. and India. Judges in India have wide jurisdiction conferred on them by the Constitution. Within the broad scheme of the suprema lex there are powers and autonomy in the executive and the legislature that are inviolable by judicial authority. The final pronouncements by the highest court on disputes are binding on civil authorities, and any breach is punishable. The contempt power is secured by statutory authority and by specific articles implicit in the Constitution. Even free speech, a fundamental right, is subject to the contempt power. This means there is paramountcy for the jurisprudence of judicial action, which imparts a practical guarantee to the civil rights of citizens.
Inevitably, the people of India have to assure themselves about the appointment, performance and removal of judges at all levels. Sometimes judges play a role of imperium in imperio, which is dangerous if their semantic perception has a social philosophy that is contrary to the basic socialist, secular, people-oriented values inscribed in the Preamble. Even Parliament can be belittled and victimised by judicial `excesses' and class biases. The highest court, with the most powers and the amplest immunity, should suffer public scrutiny and criticism from a constructive angle. In the language of Judge Jerome Frank (as quoted from David Pannick's book Judges), courts should not shy at exposure if true and responsibly presented:
"Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. I am unable to conceive... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions."
The governance of our Republic, in the totality of administration, is vested in the trinity of executive, legislature, and the judiciary. The actions of the executive are subject to judicial review when there is injustice — social, economic or political — or aberration from the provisions of law and the Constitution. When the legislature makes laws beyond constitutional bounds or acts arbitrarily, contrary to its basic structure, the highest court examines and corrects. When the judiciary is guilty of excesses, either a larger Bench or a constitutional amendment alone can intervene.
The supremacy of the judiciary, its finality and presumed infallibility, make it obligatory to control its operation by a sublime instrumentality accessible to the people. So it becomes a matter of great democratic moment to preserve the judiciary from going beyond what the Constitution provides. Parts III, IV, and IV A contain the soul of the Constitution, and the court has a solemn duty to accept its social philosophy, culture, and imperatives.
Having stressed the glory and the supremacy of the judiciary, what comes up is the matter of the appointment of those who are to occupy the high office for administration of law and justice. When public servants are to be chosen impartially and competently, Public Service Commissions of high stature are the convention. They are usually the authorities for ordinary public appointments. But when it comes to judges, the matter is of greatest constitutional importance. Therefore, the selecting body must in its composition be beyond question — the most eminent body. It should have a high level of representation from the judiciary. The Chief Justice of India must be the Chairperson and a few of the Chief Justices of High Courts its members. Perhaps the Union Home Minister may appropriately be in it. So also the Chairman of the Union Public Service Commission. Statesmen or stateswomen who are above political controversy or party influence could be included if the President and the Prime Minister, in consultation with the majority of the Chief Ministers, are agreeable. The Vice-President or the Speaker of Parliament may be considered for membership, or they may nominate a deputy. The Bar must be represented. These are not well-thought-out ideas but preliminary thoughts to initiate a discussion.
The present situation on the ground of the independence of the judiciary supersedes the practice of the Prime Minister being the decisive voice that prevailed for decades. The present process, based on the interpretation of the Supreme Court, involves a majority of the Bench, a collegium of three to five judges of the Supreme Court. This contradicts Dr. Ambedkar's view expressed in the Constituent Assembly.
The performance of the collegiums during the last few years has been hardly creditable, rarely prompt. It is the replacement of executive favouritism (in consultation with the Chief Justice of India) by a judicial alternative, the choice being never based on a rational principle or comprehensive investigation or opportunity for the opinion of the Bar or the public. No objective study is done of the social background or commitment of the candidates. No opportunity is given to the Bar or public organisations concerned with justice — social, economic, and political.
There is a Roman adage based on natural justice: "Whatever touches us all should be decided by all." The appointment of judges must be a public process, not a matter of secrecy as it is now. This idea may be elaborated for public debate. There must be guidelines based on which the selection may be made; and the principle must be implementation of the values of the Constitution. The independence of the judiciary must be reflected in the independence of the selecting instrumentality and its processes.
When the appointment is to the Supreme Court, whether by direct selection from the Bar or by elevation from among judges, there should be an investigation into the professional capacity, character, performance, and social background of the candidates. A two-thirds majority of the Commission must support the selection. In India where communal lunacy and insidious corruption in action are increasing in public life, the selection of the higher judiciary must rule out all such suspicion. The court must be impeccable in integrity, intelligence, and constitutional wisdom. By accident, we have now fine judges. Currently there is much criticism about the higher judiciary on various grounds; that is why special care must be taken in the choice.
If our Republic is to live up to the promises in the Constitution the judges have an important role to play. The justice system is the principal instrumentality in satisfying the undertakings in the Constitution. Therefore, `We, the People of India' must be ensured the integrity and efficiency, the moral responsibility and reality of easy access to the court as well as early finality of dispute resolution. All these together constitute what we may regard is the successful performance of the judicature, assuming that judges are chosen rightly, with an eye on the values of the Constitution and the rights of the people. To realise this we must have a machinery to guarantee the good performance of the judiciary.
This is best done by means of a Performance Commission. The judiciary now functions without check, except impeachment in Parliament. But that involves a political process.
David Pannick, in Judges, recommended a Performance Commission. Many U.S. States have constituted such commissions, which examine complaints about the conduct of judges. They are vested with powers to take consequential action. There is no reason why India should not have a Performance Commission. The transfer and promotion of judges of the High Courts could be based on its recommendations. The censure of culpable judges must be governed by the Commission.
Without doubt, its stature must be high. It should be nationally sensitive and supremely impartial. Judges hold the highest constitutional office and their record has been superior to other public offices although the wave of corruption across the nation has marginally tainted the judiciary. Any commission that examines the performance of the members of the apex court must equally be of the most respected status and independent character, of course, with the Chief Justice of India as chairperson. These tentative views could be the starting point of a national debate.
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