Independence of Judiciary is nonnegotiable,” says the present Chief Justice of India (CJI). This statement has been loud and clear. But the measures to ensure appropriate selection and appointment of judges and eliminating the alleged corruption in some elements of the judiciary have not been confronted with equal vigour.
The CJI also asserted that he is not averse to more transparency in appointment of judges. “Independence”, “integrity” and “transparency” are words of great significance but pose a difficult task in real implementation and effective administration. The murmurs and gossips along the corridors of the courts and among a section of litigants can be quite disturbing to those who value an independent judiciary and want to protect the integrity of the judiciary, especially when it was the last resort of those who feel wrong. Blind adherence to the present collegiums system could not, as experience shows, be in furtherance of the aforesaid causes. Dilution of the independence of the judiciary is also equally undesirable. A delicate balance has to be struck so as to ensure independence and integrity of the judiciary and further ensure that the right persons with requisite qualities and abilities are elevated as judges.
The scenario in subordinate courts is well-known and deserves equal immediate attention. In both the cases, the judiciary has to demonstrate an adequately alert and competent leadership so that as the persons with the highest stake in the institution, they need reforms rather than be laid into what appears to be a “reform”.
Unfortunately, on account of its traditional attachment existing, judges are reluctant to openly and candidly interact regarding the maladies within the judiciary. Introspection in this regard, both by the Bar and the Bench, is an inevitable necessity of the hour. In this sphere, there is an apparent lack of interaction and purposive formulation of future policies, whereas the Bar is the bulk and the Bench is fewer in number. An appropriate measure has to be found for appropriate avenue at least beginning with a close-door brainstorming amongst these two stakeholders in the context of independence and integrity of the judiciary. The litigant public no doubt is another stakeholder and their grievances are very often not reflected in the deliberations in the high pedestals of justice.
The law Minister of India in his convocation address at the Bangalore National law School indicated creation of a database of competent lawyers. This obviously meant for providing a database of selection of judges. The difficult task, however, is the nature of inputs that go into creating a database and the authenticity thereof. Though a welcome suggestion, its implementation is definitely a difficult task and any endeavour in this regard should not be allowed to be hijacked by the vested interests within and outside the system. The debates at the Bar have also to consider this aspect.
As things stand at present, the political parties are not in favour of the continuance of the collegiums system, which is a judge-created arrangement. But at the same time, the political parties, whatever their professed views may be, would not really in their heart desire a dominant independent and effective judiciary. At this juncture, the members of the profession have a very crucial role to pay in reflecting their views regarding the cleansing of the judicial system, increasing its efficiency in delivery of justice and in the appointment of right persons to the responsible position of judges. The voices in this regard emanating from the Bar are disparate and are not properly articulated. One has to humbly accept that the Bar has probably not risen to the occasion at such a crucial moment involving the future of the institution that it serves. It is time that there was a debate in this regard in every State and the respective Bar Associations and a common consensus was evolved to ensure a better future for the judiciary, which for many citizens and aliens is the temple of last resort. But alas! The voice of the most of the legal profession is not very audible in this regard and the citizens are still awaiting the response of the Bar for such a crucial cause. And this concerns us.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)