PUCL Bulletin, January 2004

National judicial commission bill falls short

-- By V.R. Krishna Iyer

The bill to constitute a National Judicial Commission is a good beginning, but falls short of sensitive specifications, purposeful guidelines and popular expectations from such a Commission.

The Bill for a constitutional commission for appointments and performance of judges is a necessity of the time. Jurists, lawyers, parliamentarians and the public generally have been discussing this issue in India for some years. Now a bill to constitute a National Judicial Commission is before Parliament. The composition of the Commission is somewhat traditional and a marginal improvement on the present protocol; with the Chief Justice of India as the Chairperson, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice and one eminent citizen to be nominated by the President in consultation with the Prime Minister being the other members.
Functionally, the Commission makes recommendations for appointment of judges of the Supreme Court, Chief Justices and judges of the High Courts. The Commission recommends transfers of justices of the High Courts. The Chief Justice of the High Court and the Chief Minister of the State shall be associated with the Commission in cases of appointments or transfer. Importantly, the Commission may draw up a code of ethics for judges of the Supreme Court and the High Courts.

The Commission has been vested with the power ‘to inquire, suo motu’ or on a complaint or reference, into cases of misconduct or such deviant behaviour of a judge other than those calling for his removal and advise the Chief Justice of India or the Chief Justice of a High Court appropriately after such inquiry. The Commission’s procedure is left to itself, but what is the scope of appropriate recommendation in the event of misconduct and deviant behaviour is not specified, except to the extent that the removal of the judge is not within the purview of the Commission’s function. The bill is a good beginning, but falls short of sensitive specifications, purposeful guidelines and popular expectations from such a Commission.

The Select Committee of Parliament before which it is now pending, I hope, will make meaningful and democratic changes, break out of the oligarchic bias of the bill and fill the vacuum that now weakens the draft bill. An extensive consultation with the Bar Councils, Bar Associations, the higher judiciary on a wider basis, leading non-partisan and well-informed citizens, legal aid bodies and public interest, pro bono, elements will harvest constructive suggestions about the merits of candidates which will effectuate the objectives of the Commission. So strategic and democratic an institution as the Judicial Commission cannot be the product of an elite group unless countrywide sittings and nationwide collection of views are undertaken.
I take the view, departing from the Victorian practice, which hardly illuminates the mission of the legislation, that the Preamble must find eloquent expression in the Preamble like in our Constitution.

The objects and reasons must also state the teleologic thrust of the bill so that it may be of semantic significance and carry a message while interpreting the provisions. What we need is not a blank, non-speaking, formal, conventional print but an invigilating instrument vibrant, articulate, collective, accessible. The composition of the Commission also calls for a closer examination. As at present constituted, the Chief Justice and his two senior-most colleagues have a dominant presence which is fair, although experience shows, left to themselves they differ among themselves, delay the process and rarely consult a wider constituency or consider others beyond their personal ken. Nor have they the facility to investigate deeper. Sometimes it is a bargain and other judges have no voice. Patronage, favouritism and other prejudices have, at times, procrastinated the process. Moreover, it is a superstition that the senior-most are the wisest. So there is a case for provision of consultation with the other judges of the Supreme Court and the judges of the relevant High Courts. Federal fairness may justify this consultative expansion. On the side of the Executive; the Minister for Law and Justice is ordinarily an insular entity who is not professionally aware of the state of the Bar in the country nor of the qualities of members from a socio-economic angle and other factors relevant for elevation to the Bench.

The entire Bar is altogether ignored in the present scheme of the bill. That vacuum weakens the selective wisdom of the Commission. Moreover, the ‘eminent citizen’ (now provided in the bill) who is the nominee of the President, is likely to belong to the party in power. Therefore, I suggest that there be more than one nominee, a representative of the Opposition in Parliament and also a senior non-party statesman who has opportunity to have a look at the subject through informal popular contacts. The Bar is not incommunicably untouchable but must be discreetly heard. I am not dogmatic about these suggestions, but do commend an element of democratisation in the composition and operation of the Commission. Perhaps, a look at the Nepal Constitution, which also provides for a ‘judicial council’ may be edifying. In Switzerland, the approach is different and all political parties have a voice. The members of the Federal Court there are elected by the Federal Assembly, which shall ensure that the three official languages are represented.

Perhaps, in India the Commission must include a woman of outstanding stature in public or judicial affairs, a representative of the Scheduled Castes or the Scheduled Tribes, and care taken to ensure that there is broad representation from the north, south, east and west of the country. I do not mean to argue for reservation at all (which will ruin the process) but do feel that the country as a whole must feel itself duly, though vicariously, present in the overall composition and perspective of the Commission. Not an oligarchic club with a class bias, but a democratic instrument with a high vision, so that, We, the People of India must not be alienated or are out of bounds vis-à-vis the Judicial Commission’s functional ambit.

In a pluralist society like India, religious minorities, linguistic diversities, underprivileged classes and other divisions which the Constitution itself takes note of, the Commission cannot be given a blanket power to choose whomsoever it likes for High Court judgeship or elevation to the Supreme Court. Clear guidelines, indicating constitutional values while selecting candidates, are desirable. Similarly, when prospective appointees are under consideration of the Commission, it is but fair to inform the public, especially the Bar, the Judiciary and enlightened groups, including jurists and leading academics, to offer their views, if any.

The decision will be of the Commission, but the sources of information must be as broad as possible or relevant. Judicial remedies, what with public interest issues and litigation gaining more space and time in court, justify freedom of information gathered confidentially from several sources, which will strengthen the democratic content of the choice. This may alarm the orthodox as an unconventional proposal, but a Socialist, Secular, Democratic Republic is itself a radical idea whose time has come. Judges are no longer mere dispute-adjudicating agents. They have a constitutional agenda for transforming the social order and to be a sentinel on the qui vive.
Rules and regulations and other discretionary procedures in these matters may well be left to be filled in appropriately but positive, dynamic signals must be given. Unfortunately, the bill leaves a void in these matters. That cannot be.

The Judicial Commission, in the contemplation of the bill, is also a Performance Commission. How should enquiries be held? Who should receive and process the grievances and complaints? Should any publicity be given to the enquiry at all? Are the proceedings to be in camera? In all these matters, the bill should not be totally silent but must speak, briefly though. There must be some delineation of the ideology of the code of ethics, which is now a judicially consensual convention but good so far as it goes but has no statutory force and is toothless. What is the scope of punishment, in the event of breach of ethics? Surely, the Commission must have authority to recommend appropriate punishment, but what are the various punitive alternatives open to the Commission?

They must be codified. The statute must speak on this subject as well as the mode of hearing. Even in the case of removal of a delinquent for gross misbehaviour, the Commission must have the power to recommend to Parliament, a motion for impeachment.

It is perfectly possible that a complaint may be against the Chief Justice himself. In that event, who is to hold the enquiry? The bill is blank on this point. There are other omissions too; about the venue of enquiry, the exclusion of the media from undue publicity once the Commission is in session of the matter. Are judges whose children flourish in practice in the same court, liable to be transferred, lest a racket should spoil the repute of the ‘sunstroke’ judges? How about judges who never pronounce judgments or take unpardonably long gestation for pronouncing judgments in cases heard years earlier?

A little more homework should have been done before launching on so great an issue as the National Judicial Commission. These and other shortcomings must be remedied before the bill blossoms into constitutional law.


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