Independent Judges, Dependent Judges
By Ashutosh Vasishta
India is the only country in the world in which the blemish method of judges appointing judges exists. As compared to an earlier time, now judiciary assumes a much wider responsibility and plays a very important and wider role in the governance of our country. So, in order to comply with these roles and responsibility impeccably, there must learn and sound personalities at the top of this profession and which cannot be appointed as per the current system prevailing in our country.
The application of the collegium system method for appointment of judges in the present scenario is totally against the objectives for which it was established. It was introduced in our country so that executives and legislature have no influence in the appointment of judges of this independent institution so that it remains freestanding. However, now this system is heading towards “give and take” culture which is not only leading to opaqueness but also unreasonable appointments in the Higher Courts. As the judges under the collegium system are not answerable regarding their basis on which they have appointed certain judges is enough in itself to prove that how an empire is building in an empire.
Nepotism is also a product of this system as judges are not accountable for their choice so they mainly prefer their kids or relatives over other competent professionals. Nowadays it is a trend which can be easily traced in every profession whether it is politics or film industry, but the presence of it in the judiciary is really lethal for our country. Through it, judges are indirectly trying to portray that there is something supernatural in their genes as consecutively last three generations of their family belong to the higher judiciary. It is mostly seen that judges usually recommend the names of their relatives or the people of the same cabinet, but there exists no medium or reason through which we can question the appointment as it is purely up to their discretion and which helps the senior judges to play this game according to their whims and fancies.
Nothing is absolute in our laws or rights and reasonable restrictions can be imposed on them except power given to collegium to select succeeders of Indian Judiciary. It is a 26 years old method totally filed with flaws and loopholes giving absolute powers in the hands of few to control the mechanism of appointment of judges in High Courts as well as Supreme Court. If such a deficiency will continue to exist in the higher judiciary than what will expect from the sole protractors of Indian Constitution.
Independent judges are must in order to make this organ more reliable. When the judges are free from bias, prejudice, and any kind of internal or external influence then the independence of this organ will be restored. There must be questioning while appointment so that judges will be aware of accountability for a particular decision and on the other hand it will help in igniting the minds of mute masses who have learned to act like a pigeon who closes its eyes when a cat is around. So, at least questioning and answerability must be introduced immediately in this method which will help in eradicating half of this problem instantly. Transparency should be promoted in decision making and views of every judge must be recorded while selection so that one cannot dominate over others and clarity exists.
It is accepted by the judiciary itself that the collegium system suffers from major drawbacks and loopholes which can create serious destruction in the governance of our country. While deciding SCAORA V. U.O.I, in which NJAC Act was declared unconstitutional, it was stated by C.J.I that although we are declaring it as constitutional, we accept the fact the present collegium system is suffering from serious demerits and reforms must be taken into account for it. However, till now no efforts have been made to relieve this system from such major setbacks and we are heading towards the calamitous path.
At least certain immediate actions we can incorporate so that this misleading process can be cured up to an extent. The major point of concern is that despite knowing these problems of such an important organ if we are ignoring it or not trying to solve it is really disappointing and frightening as well for us. There are not even grounds like seniority, merit, etc. on the basis of which appointment must take place and the total makes this method absurd and full of ambiguity. Firstly, it gives total authority in the hands of few who can choose whom they wish and secondly, there exist no standards or tools to measure the competence of person so selected which makes this method dreadful for a thriving democracy like ours.
If no active and much-needed steps are taken in short period than a serious crisis of justice can be its ultimate outcome and which can create a large amount of destruction to Indian Democracy as well as citizens expecting justice from higher judiciary. There must be a way to solve these internal defects in the working of this organ so that a fair, impartial, adequate opportunity is provided to the competent personnel to become a judge in High Court and Supreme Court. These stakeholders must be removed from their positions so that an independent judgeship can be represented in our country also. India is the only country in the whole world in which this method of collegium appointing judges exists otherwise a separate commission is there in most of the countries that are responsible to appoint competent judges and there is complete transparency, and accountability exists. So, India should also take necessary measures which will help in prospering our judicial system and thus our nation.
It is high time to raise this issue and incorporate reforms in it so that both the judiciary and collegium method are able to solve their real purpose of establishment. This is the issue which requires immediate action otherwise it can be devastating in working of this so-called “independent” organ of our country.