A Moment of Reckoning – Prashant Bhushan & Cheryl D’souza
To preserve judiciary’s independence, appointment process must be transparent
The saga of Justice C.S. Karnan’s outrageous behaviour and the Supreme Court’s handling of the matter became an unseemly spectacle. It has given rise to several questions, including the issue of judicial appointments and the legal vacuum that enabled such an episode. It has brought the issue of judicial accountability to the forefront again. The Judges Inquiry Act, 1968, falls short of prescribing a procedure to deal with errant judges. The system of impeachment doesn’t work due to its onerous and political nature. In the absence of an effective law for judicial accountability, this problem will continue.
There is need for a full-time body for appointments as well as for receiving complaints against judges. An ex-officio body of judges and government functionaries cannot do justice to the enormous task of screening and selecting judges to our highest courts. Only a full-time commission, independent of the government and the judiciary, can impart transparency and credibility to the system of appointments to the higher judiciary.
The interests of transparency require that the appointments process not be shrouded in secrecy, which breeds nepotism and favouritism. We need a system where names of meritorious candidates are shortlisted and put out for the public to raise their objections and provide relevant information that the appointing authorities may not have about the proposed appointees. Clearly-defined criteria for assessing the suitability of a judge would bring objectivity in the process.
The nation is burning with hatred, intolerance, exclusion and anger. Citizens are being compelled to “fall in line” with the views and thinking of those who are in office today. In particular, there is a concerted assault on minorities as well as liberals and dissenters. We stand muted and agonised as violence plays to the drumbeats of a bigoted polity. We need to affirm our constitutional values of free speech, the right to dissent and the rights of minorities. This is where the judiciary is expected to play a critical role to protect our constitutional values and preserve the rule of law.
It is important in these times to ensure that we strive to preserve the sanctity of the judiciary as an institution that will not compromise with its oath to protect the Constitution, nor allow itself to be prejudiced by popular sentiments, or surrender to intimidation. The government and the judiciary have been going back and forth on the memorandum of procedure for appointments to the higher judiciary and making a mockery of the call for transparency by not even sharing a copy of the document with the people.
Meanwhile many appointments are being confirmed in haste. We must ensure that the courts are not flooded with unworthy people who are not committed to defend constitutional values. The judiciary needs to assert itself vis a vis a government that is keen to subvert it from within. This is the time for people to stand up to ensure that this subversion of the judiciary does not take place.