The need for an independent judiciary is quite essential because we have always looked up to the courts with great faith and hope. In the 75 years since Independence, many powerful and mighty institutions have dwindled, but the judiciary has always remained to be the last hope for the masses. Hope and faith of the masses over the judiciary is directly proportional to its strength to be fair, which comes from ‘independence of judiciary’. However, the challenges that confront the ‘independence of judiciary’ today are two-fold; firstly, it is the lack of diversity and, secondly, the opaqueness and secrecy surrounding the appointment of judges. There is no denying that the collegium system has found many brilliant judges, but it still needs a lot of changes to address the lacunae.
Saying this is not meant to hint that the senior judges lack integrity or vision to find suitable people who can occupy the higher judiciary, but it is certainly intended to say that the selection process has inherent faults.
It is unfortunate when senior judges appear to be yielding to the Governments which is a fault that exists since long, mainly due to post-retirement rehabilitation of judges. In 2012, during a conference organised by the BJP legal cell, late Arun Jaitley, former Law Minister, had made a scathing assessment of judges. He said, "There are two kinds of judges; those who know the law and those who know the Law Minister. ……. We are the only country in the world where judges appoint judges……Even though there is a retirement age, judges are not willing to retire.” He further said, "Pre-retirement judgements are influenced by post-retirement jobs."
On this, the then BJP preident Nitin Gadkari said, "My suggestion is that for two years after retirement, there should be a gap (before appointment) because otherwise, the Government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise."
Under such circumstances, it is imperative to have the judicial appointments commission, in which the executive, legislature, judiciary, the bar and the public must be duly represented so that due transparency in the process of selection of judges can be ensured and lack of trust and suspicion in the public mind about judicial appointments can be warded off.
In the context of lack of diversity in the judiciary, it can be said that the representation of various communities in the composition is disturbing and needs attention. For example, the Brahmin community, which accounts for 4% of the population, occupies around 30% posts in the higher judiciary. So far, out of 47 Chief Justices of India, at least 14 have been Brahmins. From 1950 to 1970, the maximum strength of the Supreme Court was 14 judges, of whom 11 were Brahmins. From 1971 to 1989, 18 judges were Brahmins.
It is a matter of great delight that we had outstanding judges like VR Krishna Iyer, PN Bhagwati, YV Chandrachud, PB Gajendragadkar, whose judgments have strengthened the aspirations of masses to have access to justice and secure justice. But it is equally disturbing that persons from OBC, SC or ST communities never had a representation in the Supreme Court till 1980.
It is important that we have a robust, independent and dynamic judiciary, but the reality is it cannot be achieved without addressing the concern of equal representation of all communities including OBC, SC, ST and women and having a more transparent selection process for appointment of judges like having the judicial appointments commission in place.
It is essential for us to remember that while taking hard decisions to overhaul the judiciary, we cannot always afford to be populist or to secure the interest of any particular interest group but should keep in mind that the Constitutional idea of India stands supreme. In the words of Justice Gautam Patel of the Bombay High Court, “History will not judge us by our highways or statues; it will judge us by how well we have preserved the constitutional idea of India and saved it from being undermined. Governments will come and go but the idea of India, the constitutional idea of India, parliamentary democracy must be protected. In the constitutional scheme of things; there is no such thing as too much noise or too much dissent.”
(The writer is an Additional Central Government Standing Counsel, Central Administrative Tribunal, Cuttack Bench and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com. Views expressed are personal)
