Some time back a lawyer friend of mine jokingly shared an anecdote about the boastings by the brother of a newly appointed High Court judge. He mentioned how the brother boasted about the grease payment of 1.5 Crore rupees for the appointment as a High Court judge and how he claimed that the money would be recovered within six months. This refreshed in my mind what I wrote about the judiciary in my book “Towards a Perfect Democracy” in 1999. It also reinforced my opinion about the faulty system of appointment of judges followed in the Indian judiciary. I would like to share with you what I wrote many years back.
The appointment of Judges itself preannounce the position of judiciary. There is not the slightest doubt that the judicial appointments must be totally on the basis of talent, intelligence and knowledge and not on any other criteria, lest it may defeat the purpose of judiciary. Appointment of all level of Judicial Officers and/or Judges should be only through a competition of merit and intelligence at all times. Such examinations can be clubbed with psychological assessment/psychometric testing but there mustn’t be any other criteria and/or standard. A nomination of a reputed or known advocate to the position of a Judge is nothing but a joke on democratic setup and more so on a independent judiciary.
The regretful scenario in India can be gauged from the fact that despite proving their merit in state judicial examinations only one third of the judicial officers appointed through the exam-of-merit are able to reach the High Court and almost no-one is able to reach the Supreme Court (To my knowledge only three judges from the judicial services could ever reach the Supreme Court in the last 55 years). These judicial officers are invariably superceded by their batch mates who were left behind on the basis of merit at the first stage but however who in the long run prove smart enough in socializing and maintaining the right connection in the political and social world.
This practice of nomination was adopted by the oppressors of my Country at the time of devising of a judicial system. This was done mainly because they wanted to be in-charge of the most powerful institution of the State and wanted only those officers/Judges who would endorse to their views and follow instructions. Moreover at that time there was no qualified standard criteria for selection of even the people in the lowest or any court at any level. After the independence of India from the foreign oppressors, the aristocrats adopted more or less the same structure as it suited their purpose. At the time of independence most of the people in-charge of the framing and drafting of the legal process were lawyers, aristocrat and big shots and they knew the power of judiciary. They knew that they would be in power and in a position to manipulate the system to give power to people who were close to them and could safeguard their interest. They preferred to include the clause of nomination of Judges in its vaguest form, so that it added to their power. The framers of the Constitution preferred to safeguard the interest of a few (including the political interest of that time and which is carried to this date) over the interest of millions, who in good faith, had given them power to act.
But many questions remain to be answered. How can one expect the judiciary to be free and fair if such people are appointed as the dispensers of justice, who till some time back as a law practitioners had their biases and business interest; Who were in the profession of law for financial gains and interest; were members of parties and unions; supported a political ideology; had religious biases; asked political leaders for support for nomination for the post of Judge; and what not?
Does the State assume that these nominated judges will get some divine enlightenment and they would be automatically debriefed after their appointment? Or is it thought that after their appointment they will totally become unbiased and judicious? Can we assume all such judges to be corruption free too? Is the skill-set required to be a good and successful lawyer the same as that required for a good Judge? We must answer these questions if we want an unbiased and good judiciary.
In any State where majority of the Judges are nominated (specially in the superintending courts); where the majority of Judges in a High Court are nominated and almost all the Judges of a Supreme Court are nominated (it wouldn’t be wrong to say, indirect political appointments), and where there is no foolproof system of nomination, the judiciary of that State can never be free, fair and corruption-free.
It may be argued in favor of nominated appointments that the lawyers who work in the higher courts know and understand the functioning and procedures of higher courts better. But I am afraid that such excuses can not be bought because we are not talking about ordinary people but highly intelligent and efficient people selected through a well thought and implemented procedure (the State judicial services), and are used to working under extreme pressures. A simple training after every promotion will add to the talent of the promoted Judges and they will prove to be better in most of the cases over their mates who opted for the profession of a lawyer and later-on owing to their contacts or after a second thought opted to be Judge.
The high work load in the lowest court will always provide the ideal platform for these Judicial Officers to polish themselves and learn more of the practical application of law. It shall be of great help to them in the higher courts of justice. The promotion structure should be such that those who join young into Judicial Services, have a fairly good chance of reaching the top and staying there for considerable time and themselves carry the objective of judiciary further.
If there are people who still think that it is plausible and that there is nothing wrong in the thought that the State requires some Judges (say 10%) even at the second level, who have some experience of advocacy and have seen the things from the other side of the table: still in such a case, direct appointments of Judges; immaterial of the method of such appointments; is not recommended. It is always possible to have an examination among the lawyers aspiring for the position of Judge. Lawyers successfully qualifying the examination may be recommended by an appropriate procedure for recommendation.
I know it would be aggressively argued that senior or reputed advocates qualify by virtue of their experience and that it is a insult for the reputed senior advocates to apply for examination and qualify it; but then people who do not apply or feel ashamed to be a part of procedure, or feel afraid of appearing, or have some inhibitions about a procedure, do not qualify on account of their unreasonable emotional expressions.
The structure of appointment of Judicial Officers and dispensing of justice should be absolutely transparent and perfect, least people will loose faith in justice and the Government at large. The loss of trust in judicial proceedings will reflect in all departments of the State (as is the present state of affairs). An odd Judicial Officer, here and there, acting more because of his/her personal guts, than any other reason, may not be able to change the scenario. It may kindle a ray of hope, but the broader change is the ultimate solution.