Trust Deficit, My Lordship

Judges to the high courts and the Supreme Court of India, I am afraid, have almost always been selected by a small cabal of lawyers and politicians. In the states, proximity to the Chief Minister and the Advocate General more often than not decides the fate while for the Supreme Court, the subjective opinion or preference of the union law minister and a few senior judges prevails.

Caste, as always, also plays a role. A former Advocate General once confided to me that he had been asked by a former Chief Justice of Patna High Court to recommend names of lawyers from his community for elevation as judge. He did and the nominee went on to serve on the bench for over a decade. Senior lawyers are not averse to share how they promoted their juniors— on one occasion because the junior’s wife played Bridge with his wife, reminding many of us in the profession of what Justice A.S. Anand poetically described in a lecture by quipping, “lamhon ne khata ki hai, sadiyon ne saja payee” ( several ages pay for  momentary lapses).

While the US President nominates judges to the Supreme Court, the candidates are grilled and approved by the Senate, and in full glare of the media and people. And while the UK does have an Appointment Commission, no judge of the Supreme Court sits there. Vacancies are advertised and the Commission shortlists the names. But while the Collegium system in India is not answerable to anyone but to the executive to a limited extent, it would hardly be an exaggeration to say that a large majority of our judges in the high courts and the Supreme Court are from a limited number of families.

Take the example of a Supreme Court judge, Mr Justice Shiva Kirti Singh. His cousin, Justice B.P. Singh, was also a judge of the Supreme Court. Their grandfather, Justice B.P. Sinha, was the Chief Justice of India. Fathers of both B.P. Singh and Shiva Kirti Singh were high court judges. And yet another cousin of Justice S.K. Singh is currently a judge in the Jharkhand High Court.

Appointment of judges is not the only issue that the judiciary needs to sort out. There is presently no mechanism to deal with complaints against judges. A Supreme Court judge had initiated a contempt case when he was the acting chief justice of a high court, which under the law he could not have done. The lady against whom the contempt was initiated, in desperation filed a case under section 319 of the IPC for passing illegal orders. While her case was summarily dismissed, a fresh case was initiated against her for interfering with dispensation of justice. The case lingers on in the court while the judge adorns the bench in the apex court.

The proposed judicial appointment commission should neither have judges nor lawyers as members. Nobody can after all be a judge in their own case. One way out would be to have former Presidents, Prime Ministers, Speakers etc as members, possibly former CJIs too. In the US politicians have made excellent judges and there is no reason why politicians cannot do a good job in the appointment commission here.

Arvind Kumar is a lawyer practicing at Patna