The unsavory controversy about the appointment
of the Gopal Subramanian as the judge of the Supreme Court was avoidable.
However, this further underscores the need for the National Judicial Commission
for the selection of the judges of the High Courts and the Supreme Court. In
fact it has become almost imperative in the present circumstances. The way the
appointment of the eminent lawyer was turned down by the Executive has
compelled the people to consider over this matter with all seriousness that it
deserves. India is perhaps the one and the only major democratic country in the
world where the judiciary has appropriated the right to appoint judges for the
High Courts and the Supreme Court. In all other countries, the appointments are
done by the Executive, mostly in consultation with the judges of the top
courts. In India the Supreme Court has made it a law by the judicial
pronouncement that judges of the High Courts and the Supreme Court can be
appointed the collegiums system, which consists of normally a handful of senior
most judges of the Supreme Court and the High Courts.
Earlier the Executive was being blamed for not
appointing the competent judges to the High Courts and the Supreme Court. The
allegations were also made that those pliable and in good books of the
government of the day were being appointed the judges of the High Courts and
the Supreme Court. It was also being said in jest that there are two types of
judges, 'those who know the law and those who know the law minister'. However,
the history bears testimony to the fact that the judges appointed by the
Executive have delivered many landmark judgments, which have stood the test of
the times and they are still serving as the beacon lights. The Executive
appointed judges like V.R.Krishnaiyer, Y.V.Chandrachud, Venkatachaliah,
P.N.Bhagwathi, Vivian Bose, H. R. Khanna and Jeevan Reddy are remembered for
their contributions to the development of jurisprudence through their
judgments.
Therefore, to say that the appointment through
the Executive was a wrong method and amounted to interference in the
independence of the judiciary is not fully true. We have seen that after 1995,
when the method of collegiums was introduced has not been hunky-dory because we
have yet to find the judges of high caliber and extraordinary competence who
have made marks by delivering the path breaking judgments.
There are many vacancies existing in many High
Court and they could not have been filled despite the scarce interference from
the Executive. So no else can be blamed for but the collegiums itself. This
shows that there has been no improvement in the process of appointment of
judges, which is sluggish and tardy as used to be the Second Judges case. The controversy
generated with regard to the appointment of Shri Gopal Subramanian may,
therefore, prove to be a blessing in disguise.
Mr. Subramanian is a brilliant lawyer and it
is always a delight to hear his arguments in courts. He is, without doubt, an
asset the bar and his elevation could have been a great tribute to the Supreme
Court. His appointment has been stalled for seemingly very frivolous reasons.
The present process of appointment, nevertheless, provides that if collegiums
had recommended his name again then the government would have been duty bound
to appoint him but the Supreme Court had given no inkling whether it wanted to
send his name again or not. That is why, Mr. Subramanian has, in his nine
page letter to the Chief Justice of India, has said that he felt let down by
the highest court of the land. Although, he has tried to give quietus to the
controversy but it has opened up more controversy with regard to the efficacy
of the collegiums system.
The demand for having the transparent National
Judicial Commission to appoint the judges of competence and unbiased mind has
certainly gained currency with this controversy. Presently, those who are
chosen by the collegiums of the senior judges to be appointed as the judges of
the High Courts or even of the Supreme Court have served as the law officers at
one point of time or the other. Thus the influence of the government can be
seen, may be not directly but indirectly. Since the government is the biggest
litigator, therefore, the Law Officers get frequent opportunities to appear
before the judges and are noticed by them to be picked up for their
appointment as the judges. However, it National Judicial Commission is
constituted then even those who are not in government panels but are intelligent
lawyers will get the opportunity to prove their mettle. Moreover, they will be
doing their job with impartiality and sincerity, which will go a long way in
curbing the corruption in the judiciary. For the purposes of accelerating the
process of justice delivery, the modern technology must be availed to the
maximum possible. Technology is the best leveler and it does not discriminate
between the two sets of people. It will definitely work for benefit of common
person. It will help in overcoming the problems of nepotism. Therefore, the
need of the hour is to immediately introduce the system of National Judicial
Commission for the selection of judges of the higher courts and the modern
technology for clearing the backlogs.
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