How to pick judges is a trying matter

In the larger scheme of things, it is just as well that the Modi government has chosen its very first session of Parliament in which to seek to effect changes to the mode of making appointments to the higher judiciary. In light of frequent criticisms of the present collegium system in which a committee of judges led by the Chief Justice of India appoints judges to high courts and the Supreme Court, the UPA government had brought a bill under which HC and SC judges would take office on being named by a commission that would comprise the Chief Justice and his colleagues as well as members from the government side.

The present government has superseded the UPA’s bill and brought in the National Judicial Appointments Commission Bill, 2014. The spirit of what the NDA is doing — enabling a combination of members of the judiciary and those chosen by the executive (including the leader of the largest party in the Lok Sabha) — to decide appointments and transfers of HC and SC judges is no different from that of the UPA, though some procedures may be at variance. We can live with that. A change away from the collegium system was called for, given that corruption, irregularities, and the playing of favourites in senior judicial appointments had come to be talked about.

Recent blogs of former Supreme Court judge Markandey Katju with regard to judicial corruption have perhaps lent a dramatic edge to the debate and made the government speed up its act, although it must be stated that Mr Katju has conducted himself in the manner of a maverick. Retired Chief Justices have felt obliged to dissociate themselves from his scathing assertions and his finger-pointing. On Monday, Chief Justice of India R.M. Lodha was anguished enough to come to the defence of the collegium system, saying it had thrown up people like himself and that the trashing of the whole system implied running down all appointments, including his own.

There is a point there, of course. It can be no one’s case that every appointment made under the collegium scheme was faulty, mala fide, or unmerited. Justice Katju, who appears to suffer from a streak of self-righteousness, himself is a collegium product, as are many upright judges. Nor can it be said that the new system sought to be put in place will not throw up bad apples. However, if we are to take a system view of things, it may be safe to say that we should not opt for either government appointing judges or judges appointing themselves. The first undermines judicial independence, a keystone of democracy, while the second can produce malpractice. So, a mix of the two may be a practical way out.