‘Government is largest litigant, principles of natural justice demand that it is not seen to be appointing judges’


The fracas in the Supreme Court over alleged judicial corruption in the hearing of matters related to medical college admissions, following the arrest of a retired high court judge, put the judiciary in the spotlight. Noted legal scholar Upendra Baxi believes structural reforms and not sensationalist episodes can save the day. He spoke to Jiby J Kattakayam on the road ahead for judicial reforms:

Did the conduct of SC judges and lawyers pass muster?

I am confused. One lawyer claimed chief justice of India was named in an FIR while order of the bench constituted by the CJI says clearly that no sitting judge is named. If no judge’s name figures then no controversy would survive. On Justice Chelameswar constituting a bench, it is a rule that CJI sets up benches. He is an eminent and senior judge and would have known this position. On a mere suspicion or allegation should we allow a breach of convention?

But there is support for Justice Chelameswar.

Let’s go further. There are proper procedures locally and internationally mooted to serve as guideline or roadmap. We have Judges Enquiry Act guiding Parliament on impeachment. The Judicial Standards and Accountability Bill envisioned an oversight committee to probe complaints against judges. I think UPA introduced four bills on judiciary. NDA created the National Judicial Appointments Commission (NJAC). These bills and their intent have been forgotten. We have Bangalore Principles of Judicial Conduct 2002, which is a worldwide standard. In 1985 UN approved the Universal Declaration on Independence of Judiciary known as Singhvi declaration. Procedures on conduct and investigation have been mooted in national and international fora. We should concentrate on structure rather than episodes.

What structural reforms do you wish to see?

MPs can review the collegium system, which is not a constitutional body. But politicians seem to have accepted the collegium. An affidavit filed by the law secretary in 1991noted that out of 400 appointments to HC, 394 had CJI’s concurrence. The system was working well and was yet changed. Parliament can still pass a law in accordance with SC verdict in NJAC case, which does not disturb primacy of judges. Government is largest litigant and principles of natural justice would demand that it is not seen to be appointing judges. Sky is the limit for Parliament to evolve a different NJAC with wide consultations. I would want judicial standards and accountability bill to be considered again. Appointments need to be proportionate to population and vacancies must be filled faster. Retirement dates of every judge are known on their day of appointment. Retirement age must be extended to 70 to make best use of available talent and experience.

Does transferring tainted judges serve ends of justice?

If I am corrupt, will I change by location? The only remedy is impeachment. Parliament must act more strongly on judicial corruption. Why should impeachment take so long? Can’t Constitution be amended to make it timebound and high priority? Nepotism is another matter. There are several cases of “son-stroke” and uncle judges. SC and Bar Council must be more vigilant to curb conflict of interests.

SC started publishing recommendations on judicial appointments.

It is welcome because SC has accepted accountability in principle. It may not contain all the information collegium has on a candidate. But earlier there was total silence. Now we get some insight on elevations and transfers and the parameters for their elevation or rejection.

Is there adequate diversity?

There is an inclusive policy of elevation without quotas. President KR Narayanan complained that SC was not appointing enough Dalits. There is criticism that SC does not have enough female judges but recall that SC got its first woman judge in 1989. Today many HCs have women chief justices. So more women will reach SC but I don’t see a woman CJI before 2025, even then.

What are the threats to the judiciary’s credibility?

Judges cannot reply to allegations. They can only speak through judgments. Allegations should be fair, made only after credible threshold of evidence. Weak allegations must be ignored like anonymous allegations. Folklore of corruption, or what people say about corruption, should be distinguished from the fact of corruption, which is rarely discovered. I am not saying no judge is corrupt or all judges are corrupt. Answers cannot be thrown up by episodic incidents. Indians are indifferent to structures and only delve into episodes of malfunctioning. These episodes are important as symptoms of how systems go awry. Despite several committees on prison reforms, several Law Commission reports no systemic action results. Our ultimate goal must be to progress towards more decency in society and we can do it only through structural reforms. Episodic changes don’t sustain and no lessons will be learnt.