Readers who have been following this column know that I am no fan of the Congress. It is thus in reluctant surprise that I find myself in agreement, up to a point, with at least one Congressman. More surprising yet, this comes on an issue where I disagree, in part, with His Honour the Chief Justice of India.
The Congressman I refer to is M Veerappa Moily, chairman of the Second Administrative Reforms Commission. The Commission's report to Dr Manmohan Singh is undoubtedly destined to raise a lot of dust, no least for its recommendation that the office of the prime minister be kept out of the purview of the Lok Ayukta. (Interestingly, this flies in the face of the current prime minister's own opinion, which he has publicly expressed.) But the former chief minister of Karnataka came up with a valid, or at least a defensible, point when he wrote that judges too must declare their assets.
For the record, this is already required of the legislative and the executive branches of government in India. The Election Commission requires all candidates in parliamentary and state-level polls to place their assets on the record for public scrutiny. In the executive wing, similar demands are also made not just on ministers (who are necessarily also legislators in our system) but on civil servants too. Is there any reason why judges too should not be asked to follow suit?
It is equally tempting to dismiss Veerappa Moily's suggestion out of hand when he says that the other branches of government should have some role to play in the selection of judges. Given the horrible reputation of politicians -- something that they probably deserve one must admit -- it is easy to laugh off this recommendation. After all, the judiciary has, over the past decades, proven to be an institution that truly earns the respect of all Indians.
However, the wise man thinks in terms of institutions rather than individuals. Seen in that light, it is a little hard to say outright that one branch of government, the judicial wing, should exercise the right of supervising the other two, but that nobody should peer too closely at the majesty of the Bench. That is not a defensible position.
In the final analysis, ministers are responsible to the legislatures, and the legislators in turn must renew their mandate from the people at large at regular intervals, in the form of elections. But there is no such check on the judiciary.
The men and women who framed the Constitution gave Parliament the power to remove a judge who transgressed the proper code of conduct. But, in order to protect the judiciary from the whims and fancies of politicians, they also made the process of impeachment incredibly cumbersome. So, how does one discipline an errant member of the Bench?
The fact is that there is very few checks in the system once one reaches the level of a high court bench. A judge may be transferred, or he may be denied any work. But, unlike members of the executive and legislative wings, he cannot actually be removed from office.
We in India are incredibly lucky in our judiciary. Taken as a body it is undoubtedly free of taints. But let us not pretend that every single member of this elite corps is free of controversy.
Shamit Mukherjee, once a member of the Delhi high court, became the subject of a Central Bureau of Investigation investigation. He has been accused of participating in the so-called Delhi Development Authority Scam. The investigators allege that he gave 'doctored orders' in return for 'gratification'.
Justice B J Shethna and Justice P B Majmudar of the Gujarat high court are currently embroiled in an all-too public controversy that does nothing to enhance their image. When the Supreme Court Collegium announced its decision to transfer Justice Shethna from Gujarat to Sikkim, he reportedly announced that he was being crucified 'for speaking the truth'.
And a couple of months ago, in December, the newspapers reported that President A P J Kalam said that the appointment of Justice Vijender Jain as chief justice of the Punjab and Haryana high court involved 'divided opinion'.
There has to be some kind of mechanism in place to deal with such issues when they raise their ugly heads. And to borrow an adage from the medical profession, the best form of cure is prevention.
The American system gives judges as much protection from political interference as does the Indian. But the crucial difference is that judges at the higher levels are nominated by the executive, after which the nominee must endure a searching examination by the legislative. This is not a formality, the Senate Judicial Committee has, on several occasions, turned down a presidential recommendation even for the US Supreme Court.
To be honest, I am a little uncomfortable of introducing the American system of publicly televised confirmation hearings to India. It can turn into a circus, especially when politics are polarised. But there has to be some middle path between that and the absolute hands-off policy we have in place today.
At the very least, the idea deserves to be discussed, rather than dismissed out of hand. If for no other reason than that a public airing of views by the judiciary itself would almost certainly be better than any 'reforms' forced upon it by politicians. (Yes, I am thinking of the Judges Bill working its way through the layers of the United Progressive Alliance ministry.)
Declaration of one's assets is not really interference by other wings of the government. It is, if anything, a healthy precaution taken to ward off such intervention. I might, and do, disagree with other stands taken by Veerappa Moily but on this one issue he does have a point.
(Declaring assets would also, hopefully, raise a debate on judicial pay. It is no secret that judges are shamefully underpaid compared to the enormous fees commanded by the senior lawyers who appear before them.)
The old principle of Caesar's wife applies, that she should not only be pure but seen to be pure.
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