Primacy of executive, a dangerous move - by Anil Divan

The Hindu Wednesday, Oct 22, 2008 Opinion - Leader Page Articles


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Crisis in the higher judiciary

The Ghaziabad Provident Fund Scam was followed by Rs.15 lakh in cash being sent by a law officer to a sitting judge of the Punjab and Haryana High Court now allegedly meant for another woman judge.

Justice Soumitra Sen, a serving judge of the Calcutta High Court has been identified by the Chief Justice of India as fit for impeachment. A few years ago, Justice Shamit Mukherjee of the Delhi High Court was accidentally discovered to be indulging in dubious transactions when phones of certain other officials were under surveillance by the police.

The reputation of the higher judiciary is at a low ebb. To quote from the author’s article “Judging the judges” ( December 5, 2002), “Unless vigorous in-house action is taken by the judiciary to repair the damage, public opinion will call for legislative intervention by Parliament. A legislative mechanism unless properly framed may be subversive of judicial independence … Every adversity is an opportunity”.

There is well-intentioned and legitimate criticism of the collegium system as now functioning. The present system of appointment requires radical restructuring — but the reform must be in the right direction. Reviving a failed system is a recipe for disaster. The final word in appointments to the higher judiciary can never be safely entrusted to fractious coalition governments — weak on governance, soft on terrorism and high on corruption. Each coalition partner will demand its quotas on the High Bench as well as the High Courts — on occasions threatening withdrawal of support. An increasing politicisation of the judges indebted to political factions is not a result “devoutly to be wished.”

In our dissatisfaction with the present system, let the family silver not be stolen by the executive. Let the Bar and civil society give a clear response to the Law Minister that under no circumstances can the old system of primacy of the executive be restored.

The way forward is a transparent, accountable and open merit system, but that is another call.

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