The law minister announced recently that the government would soon bring in a constitution amendment bill to change the system of appointment of judges to higher judiciary, the supreme court and the high courts. But focusing only on higher judiciary is akin to counting the trees and missing the forest. Several issues come up if we look at the forest – of appointments.

The first is why and how do our law ministers get concerned about issues. Nearly 20 months ago, the then incumbent got concerned about electoral reforms and announced, with much fanfare, accompanied by the then chief election commissioner, about seven regional and one national consultations. The regional consultations did happen, in fits and starts, but then that minister was shifted and the current incumbent was brought in. The national consultation never happened, a couple of draft bills on electoral reforms were prepared, media reported that the minister had had meetings on the issue with the prime minister, the chief election commissioner of the day demitted office, but the end result has been naught, at least so far. Now, there does not even appear to be talk of electoral reforms.

All of a sudden, the current minister is so concerned about appointments to higher judiciary that a constitutional amendment is being contemplated. True, the constitution has been amended many times but most of the amendments happened in a different political climate in the country when the polity was not so fragmented and not so brazenly partisan.

“We are fully committed to changing the procedure for the appointment of judges,” said the law minister, an accomplished lawyer himself. The current procedure has been in place since 1993, when the supreme court put it in place. The detailed rationale is given in the case Supreme Court Advocates-on-Record Association and another vs
Union of India, Writ Petition (Civil) 1303 of 1987, the judgment for which was pronounced on October 6, 1993. It is debatable if the situation of the judiciary, one of the three pillars of democracy, has deteriorated significantly more than the other two pillars: the legislature and the executive.

Yes, the judiciary has its weaknesses, some of them glaring, such as huge backlogs but then who is the biggest litigator in the country, being the petitioner or respondent in the maximum number of cases in the higher courts—one estimate says it is the government. And whose counsels seek the maximum number of adjournments? Another estimate points to the government again.

The minister is also reported to have said that the government was only trying to bring in transparency in every constitutional body in the larger interest of democracy and good governance and that the government was not bothered about the “problems” it would have to face as happened in the case of the Right to Information (RTI) Act.

In this context, looking at the forest, it might be appropriate to think about transparency or otherwise of all other appointments made by the government. Since the minister referred to the “problems” with the RTI Act (which was championed by his own government, and for which it rightly deserves to be commended), it might be instructive to reflect on how the appointment of information commissioners have been made, and continue to be made.

It is ironic that appointments under a law, the raison d’etre of which is transparency, are completely non-transparent. An inspection of the file related to these appointments some time ago, done using the provisions of the RTI Act itself, revealed that the concerned bureaucrat, the secretary of the department of personnel and training (DoPT), puts up a note to the committee consisting of the prime minister, the leader of the opposition in the Lok Sabha, and a “union cabinet minister nominated by the prime minister” who is invariably the minister in-charge of the DoPT, obviously “duly constituted” as per the RTI Act, informing the committee of the number of vacancies for information commissioners that exist, and suggesting or proposing a list of names that should be appointed for those posts. The committee usually approves the names and those are forwarded to the president for formal appointment. Differences of opinion are rare, in those cases where the name of a seemingly controversial person is proposed and the leader of opposition has an objection. (The most celebrated case of such a difference of opinion was that of PJ Thomas’ appointment as central vigilance commissioner that finally led the supreme court to enunciate the doctrine of institutional integrity.)

The process through which the proposed list is arrived at is shrouded in total secrecy. When the file was inspected, resumes of a large number of people were found in it, some who had offered their own candidature and some who had been recommended by “dignitaries”. No information was forthcoming about how some of these “candidates” were “chosen” to be “recommended” for appointment. The fact that more than one secretaries of the DoPT have been appointed as information commissioner may contain a story of its own.

It is also somewhat baffling that the desire to “bring in transparency in every constitutional body in the larger interest of democracy and good governance” does not seem to have touched one of the oldest constitutional positions, that of governor of a state. Inspection of the file concerning appointment of governors, done again courtesy the RTI Act, revealed even more startling information. All the file had was a note initiated by the prime minister’s office that, referring to a discussion between the prime minister and the home minister, said that it had been decided to appoint the following persons as governors of the following states. The home ministry then got into action, obtained the consent of the chief ministers of the respective states, prepared the warrants of appointment, sent it to the president, and the same were issued. The whole process took all of 24 hours! Talk of speed and efficiency of operation, and of course, of transparency.

When a body with such a track record wants to bring in transparency in the appointment of higher judiciary, and is willing to go to the extent of even trying to amend the constitution, is it not legitimate to look for the motivation behind such an action? Is it, by an outside chance, a possibility that despite its many drawbacks, weaknesses, and faults, the judiciary is the only institution, along with the election commission, that still retains significant independence from the executive, and occasionally pronounces judgments that the government of the day and the entire political class do not like?

This is a question to which we can never have a definitive answer and each one of us has to make one’s own judgment. It is also a warning to the judiciary to act quickly, and decisively, to make improvements in its own functioning before the political class makes inroads into its independence.

[Views expressed are personal.]