In recent years the love affair of the public with the higher judiciary seems to be coming to an end. From tainted judges to resisting the public declaration of assets, the role of the higher judiciary has come under intense scrutiny. The common perception is that the judges are retreating behind a cloak of secrecy and refusing to abide by the very standards that they set for others. This is quite a fall from the past when the judiciary was seen as the last hope for controlling a corrupt and non-responsive government.

Several questions arise. Is the judiciary failing the people of the country? Are the judges justified in putting themselves in a special class? What steps can be taken to remedy the situation? The manner of appointment of judges and the manner of dealing with judges of questionable integrity are the two main features which are often the subject of scrutiny in this context. However, we need to be careful. While ensuring greater openness, we also need to ensure judicial independence. Otherwise the cure might be worse than the affliction. In fact, the true solution to the problem does not lie solely in the regulation of judicial behaviour. An equally important facet is to improve the quality of judges appointed. This task is tougher than it appears and will take a much longer time than the mere passing of a judges enquiry bill. But it is a necessary task if the judiciary is to regain its lost glory.

Greater transparency seems an obvious antidote to the problems besetting the judiciary. However, immense caution needs to be exercised in doing so. Judges have a unique place in our democratic framework and their special role needs a response which will address the peculiar situation of the judiciary. There are at least two features of the judiciary that set it apart from the other organs of the state. First is the essential non-democratic nature of the judiciary. The second is the nature of the duties judges perform and the need to insulate them from the executive.

Of the three pillars of the state, the relationship of the judiciary with the citizen is perhaps the most complex. The judiciary is the only wing of the state to which the common man has direct access. It forces the executive to obey the law of the land and gives succour to the otherwise disenfranchised. Courts are therefore a vital component in ensuring a just and fair democracy. On the other hand, the judges themselves are not elected by the people and are subject to no real democratic control. Even though the sovereign power is supposed to rest in the people of India, the people have no control over the appointment of the very person who interprets and applies the law framed by their representatives.

This takes us to the second feature of the judiciary. Courts are required to defend the rights of a minority against the state. In doing so, they often have to rule contrary to the public opinion which often guides the decision of the executive. Judges are also needed to protect the rights of alleged criminals even if the public is baying for their blood. Everyone is presumed innocent until proven guilty. This is more so given the level of incompetence and corruption among the police.  It is therefore obvious that courts of law must be insulated from the court of public opinion if justice is to be done to minorities, undertrials and other ‘excluded’ citizens.

Similarly, courts are not only called upon to decide private disputes but also to protect the rights of the citizen against unjust or arbitrary state action. In doing so, they may have to hold against the executive. Therefore, one cannot countenance a situation where the judiciary is subservient or answerable to the executive.

The question is how the tension between the need for insulation of the judiciary from public opinion and the executive and the need for democratic control is to be reconciled. In our country, this question is all the more vexed given the desire of virtually every government to muzzle courts. One can be reasonably certain that any control over the judiciary given to the executive will be misused at some time or the other. This is hardly a recipe for a strong judiciary which is needed precisely to control an overweening executive.

In the initial years of our democracy it appeared that a delicate balance was struck between the need for accountability and the need for judicial independence. However, this balance began to tilt in favour of the executive as it tried to encroach upon the functioning of judges. In the 1970s the government of the day superseded judges and called for a ‘committed’ (read ‘pliable’) judiciary. As a result of these onslaughts, the judges mounted a backlash and sought to provide themselves with ever greater insulation from the government. This was primarily done by taking over the manner of the appointment of judges. The law, as laid down by the Supreme Court, is that that judges to the higher judiciary are appointed by a collegium of other senior

The executive has virtually no role to play in the appointment of judges. This situation has been subject to much critical analysis. It is said that the judges are completely immune from  any democratic check. In appointing other judges, charges of favouritism are also common. Judicial commissions for appointment of judges have been mooted — rather than judges appointing other judges, a committee consisting of judges and politicians will appoint judges. It is true that the current system of appointment leaves grave misgivings. Senior judges are often superseded for no apparent reason leaving lingering doubts about the criteria of selection of judges.

However, giving any substantial power of appointment to the executive is fraught with the same danger which the court had sought to avoid when it designed the collegium system. Politicians even more than other senior judges would like to appoint pliable persons to high judicial posts. High Court judges would be forced to kowtow to ministers to get appointed to the Supreme Court. One solution could be to raise the retirement age of High Court judges to 65 — the same as in the Supreme Court. There would then be less of a reason for a High Court judge to listen to the executive. A more complete solution would lie in the nature of the people manning the judicial commission. It must have a preponderance of judges, with the politicians having a significant but not a decisive say in the manner of appointment. Members of the bar and civil society must also have representation on the commission. However, the ultimate say must still remain with the judges as they alone can judge who the best people for the job are. After all, lawyers who are to be appointed by judges regularly appear before them. The judges are best placed to determine the quality and calibre of such lawyers. The role of the other members of the commission would be to eliminate instances of arbitrariness and favouritism and nothing more.

Equally, the task of hearing and adjudicating complaints against allegedly dishonest judges could be heard and investigated by such a commission. Under the current system, the only manner in which a judge can be removed is by impeachment for proven misbehaviour. This too is after an investigation by a committee of two judges and a jurist. This system was envisaged for the protection of judges from frivolous allegations. But this system appears to be tilted too far in favour of covering up judicial misdemeanours. A committee of investigation is appointed only after an impeachment motion is admitted. There is no formal scrutiny before such a motion is moved by the members of parliament. Therefore there needs to be a mechanism where complaints against judges could be freely investigated before any action is contemplated against a judge. A judicial commission might provide such a solution. Frivolous allegations could be easily thrown out. Executive overbearance could be eliminated by the presence of a majority of judges. Yet such a commission would bring in much needed transparency into an otherwise opaque system.

We must not forget that investigation against and punishment to judges are merely a cure for an illness. If the institution is to be truly strengthened, the people appointed as judges must be of a high calibre. Since judges are ultimately appointed from a pool of lawyers, the quality and integrity of lawyers must also receive a high level of scrutiny. This must start from training of lawyers. Universities must have the same exacting standards for admission and training of law students as they do for doctors and engineers. Only the best students must be allowed to become lawyers. Similarly, the manner of investigation against corrupt lawyers must be strengthened. The present system of self-regulation appears to be completely ineffective. Dishonest lawyers are in abundance and seem to meet a fate rarely more serious than a slap on the hand. A legal commission must replace the bar council to investigate the alleged misdemeanours of lawyers.

At the end of the day, courts appear to be powerful given the constitutional framework of our country. Yet it is important to remember that they are actually quite powerless. The judiciary has no army or police to help it enforce its orders. The strength of the judiciary lies in the legitimacy it enjoys in the eyes of the public. While courts must be immune to the vagaries of public opinion, their moral authority can stem only from utmost rectitude and integrity.