The Hindu Business Line : Constitutional balance

Never before in the history of independent India have 11 senior lawyers been constrained to submit a representation to the Supreme Court making serious allegations such as amassing of wealth and appropriation of public property and passing of inappropriate judicial orders in certain cases against a serving Chief Justice of a State High Court who had been reportedly recommended for appointment to the Apex Court. They have rightly requested the Collegium of Supreme Court Jus tices headed by the Chief Justice not to act on the recommendation until a thorough inquiry is made and the judge is cleared of all the allegations.

Merits an inquiry

The gravity of the unprecedented move becomes all the more perturbing in the wake of jurists of worldwide repute such as Messrs. V. R. Krishna Iyer (himself a former Supreme Court Justice), Ram Jethmalani, Fali Nariman and Shanti Bhushan lending their weight to the representation. Apparently, they have satisfied themselves that the material placed before the Collegium is specific and credible enough to merit an inquiry.

At this stage, it is simply a matter of making a proper inquiry into the allegations made formally by responsible lawyers. No doubt such an inquiry will take due account of principles of natural justice and requirements of public interest. Time is of the essence, however, if unscrupulous elements are to be prevented from muddying the waters and traducing public-spirited persons who have raised the issue. The root-cause of the embarrassment can be traced back to the Apex Court judgment in SC Advocates on Record Association vs The Union of India (1993), which in effect lays down that any appointments made by the President to the Supreme Court and the High Courts, has to be in conformity with the recommendations of the Chief Justice of India. This has reduced the Government to an automaton, with no scope for applying its mind to the suitability of the recommended names. It has also negated the Constitutional status of the President, representing the Executive.

Balanced role

The Government of the day and its successors, since then, have accepted the situation, apparently taking the ruling as the law declared by the Court, although it is only a procedure devised by itself without any manifest sanction in the relevant provisions of the Constitution.

The Law Commission of India headed by a former Supreme Court Judge, Mr A. R. Lakshmanan, in its 214th report, has pointed out how the right of final say given to itself by the Supreme Court “has completely eliminated and excluded the Executive” and how it is essential to restore the “beautiful system of checks and balances” under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role.” The Government should act on the Law Commission’s advice by appealing against the 1993 decision. The establishment of the National Judicial Commission also brooks no delay. With increasing reports of malfeasance and corruption among judges, leaving the evaluation of qualifications, quality and merit of the persons selected solely to the Collegium of Supreme Court judges is neither desirable nor in public interest. Judicial integrity is too serious a matter to be left solely in the hands of judiciary. It is incumbent on the judiciary to be seen and known to adhere to the imperatives of accountability and transparency.

The responsibility is on the Supreme Court to make sure that the conduct of the judiciary at all levels is absolutely above suspicion and that the procedure for getting rid of the black sheep is made simple and quick.

B. S. RAGHAVAN

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