Open Book

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on February 16, 2010


Justice A P Shah, who retired as chief justice of Delhi high court last week, has publicly expressed his “hurt” for having been passed over for promotion to the Supreme Court. His disappointment at having been overlooked shouldn’t be seen as an instance of personal angst. Instead it should be used to question the veil of secrecy that shrouds the appointment of judges to the Supreme Court and to allow for more transparency.

That Shah, one of the seniormost high court chief justices, was hard done by is well accepted. He had a good reputation as a judge and during his 21-month tenure as chief justice he passed several progressive judgements, including legalising gay sex and putting the office of the Chief Justice of India under the ambit of RTI. Indeed, one of India’s most well-known jurists had publicly said that Shah was one of the best judges who never made it to the apex court. While we do not know what went against him, the bypassing of Shah goes to show that the appointment process could be fine-tuned.

Unlike the appointment of Supreme Court judges in countries such as the US, which is political and subject to intense public scrutiny, the process is opaque in India. Several Supreme Court judgements have reiterated that a collegium headed by the CJI is responsible for appointment of apex court judges. It is a closed-door process that cannot be questioned by anyone. But because good judges are overlooked, there have been calls for making the selection process more transparent. The parliamentary standing committee that looked into the Judges (Inquiry) Bill, which was introduced in 2006 and has since lapsed, suggested that appointment of judges should be entrusted to a body wider than the present collegium with representation both from the judiciary and the executive.

Such suggestions need to be taken into account and incorporated into the Judicial Accountability and Standard Bill, which is meant to replace the earlier Bill. The independence of the judiciary, which is one of the most well-regarded institutions in the country, must be maintained at all costs. But greater transparency is not going to do any harm either to its independence or the high standards that the judiciary is supposed to maintain. Indeed, it could restore the lustre that the judiciary has lost in recent times.


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