BY KALEESWARAM RAJ IN THE NEW INDIAN EXPRESS – EXPRESS BUZZ
The allegations raised against the former Chief Justice K G Balakrishnan are serious in nature.After the decision in Veeraswamy’s case (1991(3) Supreme Court Cases 655), even for registration of criminal cases and initiation of prosecution against a retired judge of the Supreme Court or High Court, no previous sanction by the government is required.
Likewise, a probe under the Commissions of Enquiry Act, 1952 also is quite possible. Such a course may help in making the matters known to the public. As it is often said, “sunlight is the best disinfectant”.Justice Balakrishnan has got a duty to respond. His silence may be taken as giving unpleasant messages to the people of the country. It would also pose challenges to the legitimacy of the institutions. “Human factors” in the institutions are inseparable from the institutional factors in a working democracy. To quote Prof B O Nwabueze, “however carefully the institutional forms may have been constructed, in the final analysis, much more will turn upon the actual behaviour of (these) individuals” .
To say that the question of assets of the relatives is not a matter of concern for Justice Balakrishnan would be naive, if not irresponsible.Allegations of corruption are very often connected with acquisition of wealth not only by the person against whom allegations are made but also with his or her close relatives. The linkage between corruption and acquisition of wealth is often quite obvious. Generally speaking, money/wealth may not be the only means of corruption. However, in developing countries, it still remains as a prominent means.
Why Justice Balakrishnan should quit?
Continuation in a key post amidst the allegations would amount to a disservice to society at the expense of the state. However, according to Section 5(1) of the Protection of Human Rights Act 1993, the Chairperson of the NHRC could be removed from his office only by the order of the President on the ground of proved misbehaviour or incapacity.There has to be a reference to the Supreme Court by the President.Only after an inquiry by the Supreme Court and only on the basis of a finding regarding the proved misconduct as the chairperson of NHRC, he could be removed. Such misbehaviour should also be one associated with his conduct as chairperson of NHRC.According to Section 5(2) of the Act, the President can order the removal of chairperson of NHRC for the limited reasons like insolvency, paid employment, infirmity of mind or body, conviction in criminal cases etc. Therefore, it is clear that the removal of Justice Balakrishnan from the post of chairp e r s o n o f NHRC would be practically difficult, if not impossible.It is also doubtful whether the allegations with respect to his tenure as the C J I would be sufficient for his removal from the present post, going by a strict interpretation of Section 5 of the Protection of Human Rights Act 1993.The legal hurdles in removing Justice Balakrishnan should not, however, justify his continuation.
On the other hand, the resignation of Justice Balakrishnan from the chairpersonship of NHRC becomes all the more a moral imperative due to these legal impediments.
A case for reformation
The Balakrishnan episode also puts forward a strong case for judicial reformation in the country.Unless and until we put an end to the system of judges appointing judges, no judicial reformation would be possible. The method of selection of judges to the High Court and to the Supreme Court by the collegium should be abolished.A legislative activism towards a constitutional amendment in these lines is the need of the hour.The present system is the direct result of the judgment in the second and third judge’s case reported in 1991(3) SCC 655 and AIR 1994 SC 268 respectively.
According to these judgments, the appointments of judges in the Supreme Court and High Court can be done only with the concurrence of the Chief Justice of India and the collegium headed by him.The word ‘consultation’ used in Articles 124 and 217 of the Constitution was virtually rewritten by the Supreme Court as ‘concurrence’ in the 2nd and 3rd judge’s case. Thus, without the concurrence of the CJ1 and the collegium headed by CJI, presently no judge can be appointed in the High Court or in the Supreme Court.It is apparent that consultation does not mean concurrence.Nor it can be so interpreted.
In fact, the question as to whether the appointment of judges requires the concurrence of the Chief Justice was seriously debated in the Constituent Assembly.Dr Ambedkar responded to the said suggestion in the following words: “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment.I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a danger proposition”.(Constituent Assembly debates quoted by T.R.Andhyarujina Judges and Judicial Accountability Universal, 2003 P.113).
Ambedkar belongs to history.And history is the best test for his words.
There is a clear negation of Ambedkar’s wisdom in the judgments in the 2nd and 3rd Judge’s cases which altered the constitutional scheme in the guise of interpreting it. In the words of T.R.Andhyarujina: “The new dispensation of appointment and transfer of judges laid down by the Supreme Court has not been well received in India.The Bar has been critical of it. A judiciary which has total control over its own composition would have a conformist or club like outlook. Judges tend to find virtues in others who display the same outlook.
It is most unlikely that a Denning or Kirby, or a Bora Laskin or a Krishna Iyer would be appointed under this system.
A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favour of one or other member of the collegium for an incumbent cannot be ruled out”. (Ibid.P.120)
Justice Balakrishnan’s episode puts forward a strong case for introspection. It also calls for immediate steps for a constitutional amendment to ensure that the power to appoint judges does not vest with the judges themselves.As often demanded, there is a need for National Judicial Commission for selection of judges to the High Court and to the Supreme Court. Such commission should include not only the Judge(s) but also the representatives of the political executive (government), the Opposition Leader, the representatives of the Bar, academic circles or/and intelligentsia and also such other eminent persons.There has to be a participative and transparent selection process.Even a public debate is desirable.The present ailment is so serious that it requires treatment right from the process of selection . The hurdles to the reformative process created by the judgment in the Judge’s cases could be removed by an appropriate constitutional amendment.
(The author is a lawyer at the High Court of Kerala.Kaleeswaram@yahoo.co.in)
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