K K VISHWANATHAN IN THE INDIAN EXPRESS
The Lokpal bill has thrown up an important issue for the judiciary to ponder. Should the Chief Justice of India or a sitting judge of the Supreme Court be a member of the selection committee to appoint the Lokpal and, worse still, the director of prosecution? The committee is to be chaired by the prime minister, with the speaker of Lok Sabha, leader of the opposition in Lok Sabha and an eminent jurist nominated by the president as its other members. For appointing the director, it is a three-member committee, chaired by the prime minister, and with the leader of the opposition in Lok Sabha, apart from the CJI or the judge. Ostensibly, the provision looks benign, but in reality is fraught with serious issues of legality and, more importantly, propriety.
Not that judges never sit on committees. The collegium for appointment to the higher judiciary is, after all, a committee of judges; judges sit on the committee for appointment of members of judicial tribunals; they preside over advisory boards to opine on the continuity of preventive detention; it is a judges’ committee that inquires into charges of misconduct against their own brethren; and judges adorn the governing bodies of premier law colleges in the country.
None of the functions enumerated above is inconsistent with the role demarcated for the judiciary under the Constitution. They all pertain to matters concerning the judiciary or aspects integrally connected with it. Membership in a committee for the appointment of the Lokpal or the director of prosecution can never be bracketed with the above.
But what is so improper or illegal about their being members of the selection committee? The Lokpal is a glorified investigating agency. It inquires whether a case for prosecution for corruption is made out, and if so found, a case is filed in the special court against the individual concerned. The director of prosecution heads the prosecuting wing of the Lokpal. These functions are purely in the executive domain. No doubt, an incumbent or retired chief justice or an incumbent or retired judge can be considered for appointment as chairperson or judicial member of the Lokpal. A simple procedure for consultation with the judiciary, as it obtains in the Karnataka Lokayukta Act, would have more than fulfilled the requirement of fairness. The problem is in statutorily compelling the CJI or a nominated sitting judge to be a member of a selection committee, predominated by political personages.
Such a role will not only undermine the high office of a judge, it will also be a serious affront to the doctrine of separation of powers and an assault on the independence of the judiciary. This is quite apart from the fact that it ill behoves a sitting judge to engage in animated discussion with politicians on the merits and demerits of a likely appointee. It is not uncommon that similar appointments have been challenged before the higher judiciary and there have been cases where the selections have been found fault with and struck down. The Restatement of Values of Judicial Life states that a judge shall not express his or her views in public on matters likely to arise for judicial determination.
The Constitution favours an arm’s-length relationship with mutual respect between the organs of the state. It is not just friction, any kind of cosying-up would also cause unease in the citizenry.
There is another fundamental aspect of the matter. Before any duty, not directly connected with the discharge of judicial functions, is assigned, the government should take the judiciary into confidence. What if, after the bill is passed, the chief justice refuses to participate? Would that be an abdication of a statutory function? Judicial time is invaluable and any encumbrance on it should be constitutionally permissible and should always be with consent.
It is time the judiciary discussed in-house the issue as to when and in what circumstances can the government either statutorily or otherwise involve incumbents of the higher judiciary and allot them duties. If a sitting judge is to be spared even for a commission of inquiry, on a definite matter of public importance, the convention is to consult the judiciary, before making the announcement. It is a serious matter concerning the independence of the judiciary and neither the government nor the judiciary should be placed in a predicament, by resorting to hasty measures.
The writer is a senior advocate at the Supreme Court, firstname.lastname@example.org