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LATEST NEWS UPDATES | ‘Some serious sidestepping is coming from the judicial institution’ by Arun Jaitley

‘Some serious sidestepping is coming from the judicial institution’ by Arun Jaitley

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published Published on Aug 20, 2011   modified Modified on Aug 20, 2011

The first thing that comes to our mind is — and this has nothing to do with this particular case — that even in 2003, when this misconduct was continuing, how come such persons get to be appointed? It really seriously means that we have to revisit that process. Originally, when the Constitution was framed, we had a system where judges were appointed by the executive in consultation with the Chief Justice of India. Ordinarily, the government would be bound by the Chief Justice’s advice.

In 1993, that system got changed by a judicial interpretation and the advice of the Chief Justice of India was binding on the executive government. That is the position today. Today, even though the government is a part of the consultation process, it can refer the case back once, but effectively, our experience has been — this was the experience when the NDA government was in power, this is the experience of the present government — that we are living in a system where judges appoint judges. The government, at best, has only a very marginal say. There is no other process by which there is any kind of participation in the process of appointment of judges.

Sir, both the pre-1993 system and the post-1993 system had several handicaps. The best in this country are not willing to become judges. We have to seriously consider why. At times, the selection process, where only judges appoint judges and the process is a non-transparent process, will always create situations where rumours in the corridors of the court and among those who are close observers of the judicial process will be far too many...

We should seriously consider a system which is being debated, about setting up a national judicial commission. The national judicial commission must have judges. It must have the participation of the executive. It can also have participation of the people selected by a collegium of some eminent citizens. It can’t only remain the domain of the judges.

...The criteria for appointment today does not exist. Is it today the discretion of the collegium? Collegium is also a system of sharing the spoils. When the high courts recommend, members of the collegium share the spoils. This is an impression which close observers have. Therefore, discretion — whether the collegium system continues or we have a National Judicial Commission — must also be now statutorily regulated, so that arbitrariness can be avoided. After all, there have to be some objective criteria. Except elected offices, there is no other appointment which is made where there is no threshold criteria for entry...

Therefore, we need, I am glad the prime minister himself is here, a system where this should be seriously reviewed.

Secondly, sir, the matter of judges judging judges and nobody else participating in this is also an issue which requires a serious review and which requires to be referred to, in my opinion, the same national judicial commission.

The third issue is this. When appointments are made we have to seriously consider how the institution functions, whether it functions without any pressures. Today, whether it is politicised appointments, or it is appointments which lack credibility, or it is a subsequent lack of accountability or biases on account of relatives, religion, caste, or personal relationships, these are all areas where accountability and vigilance norms have to be improved and increased, so that the independence of the institution can seriously be preserved.

Sir, I have always believed that we must seriously consider this larger issue of almost every retiring judge, barring a few honourable exceptions, holding a belief that he is entitled to a job after retirement. Jobs have been provided in certain statutes; they are created by certain judicial orders. Therefore, a search for a job on the eve of retirement begins, as a result of which there is a serious doubt which is raised that retirement-eve judgements at times get influenced by the desire to get a job after retirement. Therefore, I think, when there is a bill pending with regard to increasing the retirement age from 62 to 65 in the case of high court judges, we should correspondingly think of... putting a stop to this practice of everybody being entitled to a job after retirement. The desire of a job after retirement is now becoming a serious threat to judicial independence.

...Separation of powers requires that every institution works in its own spheres. And if every institution works in its own spheres, it has to lay down the lakshman rekha of its own jurisdiction. But why is it necessary to lay down the lakshman rekha of its own jurisdiction? What happens if one steps into the other’s domain? And I must candidly confess that this attempt to encroach upon the lakshman rekha is neither coming from governments of the day in the Centre or the states, nor is it coming from the executive or the legislature. Some serious sidestepping is coming from the judicial institution itself.

Therefore, we require a certain element of judicial statesmanship; we require a certain legislative vision so that we can maintain this separation of powers. Otherwise, what should be the economic philosophy of India? What should be our economic policy? Whether we go to the post-’91 policy of liberalisation, or we go to state controls is a matter entirely for the executive. Courts cannot say that it is neo-liberalism which is creating problems.

Courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law, and what law is made by Parliament.

...How Maoism is to be fought or insurgency in the Northeast is to be fought — we have gone through these debates in this House. That is the domain of the government. The government has to decide the policy. Courts cannot decide that policy. What should be the land acquisition policy? The government is seriously contemplating a new Land Acquisition Act. What should be the quantum of relief and rehabilitation?

Now, these are all examples from the recent past that I am mentioning, where the space or line of separation of powers itself gets obliterated and the encroachment, in most cases, is coming neither from the legislature nor the executive. Therefore, we need serious introspection and I, therefore, said that we need judicial vision, legislative statesmanship and vice versa in this country, so that the correct balance of separation of powers can itself be maintained.

From a speech in the Rajya Sabha on August 17, during impeachment proceedings against Justice Soumitra Sen

The Indian Express, 20 August, 2011, http://www.indianexpress.com/news/some-serious-sidestepping-is-coming-from-the-judicial-institution/834481/


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