Indian Express: National: Sunday, January 29, 2017.
Independence
has become an omnibus defence against any criticism of the judiciary. From
appointment of judges to complaints against them, all information is blocked by
it invoking the independence principle. We are expected to trust our judges on
the belief that they have a superior understanding of the reality and human
affairs untainted by human frailties unlike all other public servants.
Political
executives are elected and superior civil servants are appointed through Public
Service Commissions. Both the processes are open. Transparency in public
appointments lends legitimacy to the selected individual. The Right to
Information Act has conferred on the citizens the right to know about such decisions.
The Supreme Court has stayed a CIC decision of 2009-10 for disclosure of the
proceedings of the Collegium for the last six years and the matter has been
referred to a Constitutional Bench. The main defence against disclosure is that
it would adversely affect the independence of judiciary by placing facts about
the candidates under consideration in the public domain.
The RTI Act
ordinarily exempts personal information from disclosure; therefore, there is no
fear that any such information about the candidates would come out and
embarrass anyone. All that would be disclosed is the process followed and why
one was selected over the other.
An argument
has been offered by some votaries of non-disclosure is that if the reason for
the supersession of a High Court Chief Justice for elevation to the Supreme
Court is made public, his continuance in the post would become untenable. This
is a specious argument. The supersession itself is a loud message to the public
about what the apex court thinks about the competence, credibility and,
sometimes, even the integrity of the Chief Justice concerned.
Integrity is
considered the highest value of public servants. For them, elaborate mechanisms
and procedures exist, many by the orders of the judiciary itself, to ensure
high levels of integrity and strong punishment for misconduct and corruption.
But as for
the higher judiciary, there is no information available in the public domain
about the mechanism, procedure or the outcome of any such inquiry. The citizens
must accept that all incumbents are of high integrity and have done no wrong in
discharging their duties even if it strains their credulity.
Finally, we
come to consider if the independence has ensured greater levels of competence
in the incumbents. The competence of the political executives is evaluated by
the citizens through periodic elections and of those in the civil services,
through annual performance appraisal systems and made the basis for career
progression and, sometimes, even for removal from service.
One cannot
say for certain if long pendency of cases, even in superior courts, has
anything to do with the competence of the judges; nor could one say much about
the quality of judgements for it is the legal community which alone can
enlighten us how the judges perform. Since for the judges of the High Courts
and the Supreme Court, the term of appointment is fixed, competence or absence
of it is immaterial.
Thus, none of
the four cardinal values which enrich the institution of judiciary are ensured
by the way the need for independence is being articulated. Prof Upendra Baxi
has claimed in some of his recent essays that the judiciary increasingly
co-governs India along with the executive and the legislature. Governance is a
role which no one had ever thought the judiciary would assume even in
partnership with the remaining two organs of the State.
Power to
govern without any institutionalised accountability is totally incompatible
with the democratic ethos. It is no satisfaction to the citizens that the
judiciary is accountable to the Constitution, because in the final analysis, it
is only a book which is paraphrased and interpreted by the same judiciary. When
judges appoint themselves and enquire into any allegations against themselves
without allowing the citizens to know how they go about it, it gives a very
uncomfortable feeling.