“The Obvious solution to the ‘Judges Controversy'”: Justice J.S.Verma

Posted in legal profession, public policy by Gautam on December 3, 2009

I cannot find words to describe my anguish at the thought of a known delinquent being elevated to one of the highest offices in the land. At the same time, I do not claim to be completely aware of the veracity of media reports on the controversy surrounding J.Dinakaran and therefore this post is put forth as an opinion independant of the current crises surrounding the Judiciary.

In 1993, the Hon’ble CJI J.S.Verma wrote an opinion in the 2nd Judges Case, Supreme Court Advocates on Record v. Union of India, whereby he expressly stated that,

“The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry. It is, therefore, time that all the constitutional functionaries… should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment is made even if some time a good appointment does not go through. This is not difficult to achieve.”

Hence contrary to general perception that The Supreme Court Collegium is the finality on elevation of Judges, the other two organs have a very clear prerogative, nay, even a Constitutional duty to make sure that where it happens that the Executive/Legislature is in a better position to know of the doubtful integrity of a candidate, They can recommend barring him from holding this most distinguished of offices. Justice Verma goes on to emphatically opine that while it would be a pity if an eligible candidate is not elevated to the Supreme Court based on uncontroverted reports, there would be substantially far more intense and permanent damage done to the integrity of the institution if a wrong appointment is made to this office. The slightest of doubt as to the integrity of a Judge, according to him, is sufficient to bar his name from being considered towards elevation to the Supreme Court. Towards this, the Collegium may not necessarily have the ultimate say and will be obliged to take the aid of the other two organs. Logically, this is what the Hon’ble Judge means when he says that the the process of appointment of judges of the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.

All Constitutional functionaries have a very delicate role to play and the slightest mistake could be fatal. The rare case of non-appointment being a mistake would occur; but that mistake in the ultimate public interest would be far less harmful than a wrongful appointment. Where the Executive is better equipped to ensure this- as in the present situation- it most certainly does have a say that must be given sufficient weightage by the Collegium. This reminds me of an opinion by an eminent Fali Nariman that prescribed institutionalising the Collegium and ensure that its alsmot a body independant of the Supreme Court; ‘almost independant’ because while Judges of the Court will continue to form the Collegium, the process of investigation, selection and appointment will be far more elaborate and meticulous. Most of it makes sense- only that it still fails to grant a significant say in the process to the other two organs of the State. Cross institutional Concurrence is a fundamental element of the theory of separation of powers. ‘Self appointment’ by any wing, is in direct contradiction of this theory. Why should the Judiciary be an exception to the rule.

In my first visit to the Supreme Court yesterday, I was in phenomenal awe of this office and I cannot fathom a more pleasurable feeling than being part of this institution in the business of dispensing justice.

I suppose it is difficult to see how mush damage is being done to the Judiciary through this controversy but I just heard that the Supreme Court Bar Association intends to now boycott the benches of the 5 seniormost judges of The Court. If there must be anything to indicate the crises that the integrity of the Judiciary is in, it is this.


2 Responses

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  1. Mika said, on December 4, 2009 at 6:34 pm

    “…of this institution in the *business* of dispensing justice.”

    the irony.

  2. Ritika said, on December 25, 2009 at 5:21 am

    nice post swarup.

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