Mathews J Nedumpara
Three-fourths of the judges of the SC are the sons, son in laws, nephews, brother, brother in law of former Chief Justices and judges of the Supreme Court and High Courts, senior Advocates, former governors and juniors of former judges, Lok Sabha speaker and Advocate Generals. (SUPREME COURT JUDGES progeny syndrome chart as modified).
The constitution vests the power of appointment of judges in the executive. However, the SC in 1993 by rewriting the constitution wrestled the power of appointment to itself, on the specious premise that to do so is necessary to ward off political influence in the appointment of judges. It is said ‘power corrupts and absolute power corrupts absolutely’. Far from protecting judicial appointments from extraneous and corrupt considerations, the opaque Collegium system of selection and appointment has resulted in the higher judiciary being reduced to an inherited office, a dynasty of a few families of judges, lawyers and powerful politicians. Whatever resemblance there was of inclusiveness in judicial appointments, came to be completely lost. Sons, sons-in-law, nephews of judges chief Ministers, governors and big lawyers came to completely monopolize the higher judiciary. There is no easy escape from this extremely disastrous situation. Because the first generation lawyers are completely marginalized, if not driven out. Every High court has atleast a dozen young lawyers who are the sons/sons-in-law, etc. of the sitting and retired judges, and Senior Advocates et al. They are designated as Senior Advocates at a young age. They are known as ‘baby seniors’. The entire creamy work is in their hands.Big Corporations engage them because they feel assured of the best results. These kith and kin operate as a caucus to the detriment of first generation lawyers who are no less competent than them. Out of considerations of reticence I refrain from commenting on the menace, nay, the corruption and mal practices the ‘uncle judges syndrome’ poses to the our justice delivery system.
The Collegium has destroyed the institution of judiciary beyond words. They talented among the first generation lawyers, disappointed and disgusted with the unfair deal they have had to face have left the profession to take up jobs. Four-fifths of the Chief Justices of the HCs are the kith and kin of judges, senior lawyers and politicians. So too the Senior Judges (among the puisne judges) who are part of the collegium of the High Courts tasked with job of selection of judges.
Who is at fault for the sorry state of affairs? We are at dire straits. The Parliament amended the constitution to abolish the Collegium and to bring in its place a transparent and open system of selection of judges. However, it was sabotaged. By whom and Why? The Collegium system subserves the vested interests of a few and, in particular, the powerful lawyers of the SC. Because under the Collegium system they are the defacto king makers. They used SCOARA -an association of Advocates on Record – as a pawn to get the Constitution Amendment which had received the unanimous approval of both the houses of the Parliament and the 21 state assemblies, quashed. Alas,the will of the people was substituted by the opinion of 4 judges, that too in a matter of exclusive legislative policy which was not even justiciable, at all! Because the AG refused to question at all very the maintainability of the so-called PIL in challenge of NJAC.
Now, what is the way out? Nowhere in the world can courts interfere in matters of legislative and executive policy. No where else, are the courts allowed to assume the role of the executive. Today, the judges initiate ‘suo motu’ PIL and assume to themselves the role of the suitor and judge, both at once. The judges could do so because of the servile bar and the muted press which is too fearful of the law of contempt, to speak out in public interest.
It is unrealistic to expect the bar to become fearless all of a sudden and ask for the dismantlement of the collegium and instead open selection by invitation of applications as in the United Kingdom and many other countries. Because our courts enjoy unlimited discretionary powers. No lawyer can afford to be in the bad books of judges. His/her success entirely depends on his/her ability to secure interim orders of stay, bail, etc. The political executive miserably lacks the courage to speak of their rights. Then, who will bell the cat? The answer is, only, the common man who is fearless and expects no favors, but a just and fair system.Nobody else. And he will, provided he is informed, nay, educated.
This piece is authored, and the chart prepared, in the hope that I could thereby contribute my mite in ushering reforms.
(The author is the President of the National Lawyers Campaign For Judicial Transparency And Reforms)