Delivering blind justice, Indian style

The Supreme Court of the United States of America is housed in an imposing building in Washington. Its iconic architecture carries a symbol that has become the most visible description of justice in the world. It is the figure of a woman whose eyes are blindfolded, who carries an upturned sword in her right hand and weighing scales in her left.

This powerful symbol of the judiciary depicts justice that should be blind to wealth,
power and position; scales that should weigh the merits of a case impartially and a sword that faces downward to show punishment that does not precede proper evidence.
This symbol of “blind justice” that recognises innocence or guilt without seeing anything else that may cloud its judgment, should become the role model for our own judicial system that has come under scrutiny of late and prompted much debate.

It is all about which wing of government should take far reaching decisions in judicial matters – the judiciary itself or the executive. In 1993, a similar debate resulted in the collegium system, when the same apex court ruled that appointments and transfers of judges were the responsibilities of the judiciary.

In one stroke, all executive powers were overruled. But, the ruling did not specify the guidelines for such appointments as a result of which the collegiums functioned in a vacuum. It was only a question of time before cracks began to appear in the new system. If the judiciary – including lawyers – felt that the executive was prone to favour-itism and nepotism in such matters, it soon became apparent that the judiciary itself was not above these ills, nor were its members infallible.

The outcome of this realisation was the National Judicial Appointments Commission (NJAC) established last year by amending the Constitution and passed by parliament. This Commission proposed replacing the collegium in toto by acquiring the power to select, appoint and transfer judges to the higher judiciary in the country.

The legal community was clearly not happy with this transfer of power from the judiciary to the executive, even though this is the accepted practice in leading democracies in the world. Writ petitions followed, questioning the very validity of the Commission.

All this brouhaha has unfortunately resulted in the latest judgment which, even while declaring in a collective Order that the NJAC was “unconstitutional,” struck down the very Act that was meant to end the unholy practice of judges appointing other judges. 16 October, 2015 will go down as a shameful reminder that the highest court in the land is not above self serving motives.

The NJAC may have been dubbed unconstitutional by the Supreme Court. Yet, its salient features promised some element of transparency in judicial matters like appointments and transfers. While it is true that men who occupy positions of power – whether it is a constitutional body or a judicial one – can fall prey to unfair practices, democracy demands that the will of the people be respected in all matters, civil or judicial.

A better alternative
The NJAC was a body created by parliament represented by the people of this country. It may be argued that the integrity of the peoples’ representatives themselves is questionable on these issues. We know that parliament is sacred. We also know its members are not. They are ordinary human beings, with human frailties. But, as long as there are proper checks and balances put in place, one can expect things to be conducted properly. The procedures laid down for the NJAC to function ensured this to a large extent.

For example, the selection of judges to the higher judiciary recommended that the senior-most judge of the Supreme Court shall be the Chief Justice of the country. The other judges of the Supreme Court had to be selected on the basis of their merit and ability alone and not on any other criteria.

Similarly, the chief justices of high courts would be appointed, not by virtue of their seniority alone, but by their past record of merit and ability. These may be broad guidelines, nevertheless, they ensured a modicum of transparency. If it is feared that the executive wing of a democratic country may harbour elements of disrepute,
the same can be said of the judicial wing too.

Judges can be all too human at times, and it would be foolish to imagine that the powers
vested in them will not be misused. High courts – for that matter, even the Supreme Court – have been mixed up in needless controversies which have sadly reflected on their integrity.

The legal ramifications of the Bofors case, and the way in which they were handled, is
just one example.

As a former Chief Justice of India observed: “I cannot claim that there is no corruption in the judiciary, but its prevalence is negligible.”

Political corruption fades into insignificance before judicial corruption. If the Supreme Court has placed the interest of judges before justice in its latest Order striking down the NJAC, it certainly does not auger well for the country.