In the past few years, the central executive and the higher judiciary have repeatedly exchanged barbs over the manner in which senior judges should be appointed. In fact, the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act, 2014, which sought to establish a body with representation from the higher judiciary, the government, and civil society to replace the Collegium system for appointing and transferring judges. The apex court took this action even though the Bill was passed and approved by more than 16 states. Some tension between the judiciary and the executive is inevitable as it keeps both on guard, but each should play fair. That has come into question in the latest instance of the government finding fault with over half the names suggested for judgeships in High Courts.
According to a recent report, of the 126 names recommended for appointment as judges of different high courts in the country, government investigations revealed that over 50 per cent of the candidates were ineligible on various grounds ranging from failure to meet the minimum income requirement to questions of competence and allegations of nepotism. Given the deadlock over the final memorandum of procedure (MoP) for appointments to the higher judiciary, the government asked the Intelligence Bureau to run background checks on all the candidates. The results suggested that many recommendations were less than robust. For instance, at least 30-odd candidates reportedly did not meet the eligibility criteria on income requirements that lawyers must have earned an average annual income of Rs 700,000 in the preceding five years to be considered for high court judgeship. IB checks also revealed serious concerns of nepotism and favouritism in the names that were recommended. For instance, of the 33 lawyers recommended by the Allahabad HC collegium for elevation, six were found to be related to sitting and retired Supreme Court and high court judges.
Moreover, the overall list of recommendations was also skewed in favour of upper castes, with fewer candidates belonging to the scheduled castes, scheduled tribes, other backward classes (OBCs), minorities and women. The data suggests that there are only 27 per cent women judges in the lower courts of India. This ratio gets worse in the high courts (11 per cent) and the Supreme Court (just 9 per cent). The data also reveals that OBCs comprised just 12 per cent of the judges in the lower judiciary while Dalits accounted for 14 per cent and non-Dalit tribals 12 per cent.
On its part, the government has sent its critical observations on the recommendations for the 16 high courts in question to the Supreme Court Collegium with the request that it should “consider these issues while making recommendations”. The onus to make amends now lies with the apex court. The truth is that while the independence of the judiciary is one of the central pillars of any healthy democracy, the judiciary draws its power and influence from the fact that it is seen as an impartial arbiter. If, however, that belief is dented, the judiciary would risk losing its influence and independence, and that cannot be good for any democracy.
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