It is not often that India gets a sense of good governance robustly pursued. The unity of the government and the Opposition in the Rajya Sabha regarding the change in the method of appointment and transfer of judges conveyed, for once, that signal of health in the polity. By speaking with clarity and conviction about the problems of the collegium system of judges’ appointments, the Union law minister, Kapil Sibal, and the leader of the Opposition, Arun Jaitley, exemplified the transparency the executive is asking of the judiciary. The ideal of a fearless and independent judiciary is undermined by the self-perpetuating nature of the institution induced by the collegium system. It makes a group of senior judges the arbiter of appointments in and transfers to courts at all levels. Besides, in cases of misconduct short of anything that calls for impeachment, ‘internal checks and balances’ are set in motion, so that accountability too is confined to the closed chamber of the judiciary. The two bills taken up in the Rajya Sabha, one to create a judicial appointments commission and one for a constitutional amendment aimed at facilitating the former, if turned into law, are expected to make the appointment and transfer of judges more transparent by allowing the executive a role in the process at every step.
Both Mr Sibal and Mr Jaitley emphasized the delicate nature of the separation of powers that holds the democracy in balance. A closed system in any of the crucial institutions, as in the judiciary, can lead, for example, to a judge’s relatives practising in the same court as the judge in question, as Mr Sibal pointed out, or to over-activity — as Mr Jaitley demonstrated in detail. A perfect balance of powers is not easy to attain: India has been swinging from one extreme to the other, especially from the time of Indira Gandhi. An excess of executive powers had been followed by the growing importance of the judiciary as a kind of over-compensation. The higher judiciary’s insistence on the collegium system of appointments and its reportedly special reading of Article 124 (2) of the Constitution in support of its resistance to outside presence are symptoms of this change in balance.
The effort to recover balance is therefore truly welcome. The way is unlikely to be smooth, but the unity of government and Opposition is promising. It is not as if dangers of politicization and bias have not been foreseen. Hence the inclusion of two eminent persons in the selection panel that would also include the law minister with the chief justice of India and two most senior judges of the Supreme Court. But the two eminent persons would be selected from a list made by the CJI, the prime minister and the leader of the Opposition in the Lok Sabha. In theory, powers and preferences seem to have been distributed quite evenly. From theory to practice is another matter.