The question of appointment of judges has been somewhat of a thorny issue for some time. It has come to the fore again. One of the principal reasons for this is the suspicion that political pressure is often used to appoint judges, and even to extend their terms. It is this context that has prompted the government to announce its intention to quickly set up a judicial appointments commission. This announcement comes close on the heels of certain ‘revelations’ by a former judge of the Supreme Court, Markandey Katju. If Mr Katju’s allegations are to be believed, then a judge of the Madras High Court was given an extension even though there was an adverse Intelligence Bureau report on his integrity. This extension was given, it is further alleged, at the behest of the office of the then prime minister, Manmohan Singh. Mr Singh was under pressure from a coalition partner, the Dravida Munnetra Kazagham. The priorities of coalition politics, according to this sequence of events, determined the extension of the term of a judge who did not quite deserve it. The judiciary is, of course, not the only sphere on which fell the dark shadow of coalition politics.
The decision to hasten the formation of a judicial appointments commission also has another context. The present government is unable to gloat over its predecessor since it refrained from returning the nomination of Gopal Subramanium to the collegium. It is becoming apparent that the collegium itself is not free from pressure and manipulation. There is a need for greater transparency in the appointment of judges. The judiciary, in its functioning, must stand above and apart from society to arrive at judgments. This does not mean that it can see itself as being free from the norms of transparency that prevail in a democratic society. In fact, the demand for transparency should come from within the judiciary. When this happens, the judiciary will not only be fair but also be seen as fair. On the question of the appointment of judges, another contentious issue is the role that the executive should play. While it is obvious that the executive is the carrier of political pressure, it is difficult to conceive of an appointment procedure that excludes it. Its role should be clearly defined, and perhaps even circumscribed. This government faces the challenge of change, and it needs to introduce change with care and thought.