By Karan Thapar

Last week the Times of India broke the story about large sums of unaccounted cash found in Justice Yashwant Varma’s residence. Earlier, there was the case of Justice Shekhar Yadav who blatantly breached judicial propriety and conduct with his statements. In one case effective action hasn’t been taken. In the second it happened belatedly and only after protests. That raises the question has the judiciary acted meaningfully and responsibly? If the answer is no what does that suggest about the judiciary’s in-house mechanism for accountability? And does it also raise questions about the way judges are chosen, particularly at the High Court level?

Justice Ajit Prakash Shah’s Rosalind Wilson Memorial lecture presents a withering critique of the in-house mechanism for accountability. Though delivered in 2019 it’s particularly pertinent today.

His first attack is on the character of the in-house system. It’s ad hoc and informal whereas it should be statutory and formal. “There is no statutory basis for the procedure” and it has “limited sanctity within the judiciary itself”. For instance, “no judge has agreed to resign because there was an adverse report by the committee” against him or her.

More importantly, Justice Shah points out that the in-house mechanism treats the judiciary as if it’s “a law and world unto itself”. They appoint themselves and then they internally lay down procedures governing their behaviour. He calls this “some form of self-governance” adding “this is the opposite of what is desirable”.

There are also telling criticisms of the way the in-house mechanism actually functions. There are many instances where the misconduct of judges is discussed in pubic but in-house proceedings against them have never been initiated. Equally, there are cases where allegations against a judge have been made but the in-house mechanism has not been activated.

Justice Shah forcefully explains why we need an objective formal statutory mechanism of accountability. He says: “Judges do not have any pre-set moral codes embedded in their brains that dictate their behaviour the moment they sit on the bench. Indeed, they are as human as the lawyers, plaintiffs, defendants, criminals, witnesses and police before them. To attribute a greater morality to them merely because of the nature of their office is false and dangerous.” It, therefore, follows that when they err they must be held to account and not allowed to get away with it or treated lightly.

Now, when you’re talking about the conduct and behaviour of judges you can’t avoid the question how are they chosen? Clearly the Collegium System is not working perfectly. We need something else. But first let’s understand where the Collegium System is failing.

In my conversations with Justice Shah, he’s identified several issues. First, there’s no known or agreed criteria for choosing judges. It seems to be ad hoc, even word of mouth and often favourites are elevated.

More importantly, on worrying occasions the best have been ignored. In Justice Shah’s eyes two glaring examples are Justice Akil Kureshi and Justice Muralidhar. He believes they deserved to be elevated to the Supreme Court.

Now the Collegium System was devised to circumvent the government. Yet when you have a strong executive with a powerful majority in parliament, as we do today, the government can – as it does – simply sit on Collegium recommendations, sometimes for years, thus giving the government an effective veto. Yet that’s the precise outcome the Collegium was created to avoid.

However, Justice Shah says it’s at the level of appointment of High Court judges that the Collegium System is deemed to be weakest and most infirm. This matters because perhaps 95% of Supreme Court judges are chosen from the High Court judiciary. So if High Court judges are poorly selected that will inevitably afflict the top Court as well.

Finally, both the problems we’ve discussed cannot be wished away. They’re adversely affecting the health of our judiciary and our democracy. In fact, they probably need to be tackled together. That would require the executive and the judiciary cooperating. Are they willing?