Time for judicial reforms

Edit, Governance Now, April 16-30, 2010

Dinakaran episode exposes fundamental flaws in the self-appointing mechanism in the judiciary


The Supreme Court collegium has been under sharp focus for quite some time now, and for all the wrong reasons. The Dinakaran saga is the latest one. A couple of months ago, a retiring chief justice raised serious questions about its functioning, pointing out that there were basic flaws in the procedure and parameters it followed in appointing the higher judiciary. Its transfer policy has been questioned in the court through a PIL. A couple of months ago the central government sent back its recommendation to elevate three judges to the Supreme Court, again raising doubts about its selection process.

In the case of Justice P D Dinakaran, it was alleged that his antecedents were not checked before recommending his elevation to the supreme court. When newspapers went to town about how he had accumulated land disproportionate to his known income and, worse (he had allegedly grabbed public land in Thiruvallur district of Tamil Nadu which was found to be true in subsequent inquiries by the collector), the collegium refused to take back his name. Instead, it asked the central government to take a call. And months after an impeachment motion was admitted against him in the Rajya Sabha, the collegium asked him to go on leave. Dinakaran refused to do that, following which it has reportedly recommended that he be shifted as chief justice of the Sikkim high court, sparking protests there.

All these have led to questioning the very mechanism the apex court has adopted in matters of selection and transfer in higher judiciary. For one, the collegium system has no constitutional mandate. It was through three judgments, known as the Judges cases I, II and III, that this judicial self-selection process began. By defying its direction to go on leave and getting away with it, Dinakaran has revealed serious flaws in the way the system worked. If it can’t discipline a judge, what authority, moral or otherwise, does it wield in the fraternity?

Secondly, there is no transparency in its functioning. Why a judge is selected for elevation or rejected is never known. It has landed the collegium in so many controversies that the Law Commission took suo motu cognizance in 2008 and sent a report to the government asking it to seek a review of the judgements that led to the collegium system or passing a law to restore “primacy” of the chief justice of India and the executive power to appoint higher judiciary. The episode also reflects a lack of mechanism to punish judicial misconduct, the impeachment process having failed to do so in all these years. A piece of legislation to bring in judicial accountability is pending for some time. But more than that, the present state of affairs calls for a comprehensive judicial reform.