The public spat over the appointment of Mr Gopal Subramanium as a Supreme Court judge is uncalled for. No one need be a judge in his own cause. There are enough people who believe that Subramanium is the most eminently suited candidate to be an SC judge.
There is widespread support for him across the spectrum. So, where is the need for him to flutter his wings and splash water all around? There is bound to be collateral damage, not only to the institution of justice but also himself.
This incident to a great extent exposes the inadequacy of the system of appointment of judges.
Many years ago, Justice Krishna Iyer had said: "There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made and a sort of anarchy prevails."
Dr B.R. Ambedkar had warned against judges selecting judges.
He said: "To allow the Chief Justice practically a veto upon appointment of judges is really to transfer the authority..., which we are not prepared to vest. The authority for appointment of judges must vest with the President or the government of that day."
I urge the government to fast-track the Judicial Appointments Commission Bill, which was introduced in the Rajya Sabha on August 24 last year, as well as the Constitution (120th Amendment) Bill to insert Article 124A in the Constitution for the setting up of a Judicial Appointments Commission.
The proposed commission will definitely be an improvement over the existing process, without hurting in any manner the independence of the judiciary.
(Former Supreme Court judge) Justice Katju, while hearing a case against an Allahabad HC judge who passed "extraneous orders" to favour kith and kin practicing in the same court, noted that the practice had shaken the faith of the common man.
A weekly magazine reported in 2010 that the kin of several Allahabad HC judges were practising in the same Court.
According to the report, 35 out of the court's 70 judges found nothing wrong with the practice. The Punjab and Haryana High Court Bar Association too noted that relatives of judges had been appointed as law officers. The bar association, in a resolution, called upon such relatives to resign.
I have not heard of any follow-up with regard to that resolution. In 2013, a newspaper reported that over 1,000 Punjab and Haryana HC lawyers had protested against the recommendation of seven names for appointment as judges. The Bar had decried the tendency to recommend sons, daughters and other relatives of former judges for selection to the post.
As compared to India, where utmost secrecy shrouds the appointment process and there is virtually zero consultation with either the Bar or the government, the British practice is far more fair.
The British Judicial Appointments Commission has 15 members, 12 of whom are selected through competition and three are eminent citizens.
The request for filling up the vacancies is advertised, candidates shortlisted and a list submitted to the Lord Chancellor.
In the US, presidential nominees require clearance from the Senate Judicial Committee. The committee holds public hearings where the objectors express their reservations in writing and tender evidence by presenting witnesses and documents.
The nominee is allowed to cross-examine the witnesses. Thereafter, the nominee produces evidence and the objectors can cross-examine the witnesses.
Before sending the nominations to the Senate Committee, the American Bar Association is formally consulted. In over 200 years, no appointment has been made against the bar association's opinion.
We have a long way to go as a democracy to adopt such transparency in our appointments. The appointments commission is the first step.
We are proud of our judiciary, which has immensely strengthened the foundations of democracy and established the majesty of law.
But we need to be on our guard and constantly evolve better systems to further enhance the capabilities and capacity of the judiciary to dispense speedy justice and cut down delays which are the biggest blot of our judicial system.