I do not believe anybody could have any difficulty in accepting the proposition that "independence of the judiciary" is one of the fundamental pillars of our Constitution, and is a value to be cherished and striven for.

At the same time, I do not believe ( or, at least I hope not) that anybody could have any difficulty in accepting the proposition that countries where persons/institutions other than judges appoint judges results in a compromise of the "independence of the judiciary" of that particular country.

Put differently: I do not believe that India's desire to retain "independence of the judiciary" is a unique objective in any way. This being so, then why so much hoo-ha about this value being practically the sole reason for adopting a practice that is unique in the world?

I have no problem with "independence of the judiciary", in terms of whatever this would entail. However, I do have a problem with the "degree" of such independence reaching a point where it results in "tyranny of the judiciary" of monarchial / dictatorial proportions. And that is precisely the problem we have today.

The newspaper quoted the bench as querying the NJAC system's formula of transparency perhaps being "too" transparent, leading to their prediction that many good people may not come forward for offering their candidature for appointment as judges in the fear that they might be turned down, and thereby jeopardise their remaining career. Well, it's a well-settled saying in politics, that if you have anything to hide, don't enter politics. I believe the same would apply to any person desiring to become a judge.

The bottom line is: just like any other process in a democracy, even the system of appointing judges has to show accountability to stakeholders. And the only way this can be done is through transparency.

Now, if someone fears an excess of transparency, and hence, refrains from applying to be a Judge.... Well, it's very simple: Hey, don't apply to be a judge !!! The country surely can do without you !!!

Viva la NJAC !

An extract from a writ petition (its paras 29-31) that the SC's registry deems too "scandalous" to list, the ultimate irony being that the registry did not read its para 31, or read it but shamelessly disregarded it :

THE (UNDOUBTEDLY-UNINTENDED) 'TYRANNY' OF THE JUDICIARY

29. That without meaning to suggest that all Judges are tyrants (as many present Judges are, truly, par excellence), the petitioner respectfully submits that if he were an author writing a book on the present "cordoned-off" state of India's Judiciary, he fervently believes that the atmosphere that has been created by the Judiciary could best be described if the title of this book were something on the lines of "The Tyranny of the Judiciary".

(The word "tyranny" is used to describe what has become the undoubtedly-unintended "collective" result of the individual acts that compose the package of 10 measures taken at different points over time, even if each such measure, taken singly, may perhaps have been reasonable or just if viewed in isolation.)

30. This is because - and all in the name of retaining the 'independence' of the Judiciary (which, admittedly, is important) - the Judiciary has, by its recent pronouncements when taken as a 'whole', created the basis of a veritable tyranny, immune from even any censure, let alone punishment, that not even a monarchy could equal. This "slick" measure has been achieved by a slew of 10 individual sub-measures, as follows :

a) First : it created the "Collegium System", thus, freeing it from any shackles there may have been on appointment of Judges. (This also ensures, in theory, that Judges, say, of the High Court, would bow to the diktat of serving or retired Judges in the Supreme Court, if they wished not to jeopardise their own chances of elevation to the Supreme Court ; the diktat could be also for the High Court Collegiums to sponsor the name of so-and-so candidate as a High Court Judge, or for any other reason.)

b) Second : it ensured that no "Rules for Procedure" were approved by any legislative / statutory mechanism. Instead, all that was devised was a loosely-worded document called "Memorandum of Procedure", that gave vast discretion to the Members of the Collegiums.

c) Third : it passed a ruling, holding that the process of appointment of Judges would be kept "secret", and not open to any scrutiny, not even under the RTI Act, not even after the appointment had been effectuated. (Justice Ruma Pal, in her Tarkunde Memorial Lecture delivered on 10-11-2011, referred to this as one of the judiciary's 'Seven Deadly Sins'.)

d) Fourth : it passed a judgement that despite the secrecy in appointments, if at all any news relating to a particular appointment leaked out, and if at all the selection of a particular Judge was subjected to challenge by way of judicial review, the review would be confined only to a challenge to the "eligibility" of the candidate, and not to the "suitability" of the candidate. This put the selection process beyond the pale, because so long as the candidate chosen was "eligible" (which it is not difficult to be), his "suitability" for the post would be the sole and unfettered discretionary prerogative of the selecting Judges, who could, therefore, literally bulldoze any candidate into office (as witnessed recently, inter alia, in the sordid Dinakaran episode, as well as the Kabir Shukla episode, both having brought huge shame and ignominy to India in the eyes of the international community, given that they were related to acts of sitting Chief Justices of India).

e) Fifth : it passed a judgement that if any complaint is to be made against a Judge, it will be dealt with only by the Judiciary, in terms of what it called an "In House Procedure" that, again, has no legislative sanctity.

f) Sixth : It ensured that the results of the "In-House Procedure", if at all ever started in the case of any particular Judge, are never made public, not even to the complainant. This gave licence to the Judges chairing the "In-House Procedure" proceedings to exercise vast discretion in helping bury their colleague's indiscretion(s), sanguine in the belief that such discretion would never be questioned. This is a saddening thought, because to "shield and protect" a person from the punishment lawfully due to him is a crime in India, which is a country where no Judge is immune from criminal prosecution. Therefore, in certain cases, the "In-House Procedure" has given licence to the same Members to commit a crime themselves.

g) Seventh : it ensured that this "In House Procedure", if at all put into motion, would be triggered only in cases of the gross possible of abuse (in other words, "small" to "medium" - or even "large" - abuse was ignorable), or if the allegations raised such a public clamour that it would put the Judiciary into "highly-questionable" shame if it was seen not to be taking commensurate action (in other words, merely "questionable shame" was acceptable e.g. the initial public clamour against the elevation of P. D. Dinakaran was totally ignored, with the Chief Justice of India actually trying still to push his appointment through even though roars of protect had already begun to be voiced, till the public clamour reached a veritable crescendo).

h) Eighth : circumstances were created whereby the Executive was encouraged to obtain passing of the Judges Protection Act (1985) by the Legislature, whereby any criminal or civil proceeding against a Judge would lie only if the plaintiff / complainant was the Supreme Court, the High Court, the Central Government of the State Government, thus, rendering them immune from any attack by the common man. (As a result, there has been only one prosecution of a Judge in India till date in 31 years i.e. that of Nirmal Yadav, J. of the Punjab and Haryana High Court, whose merit-less appointment was yet another product of the "Collegium System", and whose prosecution was permitted to start only after she retired, perhaps so that the ridiculous image of a sitting Judge also attending criminal court as an accused as part of the same working day may not be laughed at by the citizenry ; in addition, sanction for the prosecution of a sitting Judge of the Delhi High Court has reportedly been granted under Section 197 of the CrPC, though not yet actioned upon).

i) Ninth : In 2015, it passed a judgement (in the case of Supreme Court Judge Mr. C. K. Prasad, J., now retired) that no FIR could be registered even against a retired Judge, as that would affect the "independence" of the Judiciary. (What makes this judgement startling is that the dismissal was not on merits of the matter, but on a knee-jerk, blanket basis.)

j) Tenth: The Judiciary, with this package of 9 measures in place as enumerated above, now is perceived to be totally fearless as far as the Executive, the Legislature, or even the "piffling" 'common man' acting on his own is concerned. The only thing some of the Members of the Judiciary may perhaps fear is "public awareness" ; in other words, not even possible awareness by their own colleagues / Brother and Sister Judges of their intended aberrant conduct is grounds for self-restraint . And to stifle that "public awareness", the Judiciary has routinely hauled up Members of the Fourth Estate (the Press) for criminal contempt for reporting anything about a Judge. One horrifying incident in recent times that crosses all extremes is that of Kailash Gambhir, J. (of the Delhi High Court) who - on publication of a well-researched media article on his - and / or his son's - alleged ownership of a significant stake in a 5-star hotel at Dwarka (New Delhi) managed by the ITC Group of Hotels and the consequential (or connected) non-interference by the Delhi Police into its keeping its liquor bar open much after scheduled hours - hauled up the publication, and himself issued a blanket injunction against that media house or any other (in other words, a blanket ban) against any further publication on him or his son, and if this were not enough (to attract, inter alia, a horrific breach of nemo judex in causa sua), passed this order while chairing proceedings for criminal contempt proceedings against that media house before his own Bench while acting singly, when criminal contempt proceedings can only be heard by a Division Bench, and therefore, he ought to have referred the matter immediately to the Roster Bench (a Division Bench).

What is shocking is not just that he issued that order ; what is perhaps equally, if not more, shocking is that the Roster Division Bench tasked with criminal contempt petitions [then chaired by Hon’ble Ms. G. Rohini (Chief Justice)] kept a studious silence at the wholly-illegal usurpation of its own Roster.

Perhaps he did not refer the matter to a Division Bench for appropriate action as he feared that his colleagues may not take the initiative of issuing an injunction to protect him, or worse, may not view it to be an act of criminal contempt by the magazine at all.

As the matter was reported widely in the media, it is not the conduct of the High Court alone that is shocking. Even the Supreme Court is to blame, as no Court or Judge, acting suo motu, took up cudgels against such blatant misuse of judicial power.

31. There is yet a eleventh measure in place, which is that if one makes allegations against a Judge by way of a judicial proceeding moved for that very purpose (such as, say, in a writ petition, such as the present one), very often, the petition is refused by the concerned Registry officials to be listed. The grounds advanced are that the petition contains "scandalous matter".