Know thy judge

Mains Paper: 2 | Judiciary  
Prelims level: Constitutional Bodies  
Mains level: Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Context 

• We have what we call a “collegium” of the five senior-most judges of the Supreme Court considering names primarily from among chief justices of the high courts and occasionally from the bar for appointment to the Supreme Court.
• The future chief justices of India will be chosen from a pool of judges in the high courts, who have today put in more than 14 years of service.
• Those who have or have had a relative in the judiciary have a better chance of making it compared to others.
• An aspiring law researcher with a little help from Google Analytics will be able to predict who will be the CJI of India in 2039.
• Unlike in the US, where the collegial approach spans the whole nation and virtually the world, our collegial impulses are confined to five learned men.

Why is it so important for you to know your judges before they are appointed?

• Because they decide what you eat, what you can and cannot say, who you can have sex with and whether or not you can visit a temple.
• That is not all. They decide matters of life and death, guilt and innocence, detention and freedom, bail or jail.
• They decide who is a terrorist and who is not.
• There is no aspect of our life which is not governed by the law and  judges are the ultimate interpreters of the law.
• The process of confirmation of a judge in the US Senate is intended to check, publicly, the suitability of a nominee for appointment as a judge.

No such process occurs in India prior to the appointment of a judge.

• If the government of the day were to nominate a judge for confirmation, we do know that they would choose a person who shared their political persuasion.
• The problem in India is we are denied information relating to a proposed appointee and are often left with little more than rumours and suspicion about the antecedents of a judge.

Conclusion 

• Today, we talk of our judges being “liberal” or “conservative”.
• There is now even talk of judges being “urban Naxals”.
• To avoid such post-appointment slander affecting the legitimacy of judges in these “divided times”, we need a new process of appointment of judges and new criteria for evaluation which will capture what we expect from them.
• Pre-appointment background checks must include allegations of sexual harassment against them.
• Such people are normally repeat offenders and a little investigation would show up their lack of character in dealing with women.
• This would be the contribution of the Me Too movement to accountability in the judiciary.

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UPSC Prelims Questions: 

Q.1) The Indian Supreme Court is different from the American Supreme Court in that it has
(a) advisory jurisdiction
(b) power of judicial review
(c) original jurisdiction
(d) None of the above
Answer:  A

UPSC Mains Questions:
Q.1) Why is it so important for you to know your judges before they are appointed?