Gopal Subramanian controversy underlines the need for National Judicial Commission

The unsavory controversy about the appointment of the Gopal Subramanian as the judge of the Supreme Court was avoidable. However, this further underscores the need for the National Judicial Commission for the selection of the judges of the High Courts and the Supreme Court. In fact it has become almost imperative in the present circumstances. The way the appointment of the eminent lawyer was turned down by the Executive has compelled the people to consider over this matter with all seriousness that it deserves. India is perhaps the one and the only major democratic country in the world where the judiciary has appropriated the right to appoint judges for the High Courts and the Supreme Court. In all other countries, the appointments are done by the Executive, mostly in consultation with the judges of the top courts. In India the Supreme Court has made it a law by the judicial pronouncement that judges of the High Courts and the Supreme Court can be appointed the collegiums system, which consists of normally a handful of senior most judges of the Supreme Court and the High Courts.

Earlier the Executive was being blamed for not appointing the competent judges to the High Courts and the Supreme Court. The allegations were also made that those pliable and in good books of the government of the day were being appointed the judges of the High Courts and the Supreme Court. It was also being said in jest that there are two types of judges, ‘those who know the law and those who know the law minister’. However, the history bears testimony to the fact that the judges appointed by the Executive have delivered many landmark judgments, which have stood the test of the times and they are still serving as the beacon lights. The Executive appointed judges like V.R.Krishnaiyer, Y.V.Chandrachud, Venkatachaliah, P.N.Bhagwathi, Vivian Bose, H. R. Khanna and Jeevan Reddy are remembered for their contributions to the development of jurisprudence through their judgments.

Therefore, to say that the appointment through the Executive was a wrong method and amounted to interference in the independence of the judiciary is not fully true. We have seen that after 1995, when the method of collegiums was introduced has not been hunky-dory because we have yet to find the judges of high caliber and extraordinary competence who have made marks by delivering the path breaking judgments.
There are many vacancies existing in many High Court and they could not have been filled despite the scarce interference from the Executive. So no else can be blamed for but the collegiums itself. This shows that there has been no improvement in the process of appointment of judges, which is sluggish and tardy as used to be the Second Judges case. The controversy generated with regard to the appointment of Shri Gopal Subramanian may, therefore, prove to be a blessing in disguise.

Mr. Subramanian is a brilliant lawyer and it is always a delight to hear his arguments in courts. He is, without doubt, an asset the bar and his elevation could have been a great tribute to the Supreme Court. His appointment has been stalled for seemingly very frivolous reasons. The present process of appointment, nevertheless, provides that if collegiums had recommended his name again then the government would have been duty bound to appoint him but the Supreme Court had given no inkling whether it wanted to send his name again or not. That is why, Mr. Subramanian has, in his nine page letter to the Chief Justice of India, has said that he felt let down by the highest court of the land. Although, he has tried to give quietus to the controversy but it has opened up more controversy with regard to the efficacy of the collegiums system.

The demand for having the transparent National Judicial Commission to appoint the judges of competence and unbiased mind has certainly gained currency with this controversy. Presently, those who are chosen by the collegiums of the senior judges to be appointed as the judges of the High Courts or even of the Supreme Court have served as the law officers at one point of time or the other. Thus the influence of the government can be seen, may be not directly but indirectly. Since the government is the biggest litigator, therefore, the Law Officers get frequent opportunities to appear before the judges and are noticed by them to be picked up for their appointment as the judges. However, it National Judicial Commission is constituted then even those who are not in government panels but are intelligent lawyers will get the opportunity to prove their mettle. Moreover, they will be doing their job with impartiality and sincerity, which will go a long way in curbing the corruption in the judiciary. For the purposes of accelerating the process of justice delivery, the modern technology must be availed to the maximum possible. Technology is the best leveler and it does not discriminate between the two sets of people. It will definitely work for benefit of common person. It will help in overcoming the problems of nepotism. Therefore, the need of the hour is to immediately introduce the system of National Judicial Commission for the selection of judges of the higher courts and the modern technology for clearing the backlogs.