No appointment with transparency

Posted on October 3, 2012. Filed under: Elections, Politics, Uncategorized |

No appointment with transparency

Jagdeep S. Chhokar

Published in GovernanceNow, September 01-15, 2012, pp.36-38.

The law minister announced
recently that the government
would soon bring in
a constitution amendment
bill to change the system of
appointment of judges to
higher judiciary, the supreme court and
the high courts. But focusing only on
higher judiciary is akin to counting the
trees and missing the forest. Several issues
come up if we look at the forest – of

The first is why and how do our law ministers
get concerned about issues. Nearly
20 months ago, the then incumbent got
concerned about electoral reforms and
announced, with much fanfare, accompanied
by the then chief election commissioner,
about seven regional and one
national consultations. The regional consultations
did happen, in fits and starts,
but then that minister was shifted and the
current incumbent was brought in. The
national consultation never happened, a
couple of draft bills on electoral reforms
were prepared, media reported that the
minister had had meetings on the issue
with the prime minister, the chief election
commissioner of the day demitted office,
but the end result has been naught, at
least so far. Now, there does not even appear
to be talk of electoral reforms.

All of a sudden, the current minister
is so concerned about appointments to
higher judiciary that a constitutional
amendment is being contemplated. True,
the constitution has been amended many
times but most of the amendments happened
in a different political climate in
the country when the polity was not so
fragmented and not so brazenly partisan.

“We are fully committed to changing
the procedure for the appointment of
judges,” said the law minister, an accomplished
lawyer himself. The current
procedure has been in place since 1993,
when the supreme court put it in place.
The detailed rationale is given in the case
Supreme Court Advocates-on-Record Association
and another vs
Union of India, Writ Petition (Civil)
1303 of 1987, the judgment for which
was pronounced on October 6, 1993. It is
debatable if the situation of the judiciary,
one of the three pillars of democracy, has
deteriorated significantly more than the
other two pillars: the legislature and the

Yes, the judiciary has its weaknesses,
some of them glaring, such as huge backlogs
but then who is the biggest litigator
in the country, being the petitioner or
respondent in the maximum number of
cases in the higher courts—one estimate
says it is the government. And whose
counsels seek the maximum number of
adjournments? Another estimate points
to the government again.

The minister is also reported to have
said that the government was only trying
to bring in transparency in every
constitutional body in the larger interest
of democracy and good governance and
that the government was not bothered
about the “problems” it would have to
face as happened in the case of the Right
to Information (RTI) Act.

In this context, looking at the forest,
it might be appropriate to think about
transparency or otherwise of all other
appointments made by the government.
Since the minister referred to the
“problems” with the RTI Act (which was
championed by his own government,
and for which it rightly deserves to be
commended), it might be instructive to
reflect on how the appointment of information
commissioners have been made,
and continue to be made.

It is ironic that appointments under a
law, the raison d’etre of which is transparency,
are completely non-transparent.
An inspection of the file related to these
appointments some time ago, done using
the provisions of the RTI Act itself,
revealed that the concerned bureaucrat,
the secretary of the department of
personnel and training (DoPT), puts up
a note to the committee consisting of
the prime minister, the leader of the opposition
in the Lok Sabha, and a “union
cabinet minister nominated by the prime
minister” who is invariably the minister
in-charge of the DoPT, obviously “duly
constituted” as per the RTI Act, informing
the committee of the number of vacancies
for information commissioners
that exist, and suggesting or proposing
a list of names that should be appointed
for those posts. The committee usually
approves the names and those are
forwarded to the president for formal
appointment. Differences of opinion are
rare, in those cases where the name of
a seemingly controversial person is proposed
and the leader of opposition has
an objection. (The most celebrated case
of such a difference of opinion was that
of PJ Thomas’ appointment as central vigilance
commissioner that finally led the
supreme court to enunciate the doctrine
of institutional integrity.)

The process through which the proposed
list is arrived at is shrouded in
total secrecy. When the file was inspected,
resumes of a large number of people
were found in it, some who had offered
their own candidature and some who
had been recommended by “dignitaries”.
No information was forthcoming
about how some of these “candidates”
were “chosen” to be “recommended” for
appointment. The fact that more than
one secretaries of the DoPT have been
appointed as information commissioner
may contain a story of its own.

It is also somewhat baffling that the
desire to “bring in transparency in every
constitutional body in the larger interest
of democracy and good governance”
does not seem to have touched one of the
oldest constitutional positions, that of
governor of a state. Inspection of the file
concerning appointment of governors,
done again courtesy the RTI Act, revealed
even more startling information. All the
file had was a note initiated by the prime
minister’s office that, referring to a discussion
between the prime minister and
the home minister, said that it had been
decided to appoint the following persons
as governors of the following states. The
home ministry then got into action, obtained
the consent of the chief ministers
of the respective states, prepared the
warrants of appointment, sent it to the
president, and the same were issued. The
whole process took all of 24 hours! Talk
of speed and efficiency of operation, and
of course, of transparency.

When a body with such a track record
wants to bring in transparency in the
appointment of higher judiciary, and is
willing to go to the extent of even trying
to amend the constitution, is it not
legitimate to look for the motivation
behind such an action? Is it, by an outside
chance, a possibility that despite its many
drawbacks, weaknesses, and faults, the
judiciary is the only institution, along
with the election commission, that still retains
significant independence from the
executive, and occasionally pronounces
judgments that the government of the day
and the entire political class do not like?

This is a question to which we can
never have a definitive answer and each
one of us has to make one’s own judgment.
It is also a warning to the judiciary
to act quickly, and decisively, to make
improvements in its own functioning before
the political class makes inroads into
its independence.

Chhokar is a former professor, dean, and
director in-charge of IIM Ahmedabad. Views
expressed are personal.

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