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Indian judges need to be judged

New Delhi: Former Gujarat High Court judge B J Shethna on Wednesday lashed out at the Supreme Court, protesting his punishment transfer to the Sikkim High Court.

Choking on his tears after a final outburst against the top brass of the judiciary Shethna remained vehemently defiant and refused to accept his punishment posting. Shethna's departure has underlined the inadequacy of laws to discipline erring judges.

Shethna’s is not an isolated case. Several controversies regarding justices have come to light recently. The most prominent being Justice Jagdish Bhalla's elevation as Chief Justice was mired in controversy surrounding a land deal. His elevation as Chief Justice of Chhattisgarh High Court was recently cleared by the SC collegium.

President Kalam had returned the file for elevation of Justice Vijender Jain of the Delhi High Court as the Chief Justice of the Punjab & Haryana High Court. Kalam objected to Jain's elevation after a litigant had leveled some charges of impropriety against Justice Jain.

President Kalam had returned the file relating to confirmation of Justice S L Bhayana as a judge of the Delhi High Court. The current Collegium headed by Justice Balakrishnan recommended for the second time Justice Bhayana's name for confirmation last month.

On Face The Nation to discuss the issue of judicial vigilance was senior lawyer of the Supreme Court Prashant Bhushan.

The fact that an increasing number of judges were seen involved in controversies raises the question-Is the appointment of judges is where the rot is happening?

“There is a problem with the appointment of judges-where there is no transparency, there is no system. Since the whole power of appointment has been appropriated by the judges themselves, there is a problem of accountability,” Bhushan said.

For instance, if one gets a bad egg, all one can do is transfer him. “That’s all can be done under the present system. The other way is to impeach him,” he pointed out.

But then, why should another court get a bad judge? “Absolutely, so there has to be a system for being able to deal with errant judges, for being able to remove them, other than impeachment,” Bhushan said.

Under Article 124 and 214 of the Constitution, a judge of the Supreme Court and the High Court respectively has to be appointed by the President of India after consultations with the Chief Justice of India. However, a nine-judge constitutional bench, in 1999, ruled that the Consultation must be effective and the CJI must have the primacy in deciding.

“Now, it’s not just the Chief Justice alone but a collegium of three or five judges, who will take the decision. So, the judiciary will not allow any encroachment into the powers of appointment,” Bhushan said.

While emphasising that the law was shielding the judges, Bhushan pointed out, ”Nobody can even register an FIR against a judge even if he has committed heinous criminal offence without prior permission of the CJI. There is no accountability of the higher judiciary in this country today. That coupled with the fact that there is no system and no transparency in the matter of appointments only worsens the situation.”

But then, isn’t it important that the judiciary be safeguarded from all forms of political influence and pressure? Which will be this neutral body that will supervise the judiciary? Is the judiciary itself not its own best judge?

Bhushan said that the principal of independence of the judiciary has been elevated to the level of non-accountability. "We have suggested that you can have a five-member national judicial commission and without it, the higher judiciary will remain completely unaccountable and there will be no checks and balances and controversies will keep arising."

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