The accidental discovery on march 14 of a huge cash stash variously estimated as Rs.5-50 crore in the outhouse of a government-allotted bungalow of Justice Yashwant Varma, an incumbent judge of the Delhi high court, has resurrected the question of judicial accountability. Also the hastily-buried issue of how judges of the Supreme and high courts obliged to interpret the Constitution and safeguard the rule of law, are appointed.
Prima facie, unearthing a large stash of cash within the residential premises of a judge indicates bribery and judicial corruption. But one can’t rule out that the cash hoard was planted by enemies of the judge to frame him. That’s why a thorough enquiry with the involvement of the Supreme Court and best sleuths of the Central Bureau of Investigation is necessary.
Meanwhile with senior lawyers making alarming charges of pervasive corruption within the upper judiciary in television chat shows, the process of selection and appointment of Supreme and high courts judges needs to be urgently reviewed. In 2014 the newly-elected BJP/NDA government at the Centre introduced the 99th Constitutional Amendment Act, 2014 to constitute a National Judicial Appointments Committee (NJAC) to appoint judges of the upper judiciary.
Under the NJAC Act, judges were to be appointed by a six-member committee chaired by the Chief Justice of India (CJI), two senior-most judges of the apex court, the Union law minister and two ‘eminent persons’ nominated by a committee (comprising the Prime Minister, CJI, and Leader of Opposition in the Lok Sabha). However this well-balanced proposal was rejected by the Supreme Court on grounds that it compromised independence of the judiciary and was violative of the basic structure of the Constitution. The status quo ante under which a collegium chaired by the CJI comprising senior judges of the apex court appoints upper judiciary judges, was reinstated.
In light of the national outrage provoked by Justice Varma’s cash mountain and an absurd Allahabad high court judgement in the case of attempted rape of a minor, it is clear that the Collegium system is flawed. It is esoteric and opaque with the public and its representatives in Parliament unaware of antecedents and track records of legal luminaries inducted into the highest judiciary. In retrospect and with the benefit of hindsight, the proposed NJAC offered the advantage of being a broad-based selection and appointment consortium, as against a cosy club of Supreme Court justices.
In this connection please note that judges of the US Supreme and federal courts are appointed by a popularly-elected President, after which they are subject to open cross-examination by a Senate Judiciary Committee and final approval by a majority of the popularly elected Senate. Perhaps this process is not suitable for India with our large number of uneducated and under-educated citizens. But citizens representatives must have some voice in the selection of judges who dispense justice and interpret the freedom and rights charter of citizens.