THE FINE BALANCE
It only needed an issue like the impeachment of a judge to bring discontents out into the open. But the context should not detract from the arguments of Arun Jaitley of the Bharatiya Janata Party and Sitaram Yechury of the Communist Party of India (Marxist), both of whom were vocal in their criticism of the way judges are appointed. They were ultimately speaking up for balance, since their main demand was that the executive play a greater role in judges’ appointments. The dominance of the higher judiciary in the appointment of judges has long been the cause of simmering discomfort between the executive and the judiciary. The promise to form a national judicial commission has been equally long-standing, coming from different leaders at different times, generating debate, discussion and high-minded piety, without it ever coming to pass. The commission is envisaged as a broad-based panel comprising members of the higher judiciary and of the executive, and eminent citizens, that would include, among its other duties, that of appointing judges. The proposal has repeatedly tripped on the inescapable, if unspoken, issue of power. Whose word would be final, the executive members’ or the judiciary’s? Or even, who can veto whom?
In this less than dignified see-saw of points of view, the judiciary holds up the bogey of the politicization of judges’ appointments as its defence against sharing the power to appoint judges with the executive and other non-judicial individuals. As is being repeatedly demonstrated, however, internal checks and balances that the judiciary claims are good enough are not adequate for balance and fail in providing transparency. That is the point of view presented by Messrs Jaitley and Yechury. It is a pity that this should be perceived as a disagreement at all. The judiciary in its wisdom may also see that transparent systems, whether of appointment or of promotion and transfer, would increase its stature and defeat its critics. This is particularly important at a time when the courts have been seen as activist, tending to overstep the bounds set by the overall threefold structure of the democracy, consisting of the executive, the legislature and the judiciary.
Judges may come to their seats through various routes. In the United States of America, for example, federal judges are appointed in accordance with Article III of the constitution. That is, the US president appoints them and this is endorsed by the Senate. This is what would be perceived in India as a purely political appointment. In Britain, the system of appointment by the queen on the advice of the prime minister and the chancellor has recently been changed to one of open competition through the judicial appointments commission. This reform has clearly been made in the search for a middle way, for the sake of transparency and fairness. India, too, must find its own way to the same principles, even if the form of the national judicial commission is not considered ideal. There could be no better way to end charges of vested interests and opaqueness than a transparent system of appointment
MPs are pointing fingers at the judiciary but failing to note their own failings.
The judiciary has performed much much better than parliament.
Why don't the MPs first set their own house better instead of finding faults in the judiciary.
Why don't they see that the MPs who get selected for parliament are scrupulously honest. At present 60 % of MPs and MLA have corruption charges against them.
There are extortionists, dacoits, smugglers, rapist, murderers amongst them and yet they have the audacity to point fingers at the judiciary.
Just as the MPs are demanding to have a say in the selection of judges, would they allow scrutiny by the judiciary of all the persons who stand for elections? Then how do criminals become MPs. And do they allow scrutiny of all the persons who become ministers. This is a serious topic and should be further looked into so that criminals do not become our legislators.
There are five wings of the government.
Although the Executive should be on top, this list has been made in increasing order of corruption hence since it is the most corrupt, it is at the bottom.
1.The CAG
2.The Election commission
3.The judiciary
4.The Army
5.The executive
The CAG has been consistently performing very well since independence and actually points to the corruption existing in the executive's processes.
The Election Commission was once a dormant force which did not know its power. It was only T N Seshan who made them realize what power they had and ever since then they have been gaining strength and performing better with each successive election. This time the way they carried out the Tamil nadu, West Bebgal and Bihar elections was really creditable.
The Judiciary has many faults. It starts with the lowest courts of the land where when the file goes before the magistrate, the petitioner has to grease the palm of the court clerk also called the Peshkar.Don't the Peshkar get a salary from the government? Why do the petitioner have to pay him. This money, collected by the Peshkar is them distributed and I can safely assume that the magistrate or lower court judge gets a share. As we go higher, the amounts increase. So the judges cannot claim immunity.
The function of the army was never scrutinized. We respected it for they sacrificed their lives to protect us. However, we have not had a war for many years and when we tried to reward the heroes of the last Kargil war we see a full-scale scam developed with the connivance of politicians and bureaucrats, The Adarsh Scam. One scam after another has come to light, The canteen supply scam, the Sukna Land Scam are a few names. When the executives have looted, how could the army be free?
The Executive.
This is the government both at the centre and at the sate levels. I don't think I need to elaborate on this. It is for everyone to see and which is the foundation of Anna's agitation.
You will see that only #1 and # 2 are comparatively free of corruption. We are obliged to the CAG for exposing all the corrupt actions of the government.
# 3,4 and 5 are in the increasing order of corruption.
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