Report No. 162

4.7. Measures to check deterioration in moral values-Corruption and nepotism are on the increase in the selection process.-

There has been a decline in moral values, and a prevalence of corruption and nepotism in the past. In the case of Ajay Hasia v. Khalid Mujib Sehravardi, 1981 (1) SCC 722 (745), (Constitution Bench) observed as follows:

"Now, there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the court as free from the vice of arbitrariness."

With the intensity of corrosion of moral values, corruption has increased gigantically in our country even after two decades of these observations of the Supreme Court. It can be evidenced through a spurt of various scams in the country. In Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444, the prevalence of scams in the country has been judicially recognised.

It speaks of the prevalent corruption in the country being at it peak, corroding the democratic structure of the country. The experience of selection of judicial personnel through some State Public Service Commissions has been very discouraging inasmuch as these Commissions have lost their credibility (please refer to the observations of the Law Commission of India in. its 116th report quoted in this Chapter).

Even if the said Commissions are excluded from the jurisdiction of the selection of personnel manning these tribunals (which are relegated to the status of District Judges/Additional District Judges), yet the manner of selection of these persons through personal interview only is not impervious to political interference, corruption, nepotism especially when no evidence of tape-recording of interview is maintained, and public does not have access to such confidential matters to enable them to impugn the selection process. Candidates coming from far off places do not have contacts or the time to spare to delve out the illegalities in the selection process and thus the illegalities remain hidden in the files of the selection process.

It cannot be denied that those candidates who could manage to secure appointments through corrupt means, cannot keep the adjudicating atmosphere free from corrosion as they seek the return of expenditure incurred by them in finding their way into the tribunal. This forms a cycle of corruption and lowering of the judicial values. This cyclic process becomes unending because greed is never curtailed.

As observed in L. Chandra Kumar's case, para. 89 (supra), certain drastic measures have to be resorted to in order to elevate the standards of tribunals to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them.

The Supreme Court has also recommended under paragraphs 96 and 97 of the judgment that until a wholly independent agency for the administration of all tribunals can be set up, it is desirable that all such tribunals should be as far as possible under a single nodal ministry which will, inter alia, lay down the procedure for the selection of the members of the Tribunals.

That body will also have to take into consideration the comments of expert bodies like the Law Commission of India and the Malimath Committee in this regard. In the backdrop of these developments, it is evident that the said nodal agency will have before it the data of manpower of the tribunal members, and details of their retirement, and vacancy position etc.

Under the French Administrative Courts System, appointments are made through a national competitive examination [see Article by V.S. Chauhan on Justice by Administrative Tribunals, AIR 1986 Journal 56 (58)]. In search of a solution to the problem under consideration, the Law Commission is of the considered view that judicial members (other than the Chairman and Vice chairman) to man the tribunal ought to be selected through the process of a high-standard written examination followed by personal interview.

It is only if he qualifies in the written examination that he should be considered for personal interview. The percentage of marks allocated for written examination and personal interview can be 85% and 15% respectively. Furthermore, the evidentiary record of personal interview and written test should be maintained at least for a period of two years.

According to section 6(3)(b) of the Act, a Judicial Member has to be selected from two categories viz. (a) a person who has been or qualified to be a judge of the High Court and (b) a person who has been a member of the Indian Legal Service and has held a post in Grade-I of that service for at least three years. In view of the fact that the Commission is recommending the selection of Judicial Members through a process of a high standard written examination followed by personal interview, it is necessary that there should be a wider choice for selecting meritorious persons as Judicial Members.

Accordingly, all law officers (irrespective of their designation) holding, for at least three years, a post equivalent to the post of Joint Secretary to the Government of India or any other post under the Central or State Government or in the public undertakings owned or controlled by the Central /State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, should be made eligible for competing in the examination and selection for the post of a Judicial Member. Accordingly, it is recommended that section 6(3)(b) of the Act should be substituted by the following words:-

"Law officers (irrespective of their designation) holding for at least three years, a post equivalent to the post of Joint Secretary to the Government of India; or holding for at least three years any other post under the Central or State Government or in the public undertakings owned or controlled by the Central/State Government, carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India."