The apex court verdict favoring the collegium system over the National Judicial Appointments Commission has pitted the judiciary against the executive. Can the crisis be used to usher in judicial reforms?
By Ramesh Menon
When the apex court rejected the 99th Constitutional Ame- ndment that created the National Judicial Appointments Com- mission (NJAC), it was seen as one of the most controversial judgments since Independence. The NJAC was to appoint judges to the Supreme Court and high courts.
The judgment came as a shock to the government that had spared no effort in pushing it through parliament. The center had taken the stance that the earlier collegium system that appointed judges was faulty and wanted to bring in a system where the executive would have a greater say in who should be appointed to the higher judiciary.
Justice Jagdish S Khehar, who headed the five-member bench that gave this verdict, said there had been no case in the past where the central government had said that the judge being appointed had no integrity. Justice Madan B Lokur pointed out that the presence of the law minister in the NJAC casted a doubt on the principle of cabinet responsibility. Justice Kurian Joseph said that further hearing was required on the matter as the collegium system needed to be improved. Justice Adarsh K Goel said that the constitution signified the will of the people, while the parliament only represented the people’s will at a given point of time. Justice J Chelameswar, the sole dissenting judge in the bench, argued that to entirely eliminate the government from the selection process was against the country’s democratic principles.
- Some of the reasons he gave for his dissenting opinion were:
Transparency is a vital factor in constitutional governance and judicial appointments but proceedings of the collegium were absoutely opaque and inaccessible.
The assumption that “primacy of the judiciary” in the appointment of judges is a basic feature of the constitution “is empirically flawed”. - There were cases where the apex court collegium “retraced its steps” after rejecting recommendations of a particular name suggested by the high court collegium, giving scope for a great deal of “speculation”. The records were absolutely beyond the reach of any person, including judges other than the Chief Justice of India (CJI) and so did not enhance the credibility of the judiciary.
- Attorney-general Mukul Rohatgi was right in his submission that exclusion of the executive branch was destructive to the basic feature of checks and balances—a fundamental principle in constitutional theory.
NO INTERFERENCE
The judgment sent a clear message to the executive that it would brook no interference in its function and that its independence was supreme. It restored the collegium system that was in vogue for more than four decades, where the CJI and a group of judges had the final say.
The NJAC, on the other hand, comprised three Supreme Court judges, the law minister and two eminent persons. It would, therefore, have only 50 percent of say in the appointments of judges. And the general apprehension was that the government would hold its sway in the appointments.
Numerous BJP leaders like Kalraj Mishra who is the Union minister for micro, small and medium enterprises, said that striking down the unanimously passed NJAC Act was an effort to weaken parliament’s sovereignty. In a public debate on the judgment, RM Lodha, former CJI, said that while the legislature has all the powers to make laws, it was for the judiciary to determine whether the law had destroyed basic features of the constitution and if it did, it was its duty to strike it down.
The government’s view was that the constitution never envisaged primacy of the CJI in appointing judges and the Supreme Court had wrongly assumed it.
Soon after the judgment, the government reacted strongly, which was hardly surprising as it was clear that it wanted control over the appointment of judges. There have been numerous instances in the past when the law minister has called the shots for appointments. Law Minister Sadananda Gowda said that he was surprised. Finance Minister Arun Jaitley criticized it in a Facebook post saying: “Indian democracy cannot be a tyranny of the unelected.” Union minister Ravi Shankar Prasad who was earlier a law minister, said that the judgment was against the will of the people as the NJAC bill was unanimously passed in parliament by those who had been elected on a popular vote.
Sources close to the government said that it would at an appropriate time later try to again introduce another bill. Jaitley has publicly said that primacy of parliament is part of the basic structure of the constitution and the appointment of judges was a non-transparent process.
EASIER SAID THAN DONE
However, it may not be so easy to push through this legislation again. The Congress, which had earlier supported the creation of the NJAC, backtracked saying that it would not support the government if it tried to go against the Supreme Court verdict.
Nick Robinson, a research fellow at the Centre for Legal Profession at Harvard Law School, pointed out that the Congress and many others in civil society saw merit in the apex court judgment as they were worried about the BJP-led government trying to poli-ticize independent institutions and intimidate dissenters.
The five-member bench which heard the NJAC case will now hear suggestions from all parties on November 3 on how the collegium system can be improved. Legal experts say that the case should have been heard by a larger bench as the original judgment that brought in the collegium system was heard by nine judges.
This judgment took a long time coming. When the NJAC matter was heard on July 15, the court reserved its judgment. Later, Justice Khehar who headed the bench, circulated his judgment to the other judges calling the NJAC unconstitutional.
It is well-known how the then prime minister Indira Gandhi took it upon herself to decide out-of-turn appointments to the judiciary despite Article 50 of the constitution being clear that the executive could not interfere in the appointment of judges and only had an advisory role. During the Emergency, favored judges were promoted and others who were seen as committed were transferred. Later, the judiciary cut the role of the executive in appointments by instituting the collegium system.
The appointment of judges was always seen as a vexed issue. In 2002, the Consti-tution Review Commission hea-ded by Justice Venkata-chaliah, had recommended the constitution of a commission to appoint judges. This came about as there was apprehension that the collegium system was not transparent.
The question of judicial accountability catapulted into debates raising questions about why a flawed system was being allowed to continue.
MIDDLE PATH
In the present verdict, Justice Khehar had suggested that one or more eminent persons could be given an advisory or consultative role and allowed to express their opinion on the nominees to be considered. The collegium would not be required to follow the suggestions but be obliged to keep the opinion tendered, he said. If this is done, there could be room for a government representative to give a view and it would be helpful to also get some non-lawyer to be on the panel to provide a different perspective.
But there is no fail-safe method. In a way, both the collegium and NJAC are good ideas and can both work. But that needs transparency and honesty which is sadly missing in public life. If decisions regarding appointments are done purely on merit, both systems are perfect.
Former Chief Justice of Himachal Pradesh High Court Ram Bhawan Misra told India Legal: “After this judgment, the judiciary must prove that the collegium is a good system so that no questions are asked about its credibility. The idea of the NJAC came about because there were question marks on the appointments done by the collegium system. They definitely have a responsibility to ensure that there is transparency, honesty, sincerity and devotion to work while appointing judges. Every move of the judiciary will now be seen through a microscope.”
Clearly, the debate on whether the NJAC or the collegium system is better is not over. We are going to hear a lot on this issue in the coming months, though as of now, the government is abiding by the apex court’s verdict. Jaitley, a former law minister, has in fact said that a debate for a better system will continue as mere independence of the judiciary would not make it credible and that would come only if there was accountability. Checks and balances would be required, he said.
TOUGH CALL
But how these judicial reforms are ushered in is the sticky question. In the months ahead, political observers feel that much dirty linen will be washed in public to expose the misdoings of the judiciary and the judges who head it. This will be done just to prove and corroborate that the NJAC had a point in ensuring judicial accountability and bringing in others too to decide on who would be appointed as judges.
The current imbroglio over the NJAC has affected the disposal of cases as many appointments in courts are hanging fire. There are a staggering 3.15 crore cases pending across India. Estimates say that it would easily take at least 60 years for these cases to be heard and disposed of. Not to mention new cases which crop up. India has about 16,000 judges who are presently dealing with over 66,000 cases in the Supreme Court, 45 lakh cases in high courts and 2.7 crore cases across district and subordinate courts. It is anybody’s guess how long it will take for justice to be delivered. Justice delayed is justice denied. Many litigants, in fact, die much before their cases are heard.
JUDGE’S LAMENT
Former Supreme Court judge Markandey Katju came out with a quick-fire blog reacting to the judgment. Called Indian Judi-ciary is beyond redemption, the blog said: “So far as my own opinion is concerned, it matters tweedledum or tweedledee whether we have the Collegium system or #NJAC, as I believe that the Indian judiciary is beyond redemption. What kind of a judiciary is it which often takes 20-30 years to finally decide a case (including appeal, revision, writ petition etc.)? There are over 32 million cases pending in the Courts of India and it is estimated that even if no new case is filed it will take 360 years to clear
the backlog.”
Days after the judgment, CJI HL Dattu moved fast to restore the collegium system. He cleared the names of 24 additional judges in six high courts to be appointed as permanent judges. This should come as a relief to lakhs of litigants whose cases are pending. The additional judges made permanent were in the high courts of Gauhati, Bombay, Andhra Pradesh, Calcutta and Jharkhand.
On the issue of 21 additional judges in high courts, Justice Dattu said that the collegium had extended their tenure by three months. Soon after the judgment, the law ministry wrote to the CJI that Rohatgi had given an opinion that the collegium’s recommendations made before the judgment would need fresh clearance.
And significantly, there would be around 100 such cases that will have to be considered now that relate to the transfer, appointment and confirmation of judges.
Can the constitutional crisis triggered off by the NJAC judgment become an opportunity to usher in the much-needed reforms? One can only hope that it does despite the political anachronisms that continue to paralyze India.