The judiciary has been the saviour of the Indian public on a number of occasions. It has stepped in when the bureaucracy, politicians and yes occasionally even the media have failed to protect public interest. While the role of the independent judiciary can hardly be forgotten, with utmost respect it is difficult to agree with the decision of the apex court in regard to the procedure for appointment of judges in the higher judiciary.
In a majority judgement, the Supreme Court struck down the validity of the National judicial appointments commission (NJAC), and held that the old collegium system should continue. One would certainly agree that the independence of the judiciary must be protected at all costs, but one wonders whether replacing the Collegium system, with something which was far more transparent would affect such independence. It is possible that the NJAC methodology may have had problems but it could have possibly been fine-tuned rather than rejecting it.
Under the current system a Collegium of the senior most judges headed by the Chief Justice of India (CJI), appoint judges of higher courts. The appointing authority is the President of India who makes these appointments in consultation with the Chief Justice. However, the concurrence of the CJI is absolutely necessary.
While hailing the role of the judiciary, one must appreciate that it is an institution run by human beings. In such a situation if only judges appoint judges without any input from other sections of society, can it be said to be the best system? It is true that in judicial appointments, there must be no interference particularly of politicians and bureaucrats and the line of control must be defended at all costs. Having said this, if the appointments are left to only those within the judicial system without any other stakeholder having a say in such appointments, it is likely that some degree of prejudice might creep in. Further, such a system does not appear to be even transparent.
In regard to appointments to the highest offices of institutions, be it business, industry or public offices the appointing process has inputs from others whose interests are affected. The stakeholders are consulted either directly or indirectly. One entirely appreciates that if there is political influence in appointments of judges the result would be disastrous, and probably this is one factor that may have crossed the minds of the judges when they rejected the NJAC. If that is so, it really reflects on the current quality of politicians.
The people have placed their faith in the judiciary. If that faith is to be maintained, then again with the utmost respect some changes in the process of appointment is essential. As some lawyers have suggested in articles appearing in the press there could be members from the Rajya Sabha and Lok Sabha reflecting the entire political spectrum, eminent lawyers, included in the committee which makes recommendations for these appointments. These recommendations could then be considered by the President. There could be a large number of variations possible. Instead of having a closed door system where persons from only one fraternity decide as to who should be appointed/promoted to more responsible positions, the system should be such that there is accountability to the public whose interest the judiciary protects.
It is however necessary to tread very carefully so that any change that is made does not impinge on the independence which is of paramount importance. Our country has witnessed scenarios where the concept of a “committed judiciary” was mooted. In the recent past, we have seen some battles between the two pillars of democracy namely the legislature and the judiciary to determine as to which one is supreme. The people of India hope that both these, understand their respective roles and respect. The people directly elect the members to the Lok Sabha, and indirectly through their representatives in the state legislatures, members to the Rajya Sabha. If these honourable members so elected go astray in discharging their responsibility, the people look up to the judiciary to crack the whip and rein them in. That is why those appointed to hold these high offices must be appointed in a manner that cannot be faulted. The judges know the saying that justice is not only to be done but must be seen to be done.
It is heartening to note that while the NJAC has been rejected, there is recognition of the fact that there is need to have a relook at the collegium system of appointments. It is possibly for this reason that a hearing has been fixed in November.
One hopes that as we celebrate the festival of lights, this confrontation between the legislature and judiciary will cease and a system that is independent, accountable and transparent will evolve. If and when that happens, there will be real cause for celebration.
I take this opportunity to wish all readers, their families and friends, a happy Diwali and a prosperous New Year.
