The collective order by a five-judge Constitution Bench of the Supreme Court to strike down as “unconstitutional and void” the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act 2014 legislated to replace the two-decade old collegium system of judges appointing judges, draws a line under arguably the biggest flashpoint between the judiciary and the executive over the past two decades. But given the widespread consensus that the collegium system has failed, this is unlikely to be the end of the matter.
Ordering the revival of the collegium system which allowed judges to appoint new judges since 1993, the Bench rejected the government’s plea to refer the case to a larger Bench.The apex court has simultaneously invited suggestions to improve the collegium system, fixing November 3 for its hearing on the matter. The broader judicial message is crystal clear. As senior lawyer Harish Salve put it, “SC is giving a message that the power is with them.”
This sets the stage for the most serious face off between judiciary and executive in a generation. While senior lawyer Ram Jethmalani hailed the verdict as a “historic day for democracy”, Attorney General Mukul Rohatgi scathingly called it “a flawed judgment ignoring the unanimous will of the Parliament, half the state legislatures and the will of the people for transparency in judicial appointments”. Union law minister Sadanand Gowda too says he was “surprised” because the NJAC “had 100% support of the people”.
NJAC was indeed enacted after a broad political consensus which evolved after several commissions and parliamentary committees found flaws in the collegium system over the years. It was ratified by Parliament as well as 20 state legislatures. This is why a senior advocate like K. T. S. Tulsi, while expressing disappointment over the judgment, quoted parliamentarians talking of the “tyranny of the unelected over the elected”.
This paper has argued in favour of NJAC because it promised to end opacity in judicial appointments. Judges don’t have unbridled power to appoint judges in most other liberal democracies. For example, US Supreme Court judges are appointed by the president and ratified by the Senate. For the UK’s apex court, an independent committee makes candidate recommendations to the prime minister who makes a final recommendation to the queen.
The Constitution envisages separation of powers between legislature, executive and legislature – which means each branch of government should stay within its own remit. Under NJAC the commission to select judges is composed equally of judges and non-judges, which should prevent power vesting exclusively with either judges or the political class.
With all due respect, rulings cannot be based on institutionalised distrust of the political executive or legislature. By calling for further discussion on the collegium system, the apex court itself has accepted that there were flaws in the system. It must now fix them. The judiciary remains a bulwark of Indian democracy and while preserving its independence is crucial, what’s equally incumbent on it is to look within and reform.
(Remarks : In India, the credibility & goodwill of the Politicians have reached such a low point and the Parliament has become so dysfunctional that citizens trust the higher Judiciary more than the Political Establishment.)
(Source: Editorial in The Times of India dated 17-10- 2015)
