Even as the Narendra Modi government is still to decide on its course of action over the National Judicial Appointments Commission (NJAC), the Supreme Court’s decision to strike down the Constitution (Ninety-Ninth Amendment) Act, 2014, to replace the over-two-decades old collegium system for appointment of judges in the higher judiciary, continues to draw flak.
While finance minister Arun Jaitley—also a lawyer—termed the verdict as “the tyranny of the unelected,” senior lawyer Abhishek Manu Singhvi said that the NJAC judgment was “grievously wrong,” “constitutionally erroneous” and a “naked usurpation of legislative power.”
In a stinging criticism of the judgment, Jaitley in his blog said that, in bringing back the collegium system, the top court had forgotten to consider the larger constitutional structure—that of parliamentary democracy which represents the “will of the sovereign… A Constitutional court, while interpreting the Constitution, had to base its judgment on Constitutional principles. There is no Constitutional principle which lays down that Indian democracy has to be saved from elected representatives.”
Terming the verdict as disappointing, Singhvi said that the NJAC should have been given a chance. “It is this very virtue—broadbasing and inclusion—which the majority verdict treats as the NJAC’s biggest vice, holding that any dilution of the judicial element per se violates judicial independence and hence the basic structure of the Constitution. India is perhaps the only nation which has this hypnotic and mesmeric faith in the infallibility of judges and in the gross and heightened fallibility of non-judges, howsoever eminent,” Singhvi wrote in his column.
Think tank Vidhi Centre for Legal Policy’s executive director Arghya Sengupta in his “open letter to the Supreme Court judges” said that the court’s verdict showed a deep “mistrust of the government,” “lack of respect for the people of India” as well as “unquestioned faith in your own absolute competence as judges.” Democracies all over the world have adopted different strategies and procedures for choosing the ‘right people’ as judges are expected to maintain a higher degree of rectitude compared to other public office holders.
The collegium system undoubtedly brought in greater independence of the judiciary. But it also had its problems as the appointments through this system are made in a non-transparent manner. Allegations of seriously unworthy appointments abound, but the system provides for no mechanism for audit or qualitative analysis.
“There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country,” said Justice J Chelameswar while upholding the 99th amendment in his dissenting but strong judgment.
To contend that the amendment is destructive of the basic structure since it does not lay down any guidelines is tantamount to holding that the design of the Constitution, as originally enacted, is defective, he says.
According to the judge, the fiasco created in the Dinakaran case (supra) and the Shanti Bhushan case (supra) would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved.
He says that transparency is an aspect of rationality and the need for transparency is more in the case of appointment process. He notes that proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. He quotes Justice Ruma Pal, who on record said: “Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”
He suggests that the induction of the representatives of civil society in the selection process of judges can be thought of as it acts as a check on unwholesome trade-offs within the collegium and incestuous accommodations between judicial and executive branches.
To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society, Justice Chelameswar says.
Only an independent and efficient judicial system can create confidence in the society which it serves. Selection process of the judges to the constitutional courts is only one of the aspect of such reforms. In his concluding words, Justice Chelameswar recollected the words of Lord Macaulay, “reform that you may preserve”.
Now that the Chief Justice of India has called a meeting of the Supreme Court collegium to recommend names for appointment of judges to various high courts, it remains to be seen what approach the government would adopt if the collegium recommends names.
Legal experts feel that after the judgment, there is no need to take any steps which could “lead to any kind of confrontation with the Supreme Court.” Singhvi too suggests the government to “forget the past and look ahead.”