A five-judge Constitution bench of the Supreme Court on Friday scrapped the National Judicial Appointment Commission – passed by Parliament as the 99th amendment to the Constitution – disallowing the Executive a hand in selection of judges for appointment to High Courts and the Supreme Court.
Though one of the judges, Justice Chelameshwar had his reasons to uphold the validity of NJAC, the ruling will prevail till the government of the day at the Centre decides its future course of action to protect its Constitutional amendment. Therein is the recipe for a future confrontation between the judiciary and the executive on the issue of judicial independence.
India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.
What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.
Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.
It is the same principle of judicial accountability that provides a hierarchical system of the Supreme Court over the high courts and the high courts over the subordinate judiciary. However, the Supreme Court does not have an authority above it. So, how will the apex court account for accountability? The age of whimsical Victorian morality is long past us and Indian judges themselves have often admitted that they too are humans and therefore subject to mistakes. They are the conscience-keepers of the Constitution. Does it mean they are accountable only to themselves?
The entire controversy between the judiciary and the executive over the appointment system arose because of follies committed by both in the past. In the early years after Independence, it was so that most of the judges of the Supreme Court were previously judges of the high courts, with the senior-most of them taking over as Chief Justice of the apex court. It was in 1958 that the Law Commission of India found that the process did not take merit into account.
The Commission’s view-point was ignored until former Prime Minister Indira Gandhi decided to openly interfere with the judicial appointments, thus confirming her authoritarian mood that would eventually plunge India into the dark period of Emergency. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding three justices. She obstinately named his successor too – Justice MH Beg – superseding Justice HR Khanna who, coincidentally had dissented in a 1975 case on the need for Emergency detenus to have recourse to legal remedy.
The judiciary stung by such blatant misuse of power, and turning a blind eye to the less than proficient postures of the two Indira’s appointees, decided to bring in safeguards. The issue that remained unresolved in major judicial debates and in the deciding of such cases in courts was the nature of “consultation” (of who-ever, the Chief Justice or the President through the executive, etc) in the appointment of judges. Through rulings in what are called the First Judges’ Case (1981), the Second Judges’ case (1993) and the third Judges’ case (1998), the judiciary twisted and turned with this word.
First it said the Constitution talks about “consultation” and not “concurrence”, meaning thereby that while the Chief Justice can be consulted, the opinion of the President and not of the Chief Justice will have primacy. That was fine with the Constitutional provision. Then it made a turn, saying the opinion of the Chief Justice should have primacy. This was against the provision of the Constitution which says the President will appoint the judges after consulting the Chief Justice. This amounted to the judiciary becoming what some legal experts a self-appointed institution which was not as per the Constitution. The judiciary elsewhere in the world does not have such freedom to appoint judges by itself. In any case, since then, the collegium system came into existence which nullified the role of the executive in higher judicial appointments, the executive nursing its political wound saying the judiciary was over-reaching and that the executive would have to have a say in the appointments.
The NDA government brought in a bill to set up the NJAC. It was passed by Parliament in 2014 and came into force from this April. At last count 20 states had ratified it. However, some legal experts challenged it in the supreme court saying it stifled the role of the chief justice of the Supreme Court, subverts the independence of the judiciary and works against the “basic structure” of the Constitution.
Their contention was that the “basic structure” of the Constitution is not amenable to change at all and that judicial independence is one key aspect of the “basic structure” and therefore cannot be diluted by Parliament. A landmark judgement in 1973 (Kesavananda Bharathi case) had classified certain elements of the Indian Constitution as "basic structure". It has been held that the “basic structure” of the Constitution cannot and should not be tinkered with, as it belongs to the core of the Constitutional spirit.
The fight between independence – whose? -- and accountability – whose? -- has only begun.
The larger issue the judiciary will have to think about is the primacy of the will of the people in democratic India. Both Houses of Parliament had passed the NJAC Bill and 20 state assemblies have already ratified it. By committing itself against the NJAC, the Supreme Court with one stone wasted the opportunity of tweaking the NJAC to its satisfaction in consultation with the government and, secondly, has put itself in an impossible position to defend in future its preferred system of appointing judges on its own.