OF THE JUDGES BY THE JUDGES FOR THE JUDGES

 OF THE JUDGES BY THE JUDGES FOR THE JUDGES

Constitution is what the Supreme Court says it is.

“In difficult times when political branches cannot be counted upon, neither can the judiciary.”

n  Justice Chelameswar, dissenting Judge in the five-Member SC Bench which struck down the NJAC Act as unconstitutional.

Since 26 January 1950 when our Constitution came into being, till 1993, the SC and the HC judges were appointed by the executive in “consultation “ – as mandated by the Constitution – with the CJI and the CJ of the concerned HC. The Constituent Assembly debate made it clear that “consultation” did not mean “concurrence.” During this period many eminent judges such as HR Khanna, VR Krishna Iyer, Jagmohanlal Sinha were appointed;  and many landmark judgments such as Kesavananda Bharati holding the basic structure of Constitution to be inviolate, and  H R Khanna’s  “right to life and liberty cannot be suspended by the executive” were delivered:

When Indira Gandhi appointed her nominees as CJI superseding eminent judges like HR Khanna in one instance and three other eminent judges in the second instance, the SC, in 1993, created a “Collegium” of the CJI and two – later extended to four - senior-most judges of the SC to be the sole arbiter of the appointment of judges. It is too early to say whether the judges that the Collegium appointed reached the level of eminence of the executive-appointed judges. But many of the Collegium appointees have brought disrepute to the judiciary: Soumitra Sen, Kolkata HC and V Ramaswamy of SC, the only two judges against whom impeachment proceedings were instituted; PD Dinakaran CJ, Sikkim HC, who resigned facing corruption charges; Shamit Mukherjee of Delhi HC arrested in a land scam case, to mention but a few; not counting judges against whom serious allegations have been made. And the latest, Justice C S Karnan of Madras HC who issued contempt notice to his own CJ! Also some interesting statistics: 99 judges in the SC and in 13 HC, ie 52% of direct appointments from among the lawyers, are from families of judges and senior lawyers; Justice Joseph of SC, “deserving persons have been ignored wholly for subjective reasons . . .”

The point being made is that collegium system is not the panacea it was, is being, made out to be.

SC could recast the Constitution to make the Collegium the sole authority in the appointment of judges because the executive had been weakened by Emergency and its aftermath, Babri Masjid, string of corruption scandals beginning with Narshima Rao govt’s time and peaking in UPA 2’s regime,   fractured mandate at the centre and at the states, multiplicity of political parties and opinions, and social and political upheavals that kept the political class engaged at the cost of everything else.

But populace was uncomfortable with the the judges being accountable to no one but themselves. Judges appointing judges was unheard of anywhere in the world: in the US, UK, Canada, Germany, France, South Africa, Brazil – judges were appointed by the executive.  Justics Venkatachaliah committee set up in 2002 recommended setting up of a NJAC. Political class, emboldened by the Committee’s report, and sensing the people’s restlessness, decided to setup the NJAC for the selection of SC and HC judges.  UPA 2 then prepared the NJAC bill but could not get it passed. When the present govt took over, it had the bill passed unanimously in the two Houses of Parliament and in twenty State Assemblies.  If the legislators are people’s voice, then vox populi wanted the judges’ selection system to change.

The NJAC was not about the judicial independence guaranteed by the Constitution. It was about the system of appointing SC and HC judges. Did India’s judiciary lack independence when judges were executive-appointed? Is the judiciary not independent in the US, UK, France, Germany and other countries where judges are appointed by the executive? Nixon, then President of the US, appointed the Prosecutor for Watergate. The Prosecutor’s investigations resulted in Nixon’s forced resignation.  Was the Prosecutor the less independent because he was appointed by Nixon?

The SC has struck down the NJAC Act. SC has also decided to make the Collegium more transparent, responsive and less secretive and has scheduled hearings to decide on the ways it can be done.

The debate on judges’ appointment has not ended with the SC’s judgement; it has just begun. Though the govt is not at present in a position to do anything about it, we don’t know what the future holds. What if govt with a very strong mandate at the centre and at many of the states emerges in the near future?