Should Judges Really Have The Final Call On Who Gets Appointed To The Judiciary?

Posted on October 24, 2015 in Politics

By Sakshi Abrol:

Notwithstanding the swathe of arguments and rebuttals that ensued following the Supreme Court verdict abrogating the National Judicial Appointments Commission (NJAC) Act that had apparently seen a near-unanimous concurrence from the legislature, a rightful pillar of our democratic edifice; the proponents on either side of the spectrum would agree on at least two premises:

That the Collegium system of judicial appointments is riddled with a number of inefficiencies like non-transparency and nepotism rendering it an ugly gamble for position amongst the so-called exemplars of the justice, and that the closed door collegium system often neglected merit to give precedence to cherry-picking of personal favourites (which is not a hidden secret). It wouldn’t thus be technically contemptuous to draw an analogy between these self-appointing elite and pesky politicians who scrounge and squabble to get their pets a piece of the cake. That the collegium system is a monumental affront to the glory and impeccability of the guardian of our Constitution, is an established truth.

Image source: WordPress
Image source: WordPress

The very essence of our Constitution vests on a separation of power between various institutions and a coherent system of checks and balances, a quintessential element of which is the independence of our judiciary.

The common grounds however, end with that and what follows next is an entire discourse on the merits and de-merits of the judgement. Picking up from the plethora of articles written on the issue, simplistically put, there are two vantage points from where the debate can be analyzed; 1. As a part of a timeless tussle between the executive and the judiciary and 2. From the point of view of the denizens of ‘Argumentative India’.

The adherents of the first category see this as the turbulent history of the 70’s repeating itself where the ‘will of the people’ is touted against the upholding of our ‘Constitutional norms’. So, while Jaitley responded with the sobriquet, ‘tyranny of the unelected’, Justice Lokur while writing the judgement said, “It would run the danger of creating a tyrant in the President who would enjoy absolute powers to appoint judges to SC and HCs.” The manner in which the watershed judgement acknowledges the presence of a rather unanimous legislative backing to the NJAC has, for some, laid bare the live wires of confrontation between the protector of our laws and the representative of the will of the people.

However, this theory is opposed by others who have chosen to zero-in on a particular statement made by Justice Khehar, “At the present juncture it is difficult to repose faith and confidence in the civil society, to play any effective role in that direction. For the simple reason, that it is not sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent to the political executive establishment. It is therefore, the higher judiciary which is the saviour of the fundamental rights of the citizens of this country…” While the statement is in complete consonance with the constitutional task that has been assigned to the Judiciary in India which also makes it an indispensable democratic ingredient, the manner in which questions have been raised on the competence of our civil society has raised a number of frowning eyebrows. The judgement thus not only castigates the non-partisan decision-making ability of the political executive, but also rather vociferously exposes the chinks in the armour of the civil society as well and is being read as a self-indulgent, arrogant propaganda by the judges claiming to be infallible and invincible.

Though both the debates have the intrinsic capacity to open up the Pandora’s box making this discussion an even more intellectually riveting exercise, the problem lies in the obfuscation that necessarily accompany them, relegating the actual issue to the back burner. A post-mortem of the judgement would inevitably tread into the troubled waters of marking fiefdoms by the legislature and the judiciary but it does not end there. The brass tack of the judgement boils down to the ‘basic structure doctrine’ whose genesis can be traced to the Keshavananda Bharati case where the amending powers of the legislature vis-à-vis the Constitution was circumscribed in a rather open-ended manner by the judiciary. The basic structure of the Constitution includes our inexhaustible philosophical treasures of sovereignty, territorial integrity, judicial review, federal structure as well as the ‘essence’ of Fundamental rights without having the actual rights cocooned within the folds of this judicial innovation. If any constitutional amendment therefore seeks to tamper with the essential features of the Constitution, it is for the court to annul it on ground of ultra vires.

The independence of the judiciary invariably finds mention here and is therefore insulated from any executive or constituent interference. The autonomy of the judiciary is critical to the sustenance of our democratic ethos but what does this independence comprise of? Because, if judicial appointments de facto imply judicial independence, the SC judgement automatically passes the test of mindful public scrutiny. And if the nitty-gritty of judicial independence itself is shrouded in mystery, the judgment has already glided under the hammer. Factually, there are a number of safeguards in place to ensure the independence of the judiciary more convincingly in our country where the state is a major litigant in the court of law. The administrative expenses of the SC drawn from the Consolidated Fund of India, the arduous procedure for impeachment of a judge, and the prerequisite passage of a motion to discuss the conduct of a judge for his removal are some constitutional provisions that uphold the independence of the judiciary. The collegium system of judicial appointments despite its various shortcomings, keeps the executive at an arm’s distance from tinkering with the chimerical idea of a ‘committed judiciary’. Seen in this light, an independent mechanism to appointing judges profoundly contributes to the overall independence of the judiciary because even the slimmest entry point to the executive would cataclysmically wreaks havoc to this colossal apparatus of justice. This judgement is then nothing short of a re-iteration of the judicature’s commitment to the preservation of the ‘basic structure’ of our constitution and hence cannot be dismissed as a case of judicial overreach or judicial tyranny. It is also true that the collegium system with its slew of vices will continue to cast its shadow on the rosy image of the judiciary as the paragon of justice and will have to be sufficiently revoked or subsequently abjured lest the maturing civil society will rise to clip the wings of this impending tyrant. The NJAC would have only replaced this system of internal despotism with external politicking. History stands testimony to the fact that whenever the executive has faltered, the judiciary has plugged in the gap with its expertise but the riddle of judicial appointments this time has caught both these institutions unaware. It is time we hold the bull by its horns and find a pragmatic way out so that the judge-makers remain wedded to the same principles of impartiality and sagacity they abide by while becoming judges themselves. The independence of the judiciary should not be preserved at the cost of its accountability.