“Are Indians losing their faith in the judiciary?”. That was the headline of the Delhi Diary entry of May 20, 2015 which was a critique on the National Judicial Appointments Commission (NJAC) Act and the Supreme Court’s reluctance to go along with a law that had been passed unanimously by both Houses of Parliament as well as 20 of the 29 states.
Now, after more than six months of intense arguments, discussion and deliberation, India’s apex court has declared that the NJAC Act, which addressed issues related to the appointment of judges to the higher courts, is unconstitutional and, therefore, status quo ante will be maintained. Status quo in this instance meant appointments of all judges to the state high courts as well as the Supreme Court of India will be the sole preserve of the ‘collegium’ of judges headed by the Chief Justice of India.
Of the four main estates of democracy, the legislature and the executive may quite often have similar viewpoints. It is especially so if the government of the day has a comfortable majority in the legislature. The Narendra Modi government enjoys a huge majority in one of the two Houses of Parliament but its case is definitely weak in the other. Nevertheless, the decision to pass the NJAC Act was unanimous because political parties cutting across ideological and regional lines were convinced that the need of the hour was to restructure the judiciary, the third estate of democracy, so as to make it more efficient and broad-based.
The politicians had come to such a decision after years and years of criticism from the fourth estate of democracy - the Press, of course - that the judiciary has become inept at handling the huge backlog of pending cases (30mn or thereabouts) as also some very serious charges of corruption and nepotism not just in the lower courts but also in the high courts and even the Supreme Court.
The apex court’s verdict last week, with only Justice Jasti Chelameswar giving the dissenting note against the majority of Justice Jagdish Singh Kehar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, did mention that all is not well even with the collegium system of “judges appointing judges” and that the time is ripe to improve the 21-year-old system of judicial appointments. But still the court would not want a representative of the government, or any ‘outsider’, to have any say in the matter of appointing judges.
“Help us improve and better the system. You see the mind is a wonderful instrument. The variance of opinions when different minds and interests meet or collide is wonderful,” said Justice Kehar, who headed the five-man bench, in his verdict.
But isn’t that what the government - or parliament, to be precise - was trying to do? The NJAC Act envisages a six-member panel deciding the appointment of all judges to the high courts and the Supreme Court. This panel was to be headed by the Chief Justice of India. It was to have two other most senior judges of the Supreme Court as well as the federal law minister and two ‘eminent persons’ from the civil society. These two could be Nobel laureates or people of repute from the fields of arts and science or even philosophy. After all, at least one judge among the four who rejected the Act indulged in copious amounts of philosophy in his judgment. And these two ‘eminent persons’ were to be selected by a panel consisting of the prime minister, the Chief Justice of India and the leader of the main opposition party in parliament.
But no, the court would not want to have anything to do with the government’s proposal. A French prime minister of the previous century had once famously said that “war is too serious a business to be left to generals”. It still is. But learned judges of India’s Supreme Court - with the exception of one, of course - seem to think otherwise. In his dissenting judgment, Justice Chelameswar said: “To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.”
Politicians, especially those in India, are a much-maligned breed. And somewhat justifiably so. But it is nobody’s case (except perhaps Arvind Kejriwal’s) that every politician is bad, corrupt and evil. If that were so, the judiciaries in the rest of the democratic world, most of it top rate, would have failed to administer justice. India is the only democratic country in the world where the judges select judges. In the US, for example, judges are not just appointed by the government but even have to undergo public scrutiny in open forums. In Britain, an independent committee recommends the names of judges to the prime minister who, in turn, sends his recommendation to the Queen. In India it is such a secretive affair that led Justice Chelameswar to remark that “the records (about judges’ antecedents) 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.”
The chief reason for the rejection of the NAJC is the court’s fear that judicial independence would be compromised because the Act enables ‘outsiders’ to have a say in the matter. Even if one were to take the argument to its extreme that the so-called ‘outsiders’ - the law minister and the two ‘eminent persons’- were to gang up, for want of a better word, against the three senior judicial officers - and this is a near-impossible scenario - they still cannot impose their will on the selection committee because any two dissenting votes would carry the power of veto. It is difficult, perhaps not impossible, to come up with a more equitable mechanism.
Justice Joseph noted in his verdict that “direct participation of the Executive…would ultimately lead to structured bargaining in appointments…Any attempt, by diluting the basic structure, however remote be the possibility, is to be nipped in the bud. I would say the parliament has no power to gerrymander the Constitution.” But the Constitution had already been gerrymandered in 1993 and that is how the collegium system was put in place. Two wrongs would not make one right, but then again why insist on continuing with the original wrong?
Interestingly, the political fall-out of the judgment has been a curious mix. While the ruling Bharatiya Janata Party described the verdict as a “setback for parliamentary sovereignty,” the opposition Congress Party, which had originally proposed the Act and had supported its passage in both Houses of Parliament as well as in the states where it is the main ruling party, now says it will not co-operate with the Modi government to propose an amended version of the Act. “Our support was given under different circumstances. Now it is another story. Similar support is out of the question,” one senior Congress leader was quoted as saying. The party’s official spokesman Randeep Singh Surjewala even went to the extent of describing the judgment as a “lack of
confidence in government” forgetting that the court was up against parliament as a whole and not the government in isolation.
The Congress Party may have its views rooted in the politics of the day, but that has not prevented eminent lawyer and the party’s national spokesperson Abhishek Singhvi to launch a scathing attack on the court’s verdict, albeit strictly on a personal basis. Charging the court with arrogating to itself more powers than were originally mandated by the framers of the Constitution, Singhvi wrote in The Times of India: “All teleological and purposive acrobatics cannot convert the simple and unambiguous words of our Constitution (the “President shall appoint…after consultation”) in articles 124/217 to mean that the President (ie; the central government) cannot appoint and that only the five seniormost apex court judges can do so! Even Alice in Wonderland could not take such liberty with the English language.”
Arun Jaitley, another legal luminary who is also the country’s finance minister, also could not find any merit in the judgment. “A constitutional court, while interpreting the Constitution, had to base the judgment on constitutional principles. There is no constitutional principle that democracy and its institutions has to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?” Jaitley wrote in his blog.  
That the collegium system has serious flaws and has been ineffective over the past 20 years is borne out by the fact that the bench has fixed November 3 to hear suggestions on ways and means to improve the system. It will be for the greater common good if somebody comes up with a suggestion that can better the NJAC and at the same time help the court keep its prestige intact. Otherwise the question that this column raised in May could sadly be answered in the affirmative!