JOIN USIndependent judiciary?
Every civilised nation needs an independent judiciary to act as a buffer between the citizen’s rights and the government’s wrongs. But does an independent judiciary mean that new judges should be appointed by older judges only?
Should there be a self-perpetuating elite priesthood of constitutional pundits, who alone can be trusted to be truly independent, and judge without fear or favour according to the constitution.
The constitution provides for superior judges to be appointed by the government in consultation with the Chief Justice. However, for the past two decades, India’s judges have been appointed by the judges themselves.
Appointments to the Supreme Court were recommended by collegiums of the five senior-most judges of that Court and similarly, High Court judges appointments were recommended by the three senior-most judges of the concerned High Court. This procedure was the result of a somewhat innovative judgment in 1993, by Justice J S Verma in the first Supreme Court Advocates on Record Case.
The UPA government got a constitutional amendment bill passed through the Rajya Sabha but a fortuitous slip in parliamentary procedure prevented the bill from being tabled in the Lok Sabha.
The process was nevertheless seen as a warning shot fired across the judiciary’s bow. At that time, with elections then on the horizon, veteran jurist Fali Nariman told me, “A majority government will see a conformist judiciary”. Having lived through the Indira Gandhi era where a strong leader had attempted with some success to mould the judiciary in her likeness, Fali’s pessimism was not without basis.
An unprecedented single party majority in the parliamentary elections of May 2014 saw an aggressive government halting the appointment of Gopal Subramanium whose past conduct as a lawyer was seen as unfriendly.
Soon, despite Chief Justice R M Lodha’s spirited public defence of judicial independence, the constitutional amendment and the accompanying National Judicial Appointments Commission (NJAC) Act was passed by parliament.
A face-off has been brewing in India between the government and the judiciary since August 2014, when the National Judicial Appointments Bill and 121st Constitution Amendment Act were passed by parliament.
The new structure of the NJAC provides for a six member body comprising of three senior Supreme Court judges, two eminent citizens and the law minister to make recommendations for all judicial appointments to the High Court and Supreme Court. In effect, what the NJAC has done is that the judiciary’s 100 per cent say has been whittled down to 50 per cent.
What is worse is the fact that even a name backed by all three of the judicial members can be vetoed by any two of the other members. In actual working, with most occupants having a transient presence, power would most likely devolve on the permanent convenor of the commission who would be the secretary of the department of justice.
Since the three judicial members will not necessarily know members of the bar in all High Courts, a great deal of deference may be given to lists drawn up by state governments and forwarded for the commission’s approval. The package as a whole is designed to willy-nilly wrest control of judicial appointments back into the hands of the executive.
Petitions were immediately filed challenging the two Acts. In August 2014, when the constitutional amendment had not been ratified by the states and hence had not come into effect, the court disposed of the petitions as premature and did not entertain them.
It, however, left it open to the petitioners to reiterate their challenge after the law came into being. With 17 of the 29 states having ratified the Act and the President having given his assent in December 2014, it now remains for the government to notify the date on which the NJAC will come into force.
A new set of petitions were again filed in January 2015. For over two months, the petitions were not listed on board for hearing before the court. In the meanwhile, an impasse of sorts came into being. The old order did not fully die and the new was not fully born.
Law Minister D V Sadananda Gowda then told the judiciary that new appointments cannot be made since the constitutional amendment has come into force. He requested the Supreme Court to hear and deliver judgments on the challenges to the constitutional amendment. On the other hand, the NJAC could not be constituted without the nomination of two eminent persons as members.
Eminent members
Chief Justice H L Dattu has so far refused to participate in the nomination of the two eminent members to the NJAC as he feels that such a step may embarrass the institution when it takes up the constitutional challenge. In the meanwhile, the collegium has met to make recommendations on transfers and appointments of chief justices of High Courts from amongst senior existing judges.
It also made a recommendation for the appointment of Justice Amitava Roy to the Supreme Court which the government processed on an urgent basis since the learned judge would have otherwise superannuated from the High Court upon attaining 62 years of age. Some other names too were discussed by the collegium but no consensus seems to have resulted on any other name.
If judges keep retiring and their replacements are not available immediately, the overburdened litigation system in India will collapse, taking with it the nation’s calling card of reliance on the rule of law. The judiciary has so far stood firm, primarily out of a sense of occasion and the weight of India’s constitutional history. The government backed by majority support in Parliament and outside, saw no incentive to make any gesture of conciliation.
Ultimately, the only way forward was for the SC is to schedule a hearing of the petitions and to ascertain the government’s position in court. The matter is now scheduled to be heard in court on March 10, 2015 by a special bench of Justices Dave, Chelameswar and Lokur. India will be expectantly watching to see whether the judiciary this time will stand up to be counted when it matters.
(The writer is advocate, Supreme Court)