The Supreme Court has cited the examples of several resignations, particularly those of governors, after change of regime at the Centre, to forward its view that the judiciary's independence needs to be preserved by shielding judicial appointments from the legislature and the executive.
A five-judge Constitution bench on Friday held as unconstitutional the 99th Constitutional Amendment Act and the National Judicial Appointments Commission (NJAC) Act that mooted a six-member panel to recommend names for appointment of judges in high courts and the Supreme Court.
“It is necessary to appreciate that the Constitution does not envisage the 'spoils system' (also known as the 'patronage system'), wherein the political party that wins an election gives government positions to its supporters, friends and relatives, as a reward for working towards victory, and as an incentive to keep the party in power,” said Justice J S Khehar in his judgment.
The court saw no merit in allowing a panel consisting of the Union law minister, two eminent persons — not necessarily from the legal field — along with the Chief Justice of India (CJI) and two seniormost judges, to choose judges, instead of the over-two-decade-old collegium system wherein the CJI and four seniormost judges make appointments to the higher judiciary.
Referring to cases of removal of bureaucrats, heads of educational institutions and governors after the new government took charge in May 2014, Justice Khehar, who headed the bench, said, the best out of those available have to be chosen for the judiciary and considerations cannot vary with a change of regime.
He also quoted BJP veteran L K Advani's interview to a newspaper, in which he had said, “Forces that could crush democracy are now stronger than ever before.”
The court said many governors demitted office after the NDA came to power to emphasise that politicians always prefer “their men” in the system.
It said a similar scenario was seen when UPA came to power in 2004. The court clarified that it was not casting aspersions on any government, but just trying to appreciate the ground reality of how the system works.
“It is also relevant to note that images of the spoils system are reflected from the fact that a large number of people holding high positions in institutions of significance resigned after the present NDA government was sworn in. Some had just a few months before their tenure expired and some even less than a month,” said the court.
Justice Khehar also expressed doubt over the strength of the civil society in giving any positive direction to the political executive in governance.
“At this juncture, it seems 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 yet sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent, for the political-executive establishment,” he said.
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