Judicial appointments: Stables are still to be cleaned

In the past couple of weeks, much has been written and said about the Supreme Court’s rejection of the new judicial appointments mechanism proposed by the government. So, what exactly is it that led to these myriad reactions that seem to have brought the executive and the judiciary on a collision course? Some few historic milestones may be relevant.

At its inception in 1950, the Constitution provided that judges of the constitutional courts (Supreme Court and High Courts) would be appointed by the President in consultation with such of the judges of the respective Courts as he deemed necessary.

In the Westminster form of Government, “the President” is taken essentially to be the Central government, and so, much power lay with the Union Law Ministry. It had however been a tradition, marred by the occasional Indira Gandhi misadventure, that the recommendations of the Chief Justice of India (CJI) would be accepted by the government.
However, in the background of the supersessions leading up to and during the Emergency, members of the bar took the issue up in the Supreme Court seeking some insulation of the judiciary against ministerial excesses.

The first foray in 1981 met with limited results, but the subsequent efforts in 1993 and 1998 were path-breaking in ensuring that not only did the judiciary (and not the Central government) have primacy in appointing judges, but that a collegium of the five senior-most judges of the Supreme Court would take the decisions concerning appointments to the apex court.

In the 17 years since, the ‘collegium system’ as it is known has had a bumpy ride. Hidden behind a thick veil of secrecy, names are proposed, traded, sacrificed, all with the kind of backroom manoeuvring that would make Machiavelli proud. Anonymous missives make their way to the residences of the collegium members, warning them against a candidate or two.

Allegations are floated and old stories dug up with tenacity. A judge from Odisha on that august body blocked another from the same state simply because he did not like him.

Another adornment from Mumbai successfully kept at bay a progressive colleague from the metropolis because of stray whispers he had been privy to.

Very often, however, the inevitably meritorious candidates have won through, simply because they could not be overlooked. When yet another barb was cast at the selection system last year, former Chief Justice Lodha despairingly remarked – “I am from the first batch of the collegium and Rohinton Nariman is from the last. If the collegiums have failed, then all of us have failed.”

The reason for the Constitutional Amendment that sought to restore the executive’s primacy and the National Judicial Appointments Commission Act that would implement this mechanism was therefore partly attributable to the Supreme Court itself. The government claimed that the opaque and unilateral nature of judicial appointments had led to several egregious occupants of high office and that the new six-member panel was the perfect solution.

What was played down was the fact that two of these six members would be “eminent persons” who would be selected by the prime minister, the CJI and the leader of the Opposition. The other four would be the three senior-most judges of the Supreme Court and the Union law minister. Tied to this was the fact that any two members of the Commission could veto a selection made.

Constitutional challenges
The nation’s highest court is probably unique in the common law world for having had a broad power of judicial review (the power to strike down law when inconsistent with the Constitution), which was eventually widened to evolve what is known as the ‘basic structure’ doctrine to test amendments to the Constitution.

It is precisely this that was sought to be invoked by the petitioners. History was against them, with only five instances over 65 years when such Constitutional challenges had succeeded, and never on the ground of judicial independence.

History was rewritten on October 16 by a majority verdict of 4:1. Wading through over a 1,000 pages of carefully worded judicial opinion is never an easy task, but probably aware of the confusion that has arisen in past multiple-opinion rulings, the court saved the layman the trouble by also delivering a detailed majority opinion making clear its findings. Many of these are unprecedented, but of great weight and wisdom.

The recognition of judicial independence as a basic feature of the Constitution and the immutable primacy of the judges in selecting their own ensured that the NJAC was given a swift burial.

The insufficient weightage given to the judiciary coupled with the vagueness of the “eminent persons” (on which there was no agreement among all the lawyers representing the government) raised grave concerns on how independent the appointments would be.

Much has been made of the fact that the law had been passed by a unanimous Parliament, but that is irrelevant to a Constitutional democracy where judicial review is important not because it is elected through popular franchise, but precisely because it is unelected, and hence beholden to none but that sacred text.

In dissent, Justice Chelameswar is conservatively optimistic of an alternative mode being workable, but as recent events have shown, and as is reflected in the opinions of Justices Khehar and Lokur, little stock can be placed by the vagaries of our eminences.

Most important however, is the self-realisation of the Supreme Court in the flaws of the collegium system, now once more extant with the judgment. The fact that this is acknowledged, and that the petitions are put down for hearing on November 3 is a clear sign that the stables are to be cleaned.

There was no need for this step to be taken, but the humility and wisdom it evidences is a conciliatory initiative – one that the government must grasp with both hands to take the nation forward.

(The writer is Advocate, Supreme Court)

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