Judiciary and the case for reform

The government’s decision to move an impeachment motion against Justice Yashwant Varma in the monsoon session of the Parliament is a rare instance of such punitive action initiated against a judge. The case involving the Allahabad High Court judge has raised questions about judicial integrity and the collegium system. The Supreme Court, through the three judges cases, formulated the collegium system to eliminate executive interference in judicial appointments. The move, no doubt, asserted judicial independence but made it liable to the criticism that the system was made unaccountable and non-transparent. These arguments have gained traction with Justice Varma’s case and how it was dealt with initially by the apex court.

Any democracy stands on three pillars – the executive, the legislature, and the judiciary. It would not be an overstatement to say that the judiciary is pivotal here. This is for two reasons. First, it is the guardian of fundamental rights and second, it is the defender of the interests of the State. Therefore, it needs to be independent so that it can function without fear or favour. But it is equally important in a democracy that each organ is kept in check by the other two so that a balance is maintained. The Indian Constitution also follows this principle. It is here that the collegium system becomes problematic.

Although it succeeds in maintaining the independence of the judiciary, it fails to uphold the checks and balances principle. There have been attempts to set this right by constituting a National Judicial Appointments Commission (NJAC) which would consist of the CJI, two senior judges of the SC, the Union Law Minister, and two eminent members. The NJAC Act which was passed by the parliament in 2014 was struck down by the apex court as unconstitutional, reiterating that interference by the executive would undermine the independence of the judiciary.

In light of recent events, it has become apparent that the current system needs some change if the faith in the judiciary has to be reinstated. It should be noted here that in the United States, the President has the power to nominate the members of the Supreme Court, but the candidature has to be confirmed by the Senate. In the UK, judicial appointments to the Supreme Court are made by an independent selection commission whose members are drawn from the UK Supreme Court and the Judicial Appointments Commission of the UK and Wales, Scotland, and Northern Ireland, who make their recommendations based on consultations with senior politicians and judges. These recommendations will have to be approved by the Lord Chancellor who then sends them for formal approval by the Prime Minister and the Crown. The mechanisms in both countries involve members from the other branches of the government, making them broad-based.

Independence vs accountability

The Chief Justice of India B R Gavai, while speaking at a round table in the Supreme Court of the UK on June 3, said, “Such occurrences (instances of corruption) inevitably have a negative impact on public confidence, potentially eroding the faith in the integrity of the system as a whole.” He, however, defended the collegium system and said, “There may be criticisms of the collegium system, but any solution must not come at the cost of judicial independence. Judges must be free from external control.”

Judicial independence is, no doubt, the sine qua non of democracy, but accountability and transparency cannot be done away with. As long as the judiciary is its own appointing authority, doubts will always be cast on the way it functions. The judiciary’s credibility now also hinges on its willingness to reform from within. Rather than the executive, the judiciary can itself take the initiative here. The NJAC could include
the Law Minister who will serve as a link between the government and the judiciary and the Leader of Opposition can be the representative of the legislature in the Commission. The appointments could be made based on consensus.

India is one of the few developing countries in the world that can claim to be a stable and successful democracy. This has been made possible by an ever-vigilant judiciary which has consistently thwarted attempts to undermine the Constitution of India. The people of the land have always reposed their faith in the judiciary, and it is important that it lives up to that faith.

(The writer is an independent researcher)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.