Open Forum

New Delhi, 20 October 2015

SC No To NJCA

JUDICIAL IMPARTIALITY INTACT?

By Dr S Saraswathi

Former Director, ICSSR, New Delhi

The striking down of the National Judicial Appointments Commission Act 2014 by the Supreme Court in a majority opinion describing it as unconstitutional is a setback not only to the present NDA Government, which piloted the bill in Parliament and which also tried a similar legislation in 2003, but to all the supporters of this enactment not excluding the Congress, which originally introduced a Bill.

As such, this episode exposes the existence of conflict between two branches of the government – the Executive whichever party is in power, and the Judiciary supposed to remain aloof from politics. Political parties sometimes exhibit admirable unanimity when questions of power, privileges, and status of political personnel are to be safeguarded and promoted.

The principal argument for the verdict against the NJAC is that it infringes on the independence of the judiciary, which is a basic feature of the Constitution and cannot be touched. The Act, unanimously passed by Parliament, is the 99^th Constitution Amendment Act seeking to replace the Collegium System for appointment of judges in the higher judiciary with a Judicial Commission in which the government, that is, the Executive, would have a prominent place and a significant role.

The Commission, according to this invalidated Act, was to be constituted with six members – the Chief Justice of India, two senior-most judges of the Supreme Court, two “eminent persons” and the Union Law Minister. The two eminent persons are to be selected by a group consisting of the Prime Minister, the CJI, and the Leader of Opposition.

The judgement held that the presence of the Law Minister in the Commission and inclusion of the PM and the LoP in the group formed for selection of two “eminent persons” would constitute political involvement in judicial appointments.   

However, Union Finance Minister Arun Jaitley has rubbished the majority opinion tweeting in his personal capacity that it had an “erroneous logic.” While the judgment has upheld the primacy of one basic structure, the independence of judiciary, it has diminished five other basic structures of the Constitution, namely, parliamentary democracy, an elected government, the council of ministers, an elected PM and the LoP, he noted adding that the SC opinion is final.  It is not infallible. 

Be that as it may, the Collegium stays. Recall this system restored by this judgement was introduced in 1993 by the Constitution Bench under Justice J S Verma. It established the supremacy of the judiciary in making appointments and made the Chief Justice of India the final authority in the matter. By this, it put an end to naked interference of the Executive possible and practicable in appointments and transfers of judges in the 1970s and 1980s and imposition of the  notion of  “committed judiciary” – committed to serve the Executive rather than the  dictates of law. 

The verdict in the Keshavanand Bharti case which categorically declared that Parliament cannot alter the basic structure of the Constitution was indeed a rude shock to the then government. It led to some drastic steps by the Executive affecting even the Judiciary.  The Collegium System was supposed to rule out the possibility of mass transfers at the will of the Executive and appointment of establishment candidates in the Judiciary.

Under the Constitution, the CJI and other judges of the SC are to be appointed by the President of India. The CJ must be consulted in the appointment of other judges. They could be removed only by an order of the President issued according to the prescribed procedure for impeachment in Parliament.

Judges of the High Court other than the CJ were appointed by the President after consultation with the CJI and the Governor of the State, and the CJ of the concerned high court. The procedure laid down for removal of judges of a High Court and Supreme Court was similar.

The right to be consulted does not bestow the power to decide appointments to the Judiciary. Therefore, judges were virtually appointed by the government – a system open to criticism by the protagonists of separation of powers. The system had the potential to politicize appointments and transfers.

Judiciary being the guardian of the Constitution and its principles, the method of selection and appointment of judges seems vital for upholding the letter and spirit of the Constitution. But, judicial interpretation of law, and the responsibility of the Judiciary to uphold law without fear or favour entrust a vital responsibility on the judges to remain independent and impartial whatever be the mode of appointment.     

Judges in any society under any form of government are treated with utmost respect. Judicial impartiality was counted as the foremost quality of a good ruler even in those days when separation of power was not known.

Modern democratic constitutions are based on the maxim of separation of powers propounded by Montesquie. This doctrine demarcates the sphere of the law making body (parliament), law enforcing authority (the executive government), and law interpreting and judging body (judiciary).

However, separation of powers cannot be total and completely isolate the three branches of governance from one another as these have to support democracy jointly as its main pillars. Judges cannot be elected. Nor can they be selected by their own clan excluding representatives from other branches.

Separation of powers lies in the quality of performance and not in the mode of appointments. Decades ago, there were some genuine apprehensions of political interference in the judiciary. Today, the problem is coupled with apprehensions of judicial block to democratic political decisions. A way out must be found without widening the wedge between the two branches of government.

The Collegium emerged from the principle of judicial independence established by the SC in a series of cases known as “three judges’ cases”. In the first, appointment of judges was entrusted with the Executive and kept secret and confidential. The Constitution introduced the provision for consultation. It didn’t guarantee a clean system or ensure flawless appointments. There was scope for corruption and nepotism. In the second case, the appointment of judges gave primacy to the judiciary with the CJI as the head.

The third case introduced the Collegium System with the CJI as the head and with a   group of consultants comprising two senior-most judges of the Supreme Court. For selection of judges of the High Courts, the Collegium comprised the CJI and four senior-most judges which were to review recommendations made by a similar Collegium in High Courts.

The NJAC is not a novel Indian experiment. Such a commission as an independent body has been constituted in Britain in 2006 to strengthen the independence of the Judiciary.  The JAC (Judicial Appointments Commission) is an executive, non-departmental public body of members drawn from the judiciary, legal profession, non-legally qualified judicial office-holders, and the public. In most countries, the Executive retains the power of appointing judges with all its drawbacks and with strong public opinion favouring an alternative system.

The country has enough experience to decide the matter of judicial appointments without reference to foreign models. The apex court has admitted the need to make changes in the Collegium System. After all, the utility of any arrangement depends on the intentions of persons executing the arrangement. There can be no foolproof arrangement. The best features of the Collegium System and that of NJAC should be combined to make a new system.  --- INFA 

(Copyright, India News and Feature Alliance)