In the past few days, there has been a striking development which is not of much public interest yet of intellectual interest. The Union Government and the Supreme Court have locked horns on the matter of the appointment of judges in various courts. There is disagreement not only regarding who must be appointed, but also that how the appointments should be made and what parties should have a say in the process. These disagreements have resulted in a position where two branches of the government are questioning the credibility of each other.
The right to fair justice is a fundamental core of human society. Since time immemorial systems have been instituted to make sure that justice is delivered. Judiciary has a very active role in shaping the direction of modern-day democracies. Consider some judgements delivered by the Supreme Court of India in the past few years – Homosexuality, Triple Talaq Law, Shri Ram Janmabhumi verdict, Mobile Spectrum Allocation verdict, Rafale Jet verdict, etc. The Judiciary has influence regarding all aspects of citizens’ lives. Therefore, it is rightfully called the third pillar of the great Indian democracy.
The appointment of judges in India is a very convoluted process in India. The appointments of judges in the subordinate courts are very clear. Subordinate judges are appointed by the governors of the respective states after passing the Judicial Service Examination. Whereas the appointments to Supreme Court and High Courts are made by the President of India based on recommendations of the Collegium. The Collegium is constituted of the Chief Justice of India and four other senior-most judges of the Supreme Court. They take decisions on the matter of judicial appointments to Supreme and High Courts.
Now, there certainly are some problems regarding the Collegium system. First, the collegium system has led to the complete exclusion of the executive from the process of judicial appointments. Second, the collegium system makes the judiciary unaccountable to the people or the representative of the people, the Parliament. This can lead to the wrong choice of the candidate while overlooking the rightful candidate. Third, the collegium system opens a wide door of scope for nepotism and favouritism. Fourth, collegium leads to a non-transparent and opaque form of the judiciary.
Fifth, the principle of checks and balances between the three branches of the government is violated by the collegium system. The collegium system gives immense powers to the judiciary, shortening the scope of checks and posing a risk of misuse. Sixth, the collegium system works on a closed-door mechanism. There is no official secretariat of the system which documents the proceedings. Neither the meetings of the collegium are announced prior, nor the minutes of the discussions of the meetings are taken.
Seventh, it has been observed that the collegium system has been unable to deliver equal representation to all sections of society in the judiciary. Not only there is a lack of representation in the judiciary based on gender, but also based on caste and economic background. Most judges come from rich aristocratic families, or families which have a legacy of judges in every generation. Eighth, the collegium system has been instituted by the Supreme Court itself and has not been mandated by the Constitution of India. Therefore, there are questions regarding the legitimacy of the collegium and whether our forefathers wanted this type of judicial system in an independent India.
It is not that there have not been attempts to improve and uncomplicate the system of judicial appointments. In 2014, the Union government proposed the ninety-ninth amendment to the Constitution instituting a new National Judicial Appointments Commission (NJAC). Under this new system, there was an attempt to make a transparent body. The NJAC was proposed to be constituted of the Chief Justice, two senior-most judges of the Supreme Court, the Union Law Minister, and two eminent persons from the society. But this constitutional amendment was stroked down by the Supreme Court which upheld the collegium system and repealed the amendment with a judgement on 16th of October 2015.
Out of the five judges presiding over the case, four ruled the NJAC unconstitutional. These were CJI J.S. Khehar, Madan Lokur, Adarsh Kumar Goel and Kurian Joseph. Jasti Chelameswar was the only one to uphold the NJAC. Jasti Chelameswar ruled “There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or is good for the people of this country. To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and doctrinal heresy.”
Even Justice Kurian Joseph, who ruled in the favour of the collegium remarked four years later in his book launch event “How to improve the Collegium system…nothing has been done. The only improvement is that resolutions are uploaded…That is why I regret my NJAC judgment. None of the suggestions for the improvement of the Collegium was implemented…I even wrote a letter (in this regard).” He accepted that he regrets his NJAC judgement.
There is no question that the independence of the judiciary is vital to the core of democracy in this country. In no case, the independence of the judiciary can be compromised nor the separation of power can be harmed. But no institution is bigger than the constitution itself. And no constitutional authority can remain unaccountable to the people. Judges appointing judges is as weird as it can be under a democratic setup. There is no parallel to this system in either executive or the legislature. The legislature is accountable to the people and requires re-election every five years. The executive is accountable to people and legislature and is appointed by civil services examination.
Also, it is open to public scrutiny. Judiciary remains the only organ of the government which is neither transparent nor accountable. Nor is it open to public or civil scrutiny. Questioning the judiciary amounts to contempt of court. We have evolved a system where we’ve given judges a god-like status. Partially it is because they are dispensers of justice and guardians of the constitution. But this does not mean that they can mend the constitution in any way they like. Nor it makes them untouchable and immune. All pillars of democracy need to be of the same height, otherwise, the building will collapse. Absolute power corrupts absolutely. That is what is the reality today.
The judiciary is the bedrock of Indian democracy and a beacon of hope for people in times of darkness. The judiciary is an institution that the people look towards with hope. They seek justice, their rights and protection from persecution. That is what the importance of the judiciary is. But we have deteriorated that system, partly because of the colonial legacy, and partly because of our ambitions. Indian judiciary is not a Jagir of a handful of families. It is a people’s institution and should be accountable to the people. It’s time for the judiciary of the people, by the people and for the people.
