The independence and impartiality of the judiciary are not private rights of judges; they are rights of citizens.
Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves, and in their decisions. On Friday, in a landmark judgment of 1,030 pages, a five-judge bench of the Supreme Court struck down the 99th constitutional amendment and the National Judicial Appointment Commission (NJAC) Act. This is a big jolt not only for the Narendra Modi government but also for the entire political class as there was near unanimity on this issue in Parliament.
The court held that the NJAC does not provide adequate representation to judges and primacy to the judiciary. This does not go against the ‘will of the people’. Some may term ‘judicial review’ as anti-democratic but then it is all about testing vires on the basis of the Constitution. The decision is the victory of constitutionalism over majoritarianism.
No one can disagree with the apex court on the independence of the judiciary being the basic structure of the Constitution but then it is not an end in itself. In fact it is rather an instrumental value defined by the purposes it serves. Judges must be independent of the executive, senior judges and in their ideology.
By upholding the collegium system, the court has favoured the ‘independence model’ of the appointment of judges where the judiciary itself appoints judges and it frees them from the political goals and aspirations of other branches of government. However, there are pitfalls in this system. Though there is ‘external’ independence; ‘internal’ independence of the judges is lost in a hierarchal order.
Moreover this system does put a question mark on true federalism which has been the hall mark of the Indian judiciary. High court judges are no more fully independent. Since the appointments are in the hands of the five senior-most judges of the apex court, the incentive for dissent in the high court has been lost.
Due to the near absence of transparency, accountability too has been a casualty in some of their decisions. The decisions of the collegium at times are as unpredictable as the English weather. The bench has done the right thing in inviting suggestions for the improvement of the collegium system in a fresh hearing starting November 3. It has itself favoured ‘glasnost’ and ‘perestroika’ in the collegium system.
Politicians have been criticising appointments by the collegium but then all other appointments are made by the political class only. Do they appoint ministers, governors, secretaries, vice-chancellors, directors and others on merit? The level of our political leaders during the last two decades has really gone down and it would not be correct to give them any say in judicial appointments.
If the government gets a role, judges would be appointed on petty political considerations. The judicial appointment system must be, and must be seen to be, independent of the government. But it must also be transparent and accountable, and must inspire public confidence. One hopes that the court would be able to create such a system.
Faizan Mustafa is the vice-chancellor of NALSAR University of Law, Hyderabad. The views expressed are personal.