The passage of the Constitution (121st Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014, was a momentous occasion for several reasons. They deal with the country’s most powerful organ, the judiciary (which was the first to assert the right to even invalidate a constitutional amendment), an institution more powerful than any of its counterparts in the world. The Parliament passed both laws in the last three days of the Budget session with almost 100% support, an unprecedented show of solidarity in an era where ordinary statutes face fractured mandates. So belittling this initiative would amount to negating democracy itself, since these votes, although indirectly, represent the voice of the citizens.
The Indian judiciary, the pride of country and the envy of others, is the bulwark of freedom and justice and provides a healing touch and objectivity. It is one of the vital reasons why India, one of the many countries freed from the clutches of colonial powers between the 1930s and 60s, remains the only vibrant democracy in that group. There are enough countries in Asia where constitutionalism did not flourish and the experience of these countries should be taken as a warning and our good luck must not be taken for granted. The Indian judiciary invented both the basic legal structure of the country as well as the system of public interest litigation and exercises the widest and deepest judicial reviews in this world. It disposes of cases in a week what most judiciaries do in a year.
The history of judicial appointments in India has swung from executive primacy (with a large dose of judicial consultation) before 1993 and thereafter to absolute judicial primacy (with minimal executive role). It is now moving onwards a ‘mixed economy’ ie a proposed judicial commission with an even balance of judicial and non-judicial representatives.
What matters now is how and with what objectivity and fairness we operate the new system. Institutions are only as good as their operators: For example, Justices BK Mukherjea, M Patanjali Sastri, Mohammad Hidayatullah and Vivian Bose were products of executive primacy. An affidavit in the Supreme Court in the 1990s said there were few cases of dispute between the executive and judiciary till 1993. Unfortunately, we managed to debase and devalue both systems and without vigilance and maturity, we may do the same again.
There are several problems in the collegium system: First, its members keep out permanently or delay the appointment of high court colleagues with whom they did not share a good rapport when they served in the same court. Second, indirect SC appointments to HC benches: unless a high court chief justice agrees, his own elevation to the apex court was in jeopardy.
Third, there is a propensity to elevate only those HC judges who are very active on the seminar circuit or were able to host the best functions and look after visiting SC judges efficiently during legal aid, mediation and Lok Adalat initiatives. Fourth, there is an in-built bias in favour of the four chartered high courts: Delhi, Bombay, Calcutta and Madras. Fifth, the prevalence of the ‘you appoint mine else or I will delay/block yours’ syndrome. We have to be aware of these problems because they (especially the fifth one) can recur in the proposed National Judicial Commission (NJC) also.
The members of the NJC must vow not to commit these sins again. The NJC must be backed by a permanent, full-time secretariat and a computerised database. (Those who argue for a full time NJC forget that it can only comprise retired judges or non judges, both nonviable options.) The NJC should evaluate Bar members and high court judges on the merit of judgments they have written, cases they have argued and their linguistic and analytical skills, reputation and integrity. Some limited disclosure under Right to Information Act should also be evolved but not full disclosure because India is full of busybodies with ulterior motives.
Having tasted blood for decades, the judiciary is unlikely to give up its wide powers and challenges to its basic structure are inevitable. Thankfully the single veto, opposed by this author since the beginning of this NJC debate, is now gone. But several vulnerabilities remain. The double veto would require a five-out-of-six consensus, which is very difficult to get. It would have been much better to have a seven-member NJC — a six-member one is an oddity — without any veto. The fact that the existing collegium procedure follows similar veto procedures is not an answer since we are departing, reforming and making constitutional and statutory changes to the old structure.
Second, clauses 5 & 6 of the National Judicial Appointments Commission Bill allows non-appointment of the senior-most judge as chief justice in the Supreme Court or high court if he is not found fit. If the NJC denies such promotion to the senior-most judge after the CJI, either in the Supreme Court or high court, it would constitute supersession and a clear violation of the basic structure since the NJC involves non-judicial members. Third, there is no criteria of appointment specified in either the Constitution or the statute — both leave it to “regulations” to be made by NJC. Is that not likely to be unconstitutional delegation to delegated legislation?
Haste can only lead to waste and also serious constitutional infirmity. I do wish that a much more careful calibrated drafting and discussion on the Bill was undertaken.
Abhishek Singhvi is an MP, jurist, national spokesperson, Congress and a former additional solicitor general
The views expressed by the author are personal.