Long etched in Indian political and legal history shall remain the dissenting words of justice Jasti Chelameswar in the National Judicial Appointments Commission (NJAC) case. He asked of his brother and sister judges: “We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?”
Almost a decade later, it is introspection hour for the judiciary, and justice Chelameswar’s questions retain their relevance. The Indian experiment with separation of powers has never been one of separating the executive, the legislature, and the judiciary into independent silos, with distinct discharge of their democratic functions, and complete independence. On the contrary, the Indian model has been of checks and balances and holding to account the organs with respect to their pure democratic purposes, in accordance with the rule of law.
The judiciary has painstakingly made clear that the principle of parliamentary sovereignty and absolute independence doesn’t find much credence in our constitutional set-up. The jurisprudence emerging from constitutional courts sees the judiciary often traversing areas of legislation and policy towards constitutional ends. The same judiciary, which finds no discomfort in such travel into the parliamentary domain, struck down the NJAC amendment on purported grounds of parliamentary and executive interference in judicial appointments. Now, the collegium wishes to eat its cake and have it too!
At the outset, it is imperative to examine the collegium system’s success (or the lack thereof). The present system of judges appointing judges has created a regime that is opaque, arbitrary and nepotistic. The fundamental problem with a collegium system stems from the unbridled and absolute power and institutional impunity sought under the guise of independence.
{{/usCountry}}At the outset, it is imperative to examine the collegium system’s success (or the lack thereof). The present system of judges appointing judges has created a regime that is opaque, arbitrary and nepotistic. The fundamental problem with a collegium system stems from the unbridled and absolute power and institutional impunity sought under the guise of independence.
{{/usCountry}}A perusal of collegium resolutions will demonstrate a power of appointment that is exercised with no guidelines, no scheme, no certainty. Each resolution of the collegium presents a new formula for appointments, ex-post facto justifying decisions of appointment.
The collegium offers no consistency on its decision-making matrix, with each and every consideration amenable to changing winds, sometimes the decision is based on seniority, sometimes on representation of high court, sometimes on historical representation of gender, caste and other social indicators and sometimes purely on merit. There is no method to this madness. For each and every case where the collegium states that it was inspired to appoint a judge based on a particular factor, there would be another where the collegium has overlooked that very factor when it did not consider a candidate. If the collegium, as an extra-constitutional body, was fashioned by the Supreme Court to ensure that merit-based appointments are the norm, then it has failed its purpose.
The dismal representation of judges from the district judiciary in the constitutional courts paints a sorry picture of the Indian judiciary. One is constrained to question as to whether the collegium feels the district judiciary suffers from a fatal lack of talent or is the system rigged in favour of judges who are present at Lutyens parties and sundowner cocktails to receive recognition for work. One is also constrained to question the system of judges emerging from judge-families in high courts and subsequently reaching the apex court to step into their father’s/uncle’s shoes.
There is no doubt that the judges of the Supreme Court render invaluable public service. There is also no doubt over their credentials as jurists. But there is doubt as to whether the judges ignored for elevation were ignored merely for the lack of their familial and other connections to the very top. In fact, the question is not what is wrong with the system today or was in the past. The question remains: Can a democracy fathom such a mechanism of extra-constitutional appointments with no transparency or accountability? Do we have to wait for injustice to occur before we fix an undemocratic and feudal system? Is the very purpose of having a representative set-up where there is legitimacy through the people not reason enough? Is stopping unelected and extra-constitutional exercise of power not reason enough?
The NJAC remains one of the few bipartisan efforts to amend the Constitution. Its striking down by the Supreme Court is contrary to the own law settled by the court. Any Act of Parliament receives the benefit of presumption of constitutionality. The presumption is essential in protecting the parliamentary legislative exercise. Parliament, deriving sovereignty from the will of the people, reserves such benefit. The Supreme Court never granted the NJAC this benefit, by interfering before the NJAC had a chance to function, despite it having a balance between judicial and political membership, which itself is a robust checks-and-balances mechanism. The Supreme Court deemed any delegation of the power to appoint the judges of constitutional courts as prima facie unconstitutional and a violation of the basic structure. The haste with which the Act was struck down presumed that the moral and constitutional superiority of a collegium of judges is immune to vice while presuming unethical and gluttonous tendencies of the political membership.
This presumption was historically dismissed by BR Ambedkar, while discussing the model of appointment solely on the basis of the concurrence of the Chief Justice of India (CJI). Ambedkar stated that providing such a power of veto means transferring the power of appointment to the CJI without any limitation, which the Constituent Assembly thought was imprudent to confer on the president.
One apprehends an environment where only judges of a certain jurisprudential bent of mind may find favour with the collegium. Historically, appointments of judges and distribution of work within the roster have been clandestinely done. The current system does little to help matters.
The courts often speak of sunlight being the best disinfectant, but the very fundamental operation of deciding who sits in the constitutional courts remains shrouded in secrecy. The case for the NJAC depends not only on what has happened but also on what may happen when an institution has unbridled, unquestioned, unimpeachable power. To prevent such power from being abused is in and of itself a necessary and sufficient end to aspire to and build into our laws.
Pinky Anand is senior advocate, Supreme Court, and former additional solicitor general. The views expressed are personal