NOVEMBER 04, 2015

By Sudipto Banerjee

ARTICLE 50 of the Constitution which says that "the State shall take steps to separate the judiciary from the executive....." has witnessed stiff face-off between these two titans i.e. the Judiciary and the Executive. The NJAC Judgment or in fact the 4th judges case, which was delivered few days back clearly stands testimony to this long tussle. Yet again, the Supreme Court has ragingly re-established the "exclusive supremacy" of the Collegium in appointment of judges. Yet again, the basic structure doctrine devised during the Keshwanand Bharati case has been intelligently applied by the Supreme Court to water down the attempts of the executive to barge into its long protected exclusive domain. Although there is a huge debate and brouhaha post verdict almost performing an autopsy of the judgment, it is difficult to believe that some experts really expected the verdict in favour of the Executive.

The issue of primacy of judiciary in appointment of judges was settled way back in 1974 in the Shamsher Singh case delivered by seven judges Bench which was again upheld in Sankalchand Himatlal case. The crux of these decisions was that the Chief Justice of India (CJI) would reserve the last word on the issue of appointment of judges, and this power cannot be usurped by the executive. This position was again confirmed in the third judges case which finally institutionalized the present Collegium structure. Therefore, keeping in view this constant stand of supremacy which Supreme Court does not want to part or share with the Executive, it is difficult to share the astonishment or disappointment displayed by many at the latest NJAC Judgment.

While one may feel intimidated by looking at the 1030 pages of the mammoth judgment, but the bone of contention with the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 was that the National Judicial Appointment Commission (NJAC) provided a system of veto powers with non judicial members (described as eminent persons as mentioned in the Constitutional amendment) and the executive i.e., the Union Law Minister to block a candidature nominated by the three judges members. It must be noted here that although the same veto powers subsisted with the three judges, but sharing of this exclusive power did not go down well at all with the Apex Court. This arrangement was found as a direct attempt to alter the basic structure of the Constitution, in other words, a clear attempt to scuttle the "final say of the CJI" in appointment of judges. Further, there existed several other expressions in the Constitutional amendment which were found by the Supreme Court as open-ended and vulnerable to convenient interpretation by the executive which could result in "committed judiciary". In a nutshell, the presumption of future possibility of abuse of power by the executive under the NJAC was the basic ground to render it unconstitutional.

Some say that the verdict has protected the Constitution, while the other extreme criticizes it as an unconstitutional judgment. So in the midst of these two extreme schools of thoughts, where do we stand now? But before this aspect can be explored, one must first understand the background of this supremacy of the judiciary in appointment of judges.

Supremacy of the judiciary is a convention obviously not mentioned anywhere in the Constitution. So then, can we say this convention constitutes a basic structure of the Constitution? This question has already been debated and answered in the past few decades in overdose of legal verbose and legalistic reasoning. However, if deeper introspected one would find that it is not mentioned in the Constitution, but it finds basis from the reality of making a choice between the two i.e., judiciary and executive. To elaborate slightly more on this, the expression used in Article 124 & 217 of the Constitution is "the President shall appoint judges in consultation with the CJI", but consultation has been creatively interpreted by the Apex Court as "concurrence". This interpretation has faced both appreciation and criticism from different quarters, but the background to this over-stretching of Constitution dates back to the 1970's when the executive dictatorship was at its worst, which directly and substantially impinged the independence of the judiciary.

Now the question is - Is our civil society strong enough to curtail the political excesses? Last year, the NDA Government blocked the appointment of Mr. Gopal Subramaniam, a man of great repute and competence. The possible face off between the judiciary and executive was averted, when Mr. Subramaniam withdrew his candidature. And this is not just about the appointment procedure but the possible aftermath due to a possibility of reciprocity by the appointed judges, especially, when the executive is a party to most of the crucial litigations affecting this nation.

At any given point of time in the Indian scenario, the requirement of independence of judiciary remains beyond any debate. One may argue that political executives appoint judges in many countries, but it has to be understood that blindly importing and transplanting any such system would be undesirable, in the background of extreme decadence of our political masters. One may resort to another argument that Constitution authorizes appointment of constitutional positions like CVC, CAG, CEC, etc. by the executive and these bodies have more or less functioned effectively in the past. Therefore, why per-se presence of executive in the appointment process of judges be seen as compromising independence of judiciary? To some extent, this argument may be true but one cannot deny the fact that this presumption reflects the huge trust deficit on the executive for its past legacy. Secondly, this argument cannot be squarely applied to the judiciary, which has the uncomfortable duty to settle disputes and deliver judgments in issues like Coal block allocation scam, Commonwealth Games scam, 2G scam, striking down Section 8(4) of the Representation of the People Act, 1951, the highly contentious Black Money PIL, and so on and so forth.

But unfortunately, even the practice of supremacy in judicial appointments has yielded several ugly chapters either not acknowledged or less talked about. The present situation is such that independence of Indian judiciary has almost become synonymous with opaqueness and it has been justified in one or the other way. Was this the intention of our Constitution makers when they wanted separation of judiciary and the executive ? One may argue that what is wrong with the supremacy vested with the judiciary, if it protects its independence. Well, it goes without saying that concentration of powers inevitably leads to rot and corruption. But unfortunately the Indian judiciary is still in a state of complete denial that the argument of committed judiciary and independence is often used as a weapon to keep them shielded from transparency and most importantly public accountability. Isn't appointment of a judge in the nature of public employment as contemplated in Article 16 of the Constitution? In my understanding, the answer is 'yes'. Further, when the Right to Information Act, 2006 is already applicable to the judiciary, yet it is hardly implemented in its true essence. Obviously, the executive consciously goes mute over this issue, otherwise, even the political parties may have to face the brunt of the RTI Act. The fate of the lapsed Judicial Standards and Accountability Bill, 2010 also looks quite grim. Would it ever see the light of the day?

The creator of Collegium system Justice J.S.Verma went on record to admit that he never thought the Collegium system would be twisted and distorted in the manner it functions presently. The present structure has developed glaring cracks and has seen several incompetent persons getting elevated, undue irrational transfers in High Courts, the "Uncle Judges syndrome" and so on and so forth. Justice Chelameswar while writing his dissenting opinion in the NJAC Judgment referred to Justice Ms. Ruma Pal's speech that "Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and lobbying within the system." May be the quantum of public availability of empirical evidence of corruption within the judiciary is lesser than the executive - but does it grant them an infallible status or justify their self imposed righteousness?

The verdict - whether good or bad is here to stay which means NJAC is history now. So then, where do we go from here? In my view, the NJAC Judgment should not be viewed as yet another victory of the judiciary over the attempt of the executive to trample over the former's exclusive right. Rather, this must be treated as a flash point which must compel the judiciary to acknowledge some of the flaws in the present system.

The secretive proceedings of five members judges must give way to wider participation and clarity. We already have had enough long drawn debates in the past trying to decipher the actual intention of the Constitution makers. But what is far more important is to look right into the present needs of our society and act. This is only possible if we truly believe that our Constitution is organic and dynamic. The Former Additional Solicitor General Mr. C.S. Vaidyanathan has rightly suggested a structure of multi-level filtration process which would consist of commission at the level of each High Court. Further, there would one permanent commission representing Northern, Southern, Eastern and Western region respectively. And finally, a permanent commission functioning at the national level. Additionally, in my view, the detailed reasons for appointment and rejection of any judge should be thrown open to the public at large - complete disclosure should be a rule, and not an exception. Another important issue is the financial autonomy of the judiciary.

The crux of the matter is that there is no dearth of concrete suggestions and measures of reforms which needs to be implemented with due checks and balances. However, this is possible only if the judiciary overcomes its self proclaimed righteousness coupled with the presumption that any wider participative process in the appointment of judges would inevitably dilute its the independence. At the same time, the executive instead of getting bogged down by the verdict and withdrawing from the present situation should form a partnership with the judiciary because without their support and resources, any fundamental change is not feasible. To sum up, a common citizen of this country is neither interested in this clash of two titans nor in its outcome. But, a common citizen definitely expects an impartial and transparent judiciary which would help in protecting his or her rights. Change is a very painful process, especially, when it has to come from within. This is what our judiciary is experiencing right now. All eyes are glued on the outcome of the post decisional hearing scheduled on November 3rd, 2015. With the NJAC gone, let's hope we also manage to move past the Collegium structure, so we can step out of this vicious cycle of selecting between the two evils.

End notes:

Supreme Court Advocates On Record Association & Another Vs. Union of India, 2015-TIOL-257-SC-MISC-CB. (referred hereinabove as "NJAC Judgment")

Kesavananda Bharati Sripadagalvaru and Ors. Vs. State of Kerala and Anr, AIR 1973 SC 1461.

Shamsher Singh & Anr Vs. State Of Punjab, 1974 AIR 2192.

Union Of India Vs. Sankal Chand Himatlal Sheth & Ors, 1977 AIR 2328.

Supreme Court Advocates-on-Record Association and another Vs. Union of India, Writ Petition (civil) 1303 of 1987.

In re: Presidential Reference, AIR 1999 SC 1.

Justice P D Dinakaran Vs. Honble Judges Inquiry Committee, 2011-TIOL-65-SC-MISC; Shanti Bhushan & Anr. Vs. Union of India & Anr. 2008-TIOL-236-SC-MISC.

Supra note 1 at para 106.

C.S.Vaidyanathan, Measures for judicial reform, The Hindu, October 22, 2015.