The 5 member constitutional bench
headed by Justice Kehar, by a majority judgement of 4 -1, declared the 99th
constitutional amendment or the NJAC (National Judicial Appointment commission)
Act, passed by Parliament, as ultra vires of the constitution; the bench has posted
a hearing on Nov 3rd on ways to make the
current collegium system better. The
judgement has been panned by certain legal eagles - Abhishek Manu Singhvi -
surprisingly, in his personal capacity & not as spokesperson of the
Congress - & Finance Minister Arun Jaitley – who has been unusually harsh
& called the judgement the “tyranny of the un-elected” forgetting, perhaps,
that he too is an “un-elected” people’s representative & his last attempt at
becoming one ended in a disaster at Amritsar with Capt. Amarinder Singh being his
nemesis.
The learned judges in a 1030 page
judgement have argued that judicial independence is important, especially, in a
country like India, where, as per LK Advani, the threat of a dictatorship is
very real & civil society is not strong enough. The presence of the law minister &
2 nominated members – appointed by a committee consisting of the PM, Leader of
the opposition & the Chief Justice – would constitute political involvement
in a judicial process & appointees may feel gratified to politicians, they
argue. The possibility of supersession of
judges “if not fit” – as worded in the Act, perhaps, was seen as another affront
on the judiciary, whose independence the learned bench, rightly, are keen to
protect.
Brief History
The first judges case of 1982
declared executive primacy with the President being the “Appointing Authority”
& the Chief Justice the “Consultee” - interpreting “consultation not to mean
concurrence”, while the second Judge’s case in 1993 declared the Chief Justice the
"Appointing Authority" and the President a ‘Consultee’ - interpreting “consultation
as consent” - while in the third Judge’s case, the courts interpreted the Chief
Justice to mean a "collegium" of Judges. Justice Kurien Joseph - part of the bench that
heard the 4th Judges case - has argued that had the bench that heard
the 1st Judges case not ignored Samsher Singh’s judgement of 1974, the
need for the subsequent “Judges cases” would not have arisen.
Rajeev Dhawan in an article http://www.dailyo.in/politics/njac-sc-judges-justice-kehar-judicial-appointments-constitution-collegium-emergency/story/1/6860.html
has argued that no central regime in India liked an independent judiciary; while
Nehru believed that the Judiciary was anti- agrarian reforms, Indira believed in a “committed
judiciary”and Law Ministers Shiv Shankar & Bharadwaj insisted on their
choices – all leading, unfortunately, to many great High Court judges being excluded from the
Supreme Court. The uncertainty & unpredictability of judicial appointments
of the 1980’s forced the judiciary to seek a more authoritative role vide the 2nd
Judges case & a “political farce” of trying to prevent Chief Justice Punchi
from making appointments - a view shared by fellow judges - led to the creation of a collegium in 1998. While many exalted at the judiciary trying to set itself free from the Executive, the rigid collegium system that emerged had its inherent flaws. Rajeev says “Justice Kripal ensured that his
Delhi colleagues were disproportionately represented in the Supreme Court.
Justice Khare influenced Allahabad appointments on a caste (kayastha) basis.
Orissa judges, Pattnaik and Passayat, conspired to delay a distinguished
judges' appointment.”
These flaws led to the new debate on the “Collegium
vs. the Commission” & that forms the genesis of the NJAC.
Singhvi’s Arguments: Article published in TOI
Singhvi contends that “judicial
procreation” achieved through the creation of a “collegium” by the 2nd
Judges case in 1993, was a “naked usurpation of legislative power” conferred by
the constitution vide article 124 – for the appointment of the Supreme Court
judges - & article 217 – for the appointment of High Court judges. Neither the
constituent assembly debates nor the constitution - which states that
appointment shall be made by the “president after consultation with the Chief
Justice of India” approve of such a move he adds.
He unwittingly concedes the appointment
of “indifferent sometimes downright unacceptable judges” during 1980-90 led to
the judicial intervention in 1993. He argues that since “government in
consultation with judiciary” model prevailed between 1950 – 1993 & the “collegium”
model during 1993 till date & each of these models had their share of controversies,
it would have been prudent for the new model proposed by the NJAC act to be
been given a chance to run for a reasonable tenure before arriving at a
definitive conclusion, a prospect which, unfortunately, this judgement has nullified. The “incestuous,
opaque, cloistered style, inbreeding entirely amongst the judicial/legal family”
achieved by the collegium system would have been remedied through “broad-basing,
the enlargement of the selection process, the inclusion of diversity in
thought, philosophy and approach.” He contends that what the NJAC judgement has
treated as its “biggest vice” is in believing in the “infallibility of judges”
Arun Jaitley’s Arguments: Facebook Post
Jaitley & Singhvi concur in
their views although the parties they represent differ.
Jaitley’s says “The judgement has upheld the primacy of one
basic structure - independence of judiciary - but diminished five other basic
structures of the Constitution, namely, Parliamentary democracy, an elected Government,
the Council of Ministers, an elected Prime Minister and the elected Leader of
the Opposition.” He argues that “The Indian democracy cannot be a tyranny of
the unelected and if the elected are undermined, democracy itself would be in
danger” & cites the continuing credibility of institutions like the Election
Commission and the CAG, though appointed by elected Governments.
On the perils of re-imposition of
emergency, Jaitley avers that it was politicians like him who went to jail during the emergency imposed in 1975, when
the Supreme Court caved in. Likewise, while the Delhi High Court’s judgement on
alternate sexuality was lauded by people like him it was the Supreme Court that
overturned the judgement. Therefore the Supreme Court’s belief its own
infallibility is belied by history he avers; and now the
4th Judges case declares ‘Exclusivity’ of the Chief Justice in the
matter of appointment excluding the role of the President almost entirely.Finally he argues that having struck down the 99th
constitutional amendment, the court decided to re legislate the repealed
provisions of article 124 & 217 & called for a hearing on Nov 3rd
on the collegium system, thereby, encroaching into the legislative domain.
Justice
Lodha’s Contra view: Article published in the Hindu
Justice Lodha while respecting the arguments of legal eagles, disagrees with them & argues that
just as the supremacy of the legislature over the executive is borne out by the
council of Ministers being accountable to Parliament, “Judicial review” of laws
passed by parliament is a role assigned to the Judiciary, by the constitution, to maintain rule of
law. He quotes Alexander Hamilton, one
of the framers of American Constitution, “where the will of the legislature
declared in the statutes is in opposition to the Constitution, the judges ought
to be governed by the latter, rather than former.” He wonders: “when we are
one of the very few countries where actions of the political executive in
diverse fields — ranging from violation of human rights to wrongful
distribution of natural resources and wide range of issues which have huge
political ramifications — are brought before the superior judiciary in the
public interest litigation, can judges who are appointed with the direct say of
the government be relied upon to deliver neutral and high-quality decisions in
such matters”.
He passionately argues that the power of veto
conferred on any 2 members of the 6 member committee for the appointment of
judges challenged judicial independence & had "judicial primacy" been
maintained the judgement could have been different. He urges that the judgement
should not be seen as the judiciary flexing its muscles but performing its constitutional
mandate. The executive & the judiciary should work towards making
appointments "diverse, fair & transparent" he argues. “Appoint good judges; the
rest will follow“ he concludes
Solution
The lone dissenting judgement of
Justice Chelameswar provides some starting points for a reconciliation & probable solution. “Proceedings of the collegium
were absolutely opaque and inaccessible both to public and history, barring
occasional leaks." he laments & urges for “transparency”. He alludes to cases where
the apex court collegium "retraced its steps" after rejecting
recommendations suggested by the High Court collegium, giving scope for a great
deal of "speculation"; going forward such actions should be avoided. He says that “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 good for the people of
this country”; there is an inherent appeal for “accountability”. He also finds illogical &
calls its a "doctrinal heresy", the govt. being totally excluded from the selection &
appointment process.
Executive exclusion is here to stay considering the tonality of the judgement. The govt. decision to accept the judgement & not go for an appeal could be because of the breakdown in relations between the Congress –
the principal opposition - & the ruling BJP & thereby the lack of a united Parliamentary voice; the attempt by the former to embarrass
the latter perhaps, forced the govt. to accept the judgement. Making the
collegium system better appears to be the only solution to end this logjam. Perhaps,
that is the best solution too during the current troubled times.
