The judiciary says back off



While quashing the efforts of Parliament to constitute the National Judicial Appointments Committee (NJAC), the Supreme Court (SC) spelt out two things clearly. One, that it does not want to concede the primacy it had in judicial appointments; two, the court admits that the collegium system, which has been the practice since 1993, is faulty. In doing so, the court has decided to continue with the faulty system, though it agreed to explore the possibility of making it more transparent.

The historic judgment of 16 October, delivered with a 4:1 majority, clearly pointed out that the judiciary does not want to be caught in a “web of indebtedness” towards the executive. Justice JS Khehar, the presiding judge of the five member bench, stated that the judiciary can safeguard the rights of citizens only by keeping it insulated and independent from other organs of governance.

There are some who back the court’s claim that it is an attempt to maintain judicial independence, while the sceptics ones ask how can the court quash a law which is not seeking to challenge the basic structure of the Constitution.

The ambiguity within the Constitution about the appointment of judges is a reason for the current stalemate. Article 124 of the Constitution requires the President to consult the Chief Justice of India (CJI) while appointing a judge. Similarly, the President shall consult the chief justices of the high courts and governors before appointing a judge in the high court.

The court evolved the principle of judicial independence through what are generally called ‘three judges cases’. The SP Gupta case in 1981, known as the First Judges case, declared that the primacy of the CJI’s recommendation to the President can be refused for “cogent reasons”. This invariably led to the ascendancy of the executive in judges’ appointments.

However, the judiciary ‘corrected’ this judgment in the Second Judges case. The court restored the primacy of CJI’s recommendation and ruled that appointments are a matter within the judicial family, and therefore the executive cannot have an equal say. The acquisition of power to appoint judges by the SC led some constitutional experts to term it a ‘judicial coup’. However, the five-member bench was not unanimous on the role of the CJI.

What is referred to as the Third Judges case, was in fact a reply to a presidential reference from the then President KR Narayanan. He had sought clarity on the term ‘consultation’ mentioned in Articles 124 and 217 of the Constitution which deal with judges’ appointments. The SC, in reply, stated that the opinion of the CJI would be formed in consultation with the judges of the collegium. The laid-out principle of the system was to ensure that best available talent is brought to the SC.

Critics of the collegium system suspect that its functioning has been mired in secrecy without any checks and balances. They feel the system has failed in its principle to promote the best available talent. “The collegium system was an antidote to whatever was happening on judges’ appointment till then,” former Lok Sabha secretary general and constitutional expert PDT Acharya tells Tehelka. “However, the Supreme Court went to the other extreme. There was no mature consideration of the issues at any stage.”

Acharya says that the Constitution has enough protective measures to ensure an independent judiciary and the fact that a judge can’t be removed by the executive is such a strong protection. “We can’t think of absolute independence of the judiciary. If independence from the executive is what they are seeking, then it is already ensured in the Constitution,” he adds.


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