Saturday, October 17, 2015

The issue of the appointment of judges is more than mere power tussle between overbearing politicians and quibbling jurists. It hinges on the quality of democracy.


The Supreme Court in a 4-1 majority judgment has on Friday held the 99th Constitutional Amendment Act 2014 and the National Judicial Appointments Commission (NJAC) Act 2014 as “unconstitutional and void”. The two measures were intended to take the appointment of judges to the higher judiciary away from the collegium of judges that is now in operation, and hand it over to a separate commission.

This comes as a great blow to the BJP-led NDA government in particular and to the political class in general. The Constitutional amendment as well as NJAC Act were passed unanimously by both Houses. Members of Parliament from all parties were of the unanimous view that the judges had become a law unto themselves, that they were encroaching into the sphere of governance which is the preserve of the executive and legislature. If that was their intention they should have gone about the job differently. But the politicians that they were, they sought the short cut.
They thought that the wings of the judiciary could be suitably clipped if a separate commission was set up to choose judges. The Supreme Court had no difficulty in declaring the changes as unconstitutional. One of the simple reasons cited by the court was that these two laws violate the principle of the independence of judiciary, and this principle was seen as part of the “basic structure” of the Constitution which remains inviolable. At a general and popular level, this is a classic case of confrontation between the different wings of the state, and each side is citing constitutional jurisprudence to defend its position.

This is indeed an important and intricate issue. Popular debate is inevitable and there are going to be exaggerations and distortions of the real questions that are involved in it. One of the views that has been argued is that the elected representatives of the people in Parliament, representing as it were the “will of the people” cannot be overruled by an “un-elected judiciary”. The court and its supporters have an equally important argument to offer: Parliament might represent the will of the people, but it cannot make “unconstitutional” laws.

The real motive behind the amendment with regard to the appointment of changes is the clear perception that the collegium system, which included the Chief Justice of India and five senior judges in the Supreme Court in the case of appointment of judges to the apex court were indulging in favouritism and nepotism, and that it is even leading to corrupt practices. The politicians of course are in no position to prove their charges though they are seen to be widely prevalent. The only provision available in the Constitution to penalise corrupt judges is to go through the tortuous process of impeachment in Parliament. There is also the unstated view that ever since the emergence of the collegium system, the moral and judicial calibre of the judges has deteriorated. The politicians have created the Judicial Standards and Accountability Bill to deal with this, which is yet to be passed by Parliament.

The confrontation between the legislature and executive on the one hand, and the higher judiciary, that is the Supreme Court and the high courts, on the other should indeed be a matter of great concern. It should generate a thoughtful debate on all sides. Platitudes about independence of judiciary are not of much use in this context. What needs to be worked out is the way to choose the best men and women, with learning of law and wisdom, to be the judges in the land. It is no easy matter. It seems that politicians, as is their wont, are only muddying the waters.

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