The recent discord in India between the Judiciary and the Executive indicates impending turbulence in the extant regime of judicial appointments. Often subject to brickbats, Collegium meetings to appoint judges are confidential and reports are published only after final resolution. Can we expect the tussle to propel reforms?
The Judiciary is one of the organs of India’s government, but is yet given special treatment to keep confidentiality of proceedings intact. On the other hand, the business of the Legislature, which also entails sensitive issues of national security, is placed in the public domain. Such uneven interpretations and practices suggest that the Judiciary deems itself above the government’s other two organs on this matter.
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It would be unjust to mire the competence and integrity of judges who have come from the collegium system so far. However, there are instances where a need for accountability has been acutely felt. Back in the 1980s, a Supreme Court (SC) judge hailed as India’s pioneer of judicial activism adjourned a contempt petition filed by an activist 78 times with no reasoning. The matter concerned human rights, which form the very bedrock of the Constitution, and it’s only fair to seek “detailed reasons”. In the early 2000s, a judge of the Punjab & Haryana high court (HC) was transferred to the Uttarakhand HC. This was after allegations of bribery, but the reason given was “better administration of justice”. In a parallel circumstance, any other government office-holder facing similar allegations would be assigned a punishment posting without duty or arrested. The question that arises is why we have this difference, as both are bound by the Constitution.
Going back in time again, the country saw a second judges’ case reverse the first judges’ case which said the Constitution gave the President of India an option to reject names recommended by the CJI. This gave birth to the collegium system of judicial appointments. The primacy of the CJI’s call on these, as established by the third judges’ case which said the President merely approves the CJI’s recommendation, is what attracts criticism. Note the saying that justice can never be done if someone acts as a judge in his own cause. However, the Indian Judiciary adjudged the first, second, third and fourth judges’ cases where it was a causally affected party itself.
Apart from its opaqueness and apparent inefficiency, the collegium is yet to recommend names for over half the vacancies. This has led to a huge case backlog, with pendency pile estimated at 30 million. The National Judicial Appointments Commission (NJAC) was introduced in August 2014 by the government to overcome these challenges. However, it was declared unconstitutional in the fourth judges’ case.
Was that an interpretation of convenience? While the NJAC as proposed had a few flaws, it was a good attempt to address the issue of accountability in the Judiciary. In contrast, the reasoning put forth by the fourth judges’ case to justify the collegium was flawed. It opined that appointment of judges by the Executive may prejudicially jeopardize decisions where the state is a litigant. However, this assertion falls flat on its face, speaking empirically. Judges in South Africa are appointed by the Judicial Service Commission, which is dominated by the executive and filled with members of the African National Congress (ANC). Yet, the same judiciary convicted Jacob Zuma, the country’s former president who was an ANC member. Another instance is that of the US apex court criticizing Donald Trump’s policies while he was president of the US, where judges are appointed by the president for approval by the Senate. Personal ethics is expected to overcome partiality, irrespective of the institution that appoints personnel.
The fourth judges’ case pronouncement opined that Executive appointments of judges is a foreign practice, not suitable in the Indian context. On the other hand, the ‘basic structure’ doctrine, propounded first by a German academic, was invoked to strike down the NJAC. It was done in the apparent garb of judicial independence with no reference to the irony of the context argument.
Our Constitution has no mention of a “collegium”. The Supreme Court’s actions, however, have resulted in an ‘amended’ Constitution under which the Judiciary has assumed a power that was not conferred. It is a judge-made ‘amendment’ that is against the unalterable basic structure of the Constitution, especially under the separation-of-powers doctrine, which lays down that the Judiciary cannot make laws, only interpret them.
Our Judiciary must recognize that interpreting laws in one’s own favour undermines the rule of law, implies bias and eventually erodes public trust in the system. Most importantly, there is no democratic justice without accountability.
Inertia may result in a desire to maintain the status quo, but it is high time India fixed accountability for the Judiciary. This is backed by a sanction under Schedule III of the Constitution, which deals with the oaths of key functionaries, including judges of constitutional courts. Their oath makes it incumbent upon judges to bear true faith and allegiance to the Constitution of India, which derives its powers from “We the People”.
Our system of checks and balances needs to tighten its grip on the lady holding the scales as well. After all, the Executive, Legislature and Judiciary are equal repositories of constitutional trust, as rightly said by former CJI N.V. Ramana.
It’s perhaps time to let the unknown angel in and let go of the known devil.
Kishlaya Mishra & Trisha Shreyashi are, respectively, an advocate and a law consultant.
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