The Hon’ble Supreme Court’s decision to strike down the controversial National Judicial Appointments Commision (NJAC) has come as a jolt to the government. The much hyped NJAC, was a bill conceived by the erstwhile United Progressive Alliance (UPA). Although the UPA at the time was apparently toying with the idea of holding wider consultation with the legal fraternity as well in order to bring the judiciary on-board, the current National Democratic Alliance (NDA) dispensation after coming to power immediately pushed the bills for replacing the collegium system in an unusually hasty manner. The general argument against the collegium system, where judges of the Supreme Court (SC) and respective High Court’s (HC) appoint judges, was the lack of transparency and opacity of the process. While this criticism is not misplaced or incorrect, the system being brought in to replace the existing collegium system was nothing less than an indirect assault on the independence of higher judiciary. If the government and political class were truly committed to judicial reforms and transparency, they could have sought a reform of the existing collegium system, which even eminent jurists like Mr Fali S Nariman had sought. In fact Mr Nariman, had been openly critical of the collegium system’s lack of transparency and is known to have called out for reforming the system.
However, the blatant ramming through of an ill-conceived bill such as NJAC, which sought to water down the primacy of the judiciary in judicial appointments by having the Law Minister and two other “eminent persons” hold a virtual veto power, made Mr Fariman come out strongly in support of the collegium system vis-a-vis the NJAC. On the other hand, the Attorney General (AG), Mr Mukul Rohatgi, arguing in favour of NJAC on behalf of the government, continued to highlight the unanimity of parliament in passing the two bills seeking to call it the “will of the parliament”, and “will of the people.” While the unanimity in Parliament truly reflects the “will of the parliament”, drawing further conclusions from it to attribute the decisions of elected MPs and MLAs as “will of the people” is an insult of electoral democracy. If this logic were to hold true, it implies that people of India have also been in favour of the government and political class’ unanimous decisions to pass bills which raise the salaries and perks of elected representatives. Indeed, Justice J S Khehar, who headed the constitutional bench hearing the pleas against NJAC, had noted during the course of the arguments made by the AG, that the only other time such unanimity was observed in parliament was when MPs had passed bills to raise their salaries and perks.
Another argument made by the government and political parties against the existing collegium system is that India is the only country in the world where judges appoint judges. This is a flawed argument. One only needs to go back the previous year when the collegium headed by then Chief Justice of India (CJI), Justice R M Lodha had recommended four names for elevation as Supreme Court judges. One of the nominees recommended was Mr Gopal Subramaniam, a former Solicitor General and an eminent lawyer himself. The Modi government had then blocked Mr Subramanian’s nomination on certain grounds while accepting the other 3 recommendations. In fact the collegium system works in a manner that it nominates/recommends certain names after holding wider consultations within, and then forwards them to the government for approval. The government then seeks Central Bureau of Investigation (CBI) and Intelligence Bureau (IB) reports on the nominated candidates and then sends its recommendations to the President for approval. In case of any negative intelligence reports over any candidates, the government sends its remarks back to the collegium to re-consider the recommendation, which the collegium may choose to disregard and re-send back to the government. Mr Gopal Subramaniam’s elevation as a judge was blocked by the Modi led dispensation despite the absence of any negative intelligence reports. The controversy finally ended when Mr Subramaniam himself withdrew his candidature in order to ensure that the other three recommended names did not get blocked owing to a constitutional crisis. The entire episode only reflects the different stages and filtration criteria a candidate has to go through to be appointed as a judge in the Supreme Court. A similar process is followed by the collegiums of respective High Courts who send their recommendations to the SC collegium which then passes on the recommendations to the government after due consideration. While there has been valid criticism over the lack of transparency and opacity with which certain names are recommended or rejected, the process has at least ensured insulation from political interference. There certainly is scope for improving the existing process, which the SC also noted in its judgment striking down the NJAC, when it called for further hearings on November 3 to improve the working of the collegium system. It is important to note the government’s unequivocal opposition to the collegium system in the SC while arguing in favor of the NJAC, irrespective of the final decision of the SC on the NJAC petitions. The AG continuously and firmly argued that the “collegium system was dead and buried and could not be revived” even if the SC struck down the NJAC.  The government’s stand that the system of “judges appointing judges” is not followed in any country across the world including US or any other western countries, very conveniently highlights selective facts to suit its stated position. While the collegium system may not exist anywhere else across the world, the western countries have many other systems and incentives in place to ensure a fair, transparent and independent judiciary. India today ranks amongst the lowest countries in the world on the basis of a judges to people ratio. The salaries provided to judges of the High Court and Supreme Court are measly and do not match up to the standards followed in the western countries. In fact, the very low salaries fixed by the government since decades has stopped many capable and competent legal luminaries from taking up judicial positions. Government’s budgetary allocations to judiciary since years has hovered around 0.5% of total budget. The lack of sufficient recruitments is a fallout of this extremely low expenditure on judiciary. The high pendency and unending dragging of cases is also a result of these sub-standard budgetary allocations, vis-a-vis the judiciary in western countries.
If the government was truly committed to ushering reforms and transparency in the judiciary, it could have demonstrated it beginning to provide higher financial allocations. The government could have further sought improvements in the existing system, something which even judiciary has not been averse to. If the NDA government had done either of this, it could have truly demonstrated its genuine commitment to judicial independence and respect for judiciary. Instead it only chose to follow in the erstwhile regime’s footsteps by ramming through the NJAC legislation without holding wider consultations with the judiciary. This decision demonstrated how a change of regime in an electoral democracy does not necessarily reflect a change of existing systems and processes. The Modi led government instead showed how it was no different from the erstwhile regimes. The NJAC compromised the judiciary’s primacy in judicial appointments by having 3 non-judicial members (the Law Minister, and two “eminent persons” elected by a separate committee comprising the Chief Justice of India, Prime Minister and the Leader of Opposition/Leader of largest opposition party). The only brief for appointing the two “eminent persons” was that they need not be from legal profession or for that matter have any law qualifications at all. In addition, one of the two nominated “eminent persons” had to be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women. The act further stated that any person being considered for appointment as Chief Justice and Judge of High Courts, cannot be appointed, “if any two members of the NJAC do not agree to the proposal”. This effectively provided a veto power to the non-judicial members of the Commission, thereby striking at the heart of judicial independence.
Critics of the collegium system may rightly argue that ascribing a negative bias or for that matter an ulterior motive in appointing “committed judges” to non-judicial members of the commission is incorrect and unjust. One however only needs to look at all the other institutions of our country which are either led by government/political appointees or by the government itself. The CBI has been a caged parrot since ages. The near toothless police forces across states face relentless political interference by way of appointments as well as the uncertainty of regular transfer to no-go zones in cases where upright officers dare to follow the rule book at the risk of upsetting the ministers. The word bureaucracy unfortunately has attained a certain negative connotation since ages. Seldom have the civil services officers been able to stand up to the ruling dispensation and ensure the right decisions have been taken. Appointments made to the CVC, CIC, IB as well as other cultural and scientific institutions are equally at the mercy of the government of the day. A majority of our country’s sports associations are run by politicians belonging either to the ruling party of the opposition party. The mess the BCCI today finds itself in is no less due to the involvement of political persons from across the political spectrum. An institution of repute such as the Film and Television Institute of India (FTII) too hasn’t been spared of political interference. The ugly confrontation between FTII students and government over appointment of a relatively unknown Gajendra Chauhan (whose claim to fame has been a prominent role in tele-serial Mahabharata and his association with the Modi led ruling BJP) continues till date. If the AG’s argument of “will of the people” were to be applied to the decision of appointing Mr Chauhan as FTII Chairman, it falls flat on its face as the primary stakeholders of the institute, the students themselves, have continued to oppose his appointment since it was announced in June. The incident clearly reflects that decisions made by the executive, do not necessarily reflect the “will of the people.” In fact if one were to extend this very argument further, the Modi government’s decision to promulgate the ordinance on Land Acquisition Bill recently, very much went against both the “will of the Parliament” and consequently “will of the people”. Conveniently changing sides and arguments to suit its own objectives has been a hallmark of the political class in India and the current NDA government by all standards excels in this.
Congress and BJP led regimes or for that matter other state government’s as well have time and again clashed with the judiciary whenever it has stepped into executive’s domain. Judicial overreach too has at times been unnecessary and needless. Parliament and Judiciary are pillars of democracy which need to co-exist and assist each other. While Parliament derives its legitimacy through elected representatives, this legitimacy does not give it a right to step into judicial domain. Elections alone do not determine “legitimacy” in an electoral democracy. The concept of “judges appointing judges” is not “anti-democratic” just because judges do not face elections. The judges themselves have been a part of the social and legal system and have in come up through the ranks after years of practice. It is true that there have been instances of corruption and transgressions in the judiciary. These need to be stopped and halted by creating appropriate systems of checks and balances. It however does not provide an excuse for executive’s interference in judicial appointments. The 2G scam, coal-gate, Adarsh scam, CWG scam, mining scams of Goa and Karnataka, hundreds of fake encounter cases, Vyapam scam, Saradha scam, and numerous other scams have demonstrated the degrading standards of our political parties. If elected representatives collectively represent the “will of people”, does it mean that these scams were an outcome of “will of the people”? How can these very tainted, yet elected representatives be trusted if they were to decide who could or could not become a judge? The collegium system, despite all its flaws, has ensured an insulation from direct interference by the executive. The SC has rightly accepted the shortcomings of the collegium system and has invited recommendations to further improve its functioning.
If our political parties and government truly respect judicial independence and integrity, they will do well to provide useful suggestions for further improvements to bring in transparency. Unfortunately, the current dispensation has instead expressed its anguish at the SC’s appropriate decision to strike down the draconian NJAC. The current judgment rightfully restores the primacy of judiciary in judicial appointments and has ensured its insulation from external interference. This judgment adds another feather in the SC’s cap in safeguarding the interests of the common man.