The Supreme Court has given an unambiguous signal that independence of judiciary cannot be compromised.
The Supreme Court on October 23, finally decided to scrap the amendment passed unanimously in both the Houses of Parliament to set up the National Judicial Appointment Commission (NJAC) for selection of judges in the higher judiciary on the ground that it violates the basic structure of Constitution ie independence of judiciary. The decision was historic not only from the point of view of independence and primacy of judiciary which are and should be paramount but also because after 35 years, a constitutional amendment passed by Parliament, was nullified by the apex court.
Ever since the NJAC was notified on April 13 with the objective to replace the collegium system of appointing judges, it has been marred with controversy. Despite passing of the Bill unanimously in both Houses of Parliament, the government failed to deliver and the failure was to the extent that they could not take the Chief Justice on board for selection of eminent persons who will select the judges. The judiciary, on their side, was not comfortable with the NJAC Act and it was quiet evident when the Chief Justice wrote to the prime minister in April.
By that time, the government had messed up the issue which could have otherwise handled in a better manner. A sense of uncertainty was created by the government. In the standoff between the executive and the judiciary, justice was the casualty. Vacancies were not filled up and there was huge pendency of cases.
No fresh selection or transfer of judges were possible in higher judiciary as the collegium system was disbanded and the NJAC was nowhere close to reality. 397 vacancies and 45 lakh cases were pending only in the high courts, as in June, 2015. Ultimately, people suffered so also the image of the government and the Judiciary signifying “bure din” for judiciary and people.
We need to see the entire episode in the historical context of the system of appointment of judges and erosion of institutional autonomy under the present political regime. The 20-year-old collegium system of appointing judges by judges, where executive has no say at all, has many inherent problems. The system lacks in terms of transparency, objectivity and accountability which are pillars of justice delivery mechanism.
Appointments are often delayed on subjective considerations overlooking facts of the matter to give benefits to vested interests. Judicial appointments under collegium system are often guided by patron-client relationship, resulting in exclusion of the deserving ones. Even the apex court had admitted after striking down the NJAC Act that all is not well in judiciary.
It was in this context that the need for an alternative was felt and the NJAC was conceptualised with the hope and conviction that it will address the ills plaguing the Indian judiciary owing to the collegiums system.
By scrapping the constitutional amendment, the apex court has given an unambiguous signal that independence of judiciary cannot be compromised even for the sake of reform. Any reform that would be done would be done by the judiciary itself. By rejecting the spirit of the Act, the Supreme Court did not accept the plea of the attorney-general to refer the matter to a larger bench.
The reference to the present political executive in the judgment speaks a lot. Judiciary was apprehensive of the present regime for the threat of subversion of institutional autonomy is a reality now. The beginning was made in the Gopal Subramaniam appointment case. It is also the same government which took exception to the Supreme Court verdict charging yoga guru Baba Ramdev of “contributory neglect” that led to the police intervention at the Ramlila Maidan.
The statement of the prime minister that judges fear five star activists added to the discomfort of the judiciary. In this context, the anxiety was genuine that if government gets a role in appointment of judges, then the appointment may be on petty political considerations. The NJAC was perceived as an intention as part of a larger design for domination of the political executive over institutional autonomy. It could see emergence of a pattern where an assertive executive is adamant to put the judiciary through diluting water. Had there been no atmosphere of political attempts to curb institutional autonomy, there was possibility of a different view by the judiciary.
Parliament is supreme so far as legislation is concerned. At the same time, Supreme Court is the exclusive and final interpreter of all provisions of the Constitution. Public confidence in an impartial judiciary is a necessary prerequisite for a strong and independent judiciary and smooth functioning of a democratic order of governance. It is the last resort for all Indian citizens. Now, a final decision has been delivered, any adventurous attempt will only damage the institution further.
Judicial review of the constitutional amendment should not been seen as an attack on sovereignty of Parliament. Parliament should humbly accept the interpretation of their will by the apex court. At the same time, the judiciary should also show the humility and self-introspect and accept its own systemic faults. Judiciary should not averse to inner voices for reform. Now, the responsibility is on judiciary to establish a system that would address the concerns that necessitated setting up of the judicial commission without compromising its supremacy and independence.
Judges are believed to be beholders of dharma, therefore, they should rise to the occasion and restore the faith of the common man on judiciary. Transparency and accountability should not only be ensured but should also appear to be ensured from outside.