The outburst of the Chief Justice of India against the 95 minutes speech from the rampants of Red Fort and the response of the ruling party to the remarks of the Chief Justice has brought the government-judiciary relationship to a new low. The opposition of course has tried to fish in troubled waters. The debate over captive judiciary and independent judiciary has again come to the fore.
The appointment of judges to the higher judiciary has been a bone of contention for decades. After the times of ‘committed judiciary’ ended and when the Central government was weak, the Supreme Court in its bid to maintain it’s supremacy rewrote the law through a 1993 judgment which gave the power of appointments and transfer to the senior-most judges themselves referred to as collegium. Despite the performance of judiciary being better compared to the executive and the legislature, there had been a steady decline of the higher judiciary. Some judges even faced corruption charges. The collegium has to bear the burden of being questioned over quality of some of the judges.
For at least a decade and a half, there have been various attempts to bring in fairness and transparency in the appointment of judges and in bringing a system of accountability. The coalition governments were weak and lacked numbers to push constitutional amendment bills or bring in any wholesome changes to the ‘law written by the Supreme Court’. Though UPA tinkered with the idea of a Judicial Appointments Commission with an accountability mechanism built into it, that only remained a far cry. After Narendra Modi led NDA got a robust majority, the Parliament overturned the collegium system by a constitutional amendment passed overwhelmingly and ratified by most of the State assemblies. The National Judicial Appointments Commission (NJAC) provided primacy to the executive and the Supreme Court struck down the NJAC Act and the 99th amendment to the constitution because it violated the judicial independence, a basic feature of the Constitution.
The Supreme Court accepted the legitimate criticism of the collegium system functioning currently and took upon itself the responsibility of reforming it. After series of directions the Supreme Court directed the government to finalize the Memorandum of Procedure (MoP) in which the government saw a ray of hope to indirectly usurp the power of appointments by back door tactics. It is this MoP that is now the bone of contention. The Supreme Court’s nuanced approach to the appointments is in keeping with the Supreme Court’s mood with regard to the legislature and executive something which has been built over fifty years.
After 1993 it was felt that the final word in the appointment of judges can never be entrusted to coalition governments which are week on numbers as the coalition partners may demand quotas on the benches under threat of withdrawal of support. Strong governments with powerful prime ministers are equally dangerous. Mrs. Gandhi has proved that.
The present government has certainly not taken the judgment kindly. Who should have the last word – the Supreme Court or the Parliament is now the issue. At one function the Chief Justice broke down and the Chief Justice’s response to the Prime Minister’s 15 August address may be a subject matter of debate but no one can disagree that we require more judges and that the government has not been acting with the alacrity the situation deserves.
There can be no two opinions that the collegium system had failed. The failure of collegium system in appointment of judges was also due to lack of in-house accountability mechanism laid down by law. The criticism of the collegium was legitimate but reviving a system of permitting the executive to have the last word is certainly a recipe of bringing in the old order. What the old order can do when the Prime minister with authoritarian tendencies was demonstrated in 1973.
A day after the famous Kesavananda Bharati case, the government superseded three illustrious judges – Justice Shellat, Justice Grover and Justice Hegde making A.N. Ray the Chief Justice of India and the record of Justice A.N. Ray during the dark days between 1975 to 1977 can always be researched, analysed and recorded for posterity. Justice Ray approved mass transfer of Judges of the High Courts who stood up during the emergency. Many in the opposition, then and now who are part of the ruling dispensation were sent to preventive custody without trial. That was possible due to the Justice Ray led Supreme Court reversing judgments of 9 high courts and with the highest court standing with the government and against the citizens. It is irony that the leaders who faced the ire of the government with the Supreme Court standing as a mute spectator are now talking of encroachments into parliamentary area. Arun Jaitley a victim of emergency spoke of judiciary demolishing the parliamentary edifice ‘brick by brick’. But now the boot is on the other foot. They have a brute majority and wish to have that last word. I have grown up with the famous words of Arun Jaitley ringing in my ears ‘that there are some judges who know the law and some who know the law minister’. The Supreme Court rose up to deal with the law minister syndrome and revived the collegium. The collegium failed to leave up to the expectation of the citizens, but under the guise of reforms, the Judicial jewels cannot be permitted to be stolen by the executive.
Looking back at history primacy to the executive is a dangerous move, it is a remedy worse than the malady particularly when the government has huge numbers and Prime Minister shows authoritarian tendencies.
(The writer is practicing
advocate, senior faculty in law and political analyst)
