Apex court has dealt a blow to judicial reforms
If the Supreme Court had appreciated that the appointment of judges to the higher judiciary is too important a matter to be left to judges alone, it would not have struck down the National Judicial Appointments Commission Act and the enabling legislation, the 99th Constitutional Amendment Act, deeming them “unconstitutional and void”. The NJAC had been set up to provide a sense of balance in the selection of judges, with representations from the executive, judiciary and outside. It beats reason as to how the collegium system that was sought to be replaced, and which now becomes automatically operative, can be considered more ‘constitutional', given that the Constitution of India does not even provide for it. Indeed, the framers of the Constitution had created a structure wherein the executive along with the apex court would select judges. This was replaced by the collegium system following the Second Judges case in 1993. The crux of the arguments that the four judges out of five on the apex court Bench have given in their ruling on Friday is that the intervention of the political class in the selection will lead to erosion in judicial independence. This is an unfortunate presumption. Merely because judges are selected to the Supreme Court and the High Courts through a process which involves the executive, it cannot be said that they will fail to perform their duties without fear or favour. There is no connection between the two. This contention also pre-judges the integrity of judges. Moreover, there are several instances to demonstrate that judges selected with the involvement of the political class have taken on the executive when the occasion demanded, just as there are examples of judges who came through the collegium system and indulged in unsavoury conduct. Therefore, the issue is not about a system that produces better judges, but whether it's appropriate to keep out the executive in higher judicial appointments in a vibrant democracy such as ours. In no liberal democracy in the world is the political class shut out from such a process. In the present case, the NJAC as well as the 99th Constitutional Amendment Act were adopted not just by members of the ruling combine in Parliament, but also by parliamentarians cutting across party lines. In addition, 20 State Assemblies had ratified the amendment. In one stroke, the Supreme Court has made a mockery of the entire democratic process.
What is strange is that, while reviving the collegium system, the apex court has admitted to serious flaws in its functioning and asked the Government to suggest improvements. If the Bench is open to suggestions here, it could have shown similar accommodation over the NJAC by asking the Government to improve upon areas it found unacceptable, instead of demolishing the commission itself. But the apex court appeared determined to “free the judiciary from executive and political control”. It had a problem with the presence of the Prime Minister, the Opposition leader and the law Minister in the selection process and it had a problem with the ‘two eminent persons' as well. The fact is: Judiciary has been largely free from executive and political control. The NJAC wouldn’t have changed this reality.