Abolishing the collegium system of appointing judges will erode the judiciary’s powers to keep a check on the executive and the legislature
Parliament passed two crucial Bills recently to introduce a new mechanism to appoint judges of the Supreme Court and High Courts, that will ultimately lead to the scrapping of the existing collegium system. One is the Constitution Amendment Bill and the other one is the National Judicial Appointments Commission Bill, 2014. Both were passed in both Houses of Parliament after opposition parties fell in line, paving the way for the smooth passage of the Bills in both Houses.
Attempts by the political class to project the National Judicial Appointments Commission as a harbinger of transparency, however, need to be viewed with caution. Politicians have an axe to grind against the higher judiciary which has often given discomforting judgements. For example, the judiciary, in a bit to cleanse the political system, has ordered that elected leaders declare their assets, educational qualification and criminal antecedents.
The exercise to change the procedure for appointment of judges was initiated in 2009 by the Union Ministry of law and Justice. However, the Bills could never cross the floors of Parliament as no political party had the numbers to push through such a controversial amendment with such far-reaching consequences. A lot of time and effort thereafter went into formulating the amendments and creating consensus among the parliamentarians as well as building up atmospherics within media.
Four Public Interest litigations against the proposed Bills were filed in the Supreme Court, challenging the validity of the new mechanism. The Advocates Association petition brings seriousness to the matter as it has been furthered by senior advocate Fali S Nariman. On August 25, the court declined to admit these PIls, terming them as premature — the Bills against which these PIls are being moved, have not yet completed the parliamentary process.
There can be no denying that the existing collegium system has a number of shortcomings. Disturbing examples of corruption in the higher judiciary has been brought to the public knowledge through sensational disclosures by jurists themselves. However, such shortcomings should be addressed through judicial accountability mechanisms; they must not become an excuse to rob the judiciary of its independence. The political class’s decision to abolish the collegium system allows the executive to now call the shots in the appointment of judges. This is a clear case of throwing the baby out with the bath water.
Indeed, this is the greatest assault on the judiciary by the political class. It is a fact that if there is any entity in our polity that can rein in the legislature and executive from abusing their powers, it is the judiciary. However, if the judiciary itself is tamed and turned into a pet through pliant appointments by the political class, who will save the citizens from the tyranny of the legislature and the executiveIJ
The battle between the legislature and the judiciary is not over yet. The constitutional amendment, cleared by the two Houses of Parliament, needs ratification by the State Assemblies and approval by the President. The Supreme Court has the power to review the Bill before the President gives his assent. It will be interesting to see how the Supreme Court reacts at that stage. How will the Supreme Court protect its territory under such an attack from the political classIJ Will it succumb or will it strike backIJ The answer to these questions will not only be watched keenly by the legal fraternity but by every vigilant citizen who understands its long-term consequences.