The founding fathers of our Constitution were wedded to ideals of freedom and democracy. They were victim of judicial process during British Raj. Hence consciously they enacted provisions in our Constitution vesting power of appointment of judges to the President of India in Article 124 and 217 to safeguard judiciary from political interference.
While guarantying a set of fundamental rights to the citizens, they gave the judiciary a role of an umpire to protect freedom and democracy. These Constitutional pledges were, however, thrown to winds after 27 years of independence. Such high dream and faith of the founding fathers of the Constitution on their successors got a serious beat, when emergency was proclaimed and fundamental rights were suspended and the judicial system was crippled. All the Constitutional authorities who had taken oath to save the Constitution failed to oblige their pledge. Our judiciary failed to protect the citizens during the most trying time of independent India’s history. The political executive which was duty bound to protect freedom and uphold rule of law “Terrorized the citizens resulting in a complete loss of faith of people …” observed Saha Commission which inquired in to emergency excesses. In an article in JP Commemoration Volume published on March 18, 1979 Narayan Desai observed, “The country then was completely terrorized. The so called intellectuals had started singing songs in praise of emergency.” Noted jurist MC Chagla in another article in the magazine described JP as saviour of democracy as his effort and suffering ultimately paid off. According to him, “Our first fight for freedom was led by the father of nation Gandhiji. Jayaprakashji has led the second fight for freedom and civil liberties”. Charles Ashman says judiciary is the “last arena for survival of democracy.”
The country is proud to have been served by many illustrious Judges like Justice HR Khana who resisted abrogation of fundamental rights during emergency at the cost of his office, for which he was superseded and denied elevation to the post of Chief Justice.
The country is equally indebted to Justice VR Krishnayer, Justice Chandrachud and Justice Bhagabati for having regretted for failing to defend freedom in emergency. (Rajes Singh, Pioneer dtd. 31.12.2014). During the debate in the CA on the subject HV Kamath had visualised the judges to be “Model of judicial independence” while Dr Ambadkar had favoured a balancing process by supporting in favour of a collective exercise involving judiciary, executive and president.
The process of appointment of judges is relevant to secure judicial independence and to secure right of citizens. The power to make laws regulating judicial appointments flows from Article 124 and 217 as originally enacted. The original Constitutional provision has gone under several changes during last 68 years. In 1993 the bench presided by Justice JS Verma gave the Chief Justice and two senior Judges primacy in the matter giving rise to concept of collegiums. Subsequently, demand for review of above ruling was sought in many quarters. In 1998 while reviewing the matter, the Supreme Court concurred with the earlier verdict but enlarged the strength of collegiums to four senior judges giving absolute power to judiciary in appointment of judges. However, the demand to replace the collegiums system continued to be aired by jurists.
NDA -I Government had established a commission headed by former Chief Justice MN Venkatchaliah to review the working of the Constitution, which also suggested for replacement of collegiums system by creating an independent institution like NJAC. Thus the NJAC was outcome of a long exercise of legal debate and the call for change of the present system originated from legal fraternity. In fact NJAC is brain child of jurists.
Accordingly the UPA Government initiated actions and framed a draft law on NJAC but failed to pass it in the Parliament. In 2014 the NDA Government led by Prime Minister Narendra Modi reenacted the NJAC and accompanying Constitutional amendment after a series of consultations and got it approved by the Parliament which was ratified by two third State Assemblies. Appointment to the judiciary should be transparent, merit centric and corruption free as society regards Judges as incarnation of lord “Dharma Avatar”. NJAC aimed a good beginning to reform the process of judicial appointments. Its validity was challenged in the Supreme Court where it was struck down by 4:1 majority on October 16 last along with 99th Constitutional amendment which was an enabling provision for creation of the NJAC.
The key rationale behind the majority opinion appears to be that independence of judiciary being an essential ingredient of the basic structure of the Constitution, presence of the law Minister and two eminent persons in selection process would impede judicial independence. However, dissenting the majority view, Justice J Chelameswar who was part of the bench has reportedly observed that primacy of judiciary is “Empirically flawed without any basis in the Constitutional history of nation” concluding “reform that you may preserve”. (Quoted from English daily Hindu dated 17.10.2015)
The verdict has created reactions/opinions from various quarters including media, public leaders, Bar and former Judges.
In a Parliamentary democracy institutions are governed by firm legislative measures. Hence, legislature is the right forum for discussion and debate in shaping any legal instrument. In a way, the Supreme Court of USA is a political institution. From the manner in which its judges are appointed, but it’s functioning is absolutely non-political. The Judges of USA are nominated by the President, but their appointments are publicly screened and approved and confirmed by majority of Senate to hold their office “during good behaviour”. In France, judges are appointed by a very big committee headed by chief justice. In Australia the executive nominates names of judges. So almost in all democracies executive is not kept aloof from the process of appointment to judiciary.
Judicial independence is not the sole concern of judiciary alone. Public as well as Bar are more concerned to judicial independence as they are on the receiving end. Hence, challenge to judicial reform must be met by shaping collective wisdom of citizens, Bar, Government and judiciary. In view of such vivid opinions in the Bar, Bench as well as among citizens, the law Ministry/law Commission should interact with Bar Council of India, State Bar Councils and the Supreme Court Bar Association to arrive at consensus in the matter of judicial reform. I was a law teacher for about a decade in a university law college. I am aware of problem of legal education. I firmly believe that a written test on any constitutional subject simply for one hour would eliminate majority of prospective candidates for any legal office. There should be proper evaluation of prospective candidates for any constitutional post to eliminate favour and protect merit. Hence, the problems of reform lingering since decades cannot be solved instantly. We are grateful to the Supreme Court for admitting the flaws in the collegiums system. We are equally grateful to the Prime Minister for having taken up the NJAC law which created the atmosphere when the urgency and necessity of reform is being emphasized. If NJAC would not have been enacted perhaps the demand for reform would not have gained such momentum. As a long term measure, a law is needed to authenticate and achieve regularity to the process. Since legislation is the job of Parliament, let a draft law on the basis of consensus be prepared by a court appointed committee of legal experts and then sent to the Government for vetting and consideration by the Parliament.
(The writer is a former Deputy Speaker of the Odisha Assembly, a lawyer and a BJP leader. Mob: 9437412877)