Sunday, November 01, 2015

Judicial paranoia or political overreach?

The Supreme Court has proved that it does not fear asserting its views candidly even if it means wading into a raging controversy through its judgment in what is called “Supreme Court Advocates-on-Record Association and another vs Union of India”. The 4 to 1 landmark decision has invalidated the Constitution 99th Amendment and the National Judicial Appointments Commission (NJAC) Act thereby ruffling many political feathers.

The significance of this watershed judgment lies in the fact that, in the words of Justice Kurian Joseph, one of the five judges who heard the case,
“If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the Constitution and once the constitutional structure is shaken, democracy collapses.”

Separation of powers among the three wings of our Constitutional democracy, namely judiciary, legislature and executive is sacrosanct. Equally sacred is the independence of judiciary. The Supreme Court is jealously guarding its exclusive right to appoint and transfer judges of the High Court and the Supreme Court through the ‘Collegium System’ which was created in the year 1993. Parliament’s attempt to replace the Collegium consisting of three senior-most judges of the Supreme Court by NJAC has now come to nought.

NJAC was supposed to consist of six members
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;
(c) the Union Minister in charge of Law and Justice – Member, ex officio;
(d) two eminent persons, to be nominated – Members.

The Court found that involving the Law Minister and two eminent persons in NJAC to select judges amounted to dilution of judiciary’s independence.

The Statement of Objects and Reasons for the NJAC Bill, inter- alia, stated, “ The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Court. "

There is clearly a world of difference in perceptions of the legislature and the judiciary. It is argued by some that the NJAC Bill was passed unanimously by both Houses of Parliament and so judiciary cannot overrule it. This is at best an overly enthusiastic argument by ardent devotees of democracy.

Finance Minister, Arun Jaitley, has faulted the judgment on three counts. In his view, the Court has looked at only one Basic Structure of the Constitution (apropos His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.)  namely independence of the judiciary while ignoring five other basic structures namely parliamentary democracy, elected government, council of ministers, elected prime minister and elected leader of opposition.

He has criticized the decision as tyranny of the unelected over the elected. This is a very strong statement that is normally not made by a senior minister and that too by one who is a lawyer himself. The judgment has really spawned an ideological warfare between judges and politicians. (It is a bit surprising when the Chief Justice of India claims, “I have not come across a single word written against the judgment”.)

The third reason given by the minister is that the government appointees like CAG and Election Commissioners are credible and therefore the Court need not have any apprehension about the two eminent persons who would be members of NJAC. (However, there are instances of controversial appointments by the government.)

Intense passions generated by this judgment will keep the controversy alive for a long time. The government is likely to seek review of the judgment. In the meantime, the Supreme Court has started reviving the Collegium system which was allowed to hibernate during the pendency of the case. During the case hearings, the Attorney General had opined that the Collegium system was dead as a dodo with the passage of NJAC Bill. This view is a harbinger of another hiccup.

In the U.S., judges of the Supreme Court are nominated by the President subject to confirmation by the Congress. This arrangement is working reasonably well despite the President and Congressional majority frequently being of rival political parties. Though the views of judges are generally predictable depending on which President nominated them, there have been illustrious exceptions when some judges took unexpected positions to render fair justice. It is a pity that India is not so lucky.

As an aside, there is some comic relief in noting that page 8 of the Recusal Order accompanying the judgment refers to 120 billion ordinary citizens of this country. Our population is thankfully only one-hundredth of this figure.

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